* Pursuant to 5 TH C IR

. R. 47.5, the Court has determined that this

opinion should not be published and is not precedent except under

the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

March 4, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 03-30403

JEROME C. HAAS, III,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

For the Western District of Louisiana

(01-CV-1320)

Before REAVLEY, DAVIS, and DeMOSS, Circuit Judges.

PER CURIAM: *

Plaintiff-Appellant Jerome C. Haas, III (“Haas”) seeks

reversal of the district court’s decision to affirm the decision of

the Administrative Law Judge (“ALJ”) to deny Haas Supplemental

Security Income (“SSI”) and Social Securit y Disability benefits.

The ALJ found that Haas was not disabled, that he could perform a

range of sedentary work, and that there are a significant number of2

those jobs in the national ec onomy. Haas argues that the ALJ

failed to give proper weight to the opinions of Haas’s treating

physicians and failed to provide a reasonable explanation for a

conflict between testimony by the vocational expert (“VE”) and the

Dictionary of Occupational Titles (“DOT ”). Because we find that

the proper legal standards were used to evaluate the evidence and

the ALJ’s decis ion was supported by substantial evidence in the

record, we AFFIRM the decision of the district court.

BACKGROUND

Haas applied for SSI on September 29, 1999, and Social

Security Disability benef its on November 3, 1999. These

applications were denied. In his applications, Haas alleged he

became disabled on January 9, 1998; however, in his disability

report, Haas asserted that he was first bothered by symptoms on

that date but did not become unable to work until January 1999.

Haas stated that he stopped wo rking due to severe back pain and

neck impairments and that he had undergone three back surgeries and

suffered from degenerative disk disorder and osteoporosis. Haas’s

prior work experience was in the construction business: as an

electrician helper, a safety technician, and a safety supervisor.

Haas’s medical history includes a March 1999 stair accident

resulting in minimal spurs and calcification at disk L4; a July

1999 fall result ing in multiple rib fractures; and several back

surgeries, the latest being an L5 laminectomy and L4-5 diskectomy3

in August 1999.

In October 1999 Haas was examined by Dr. Frank Lopez, who

determined Haas had a chronic pa in condition and post-traumatic

stress disorder. Dr. Lopez suggested long-term physical therapy

and counselor services; he also indicated t hat with physical

therapy Haas could obtain enough strength in his back and shoulders

to return to gainful employment.

Haas underwent a consult ive examination in December 1999 in

connection with his claim for disability benefits. Dr. Anand Roy

noted that Haas had a history of back surgery with limitation of

flexion and extension of the back; difficulty walking and positive

leg-raising; mild reduction of flexion of the neck; and mild grip

loss, but essentially normal fine and dextrous movement of both

hands. Dr. Roy suggested Haas refrain from lifting weight and

working on uneven surfaces or at heights, due to his back problems.

Haas also underwent a consultive neuropsychiatric examination

in February 2000 in connection with his disability benefits claim.

Dr. Aretta Rathmell, a psychiatrist, noted that Haas sat back in

her couch with his legs propped up and appeare d to be totally

comfortable. Dr. Rathmell’s overall impression was that Haas had

depression secondary to his medical problems and that he was

anxious with a short attention span. She recommended that Haas

receive therapy on an outpatient basis.

A residua l functional capacity assessment provided by state

Disability Determination Service medical consultants in February4

2000 indicated that Haas was limited to light work activity. The

associated psychiatric report noted Haas was depressed about his

condition but was capable of simple, unskilled work.

In September 2000 Dr. Brian Willis, who had performed Hass’s

August 1999 back surgery, performed a radiological examination on

Hass. Tests showed degenerative changes resulting in a narrowed

segment of the cervical spine but no evidence of spinal cord

compression. Dr. Willis also performed an electromyography (“EMG”)

that was suggestive of upper motor neuron disease, such as Lou

Gehrig’s disease, but not conclusive. Dr. Willis indicated he did

not observe significant spinal cord or nerve root compression, nor

did he see the need for additional surgery.

Haas requested that his case b e adjudicated by an ALJ. A

hearing was held on February 9, 2001, at which Haas was represented

by an attorney. Haas was 42 at the time of the hearing, with a

high school education an d one year of college. At the hearing,

Haas complained of headaches, shoulder problems, loss of strength

and numbness in his upper and lower extremities, muscle spasms, and

constant back pain. He also stated he felt depressed and anxious,

and had trouble with his concentration. Haas testified that he

watches TV, reads, and takes care of his children but has no social

activities. A VE then testified that given the limitations as to

Haas’s age, education , past work experience, and determined

residual functional capacity, which the ALJ had assessed to be1 The DOT defines “sedentary work” to mean:

Exerting up to 10 pounds of force occasionally (Occasionally:

activity or condition exists up to 1/3 of the time) and/or a

negligible amount of force frequently (Frequently: activity or

condition exists from 1/3 to 2/3 of the time) to lift, carry,

push, pull, or otherwise move objects, including the human

body. Sedentary work involves sitting most of the time, but

may involve walking or standing for brief period s of time.

Jobs are sedentary if walking and standing are required only

occasionally and all other sedentary criteria are met.

DOT, Appendix C.

2 The ALJ referred to subpart (b) of 20 C.F.R. §§ 404.1520 and

416.920 in his decision, but the proper subpart is (c).

5 limited to sedentary work, 1 such a pers on could perform as a

messenger or assembler at the sedentary level. The VE further

testified that at t he sedentary level, there were 7000 messenger

positions in the United States, with 335 in Louisiana, and 104,000

assembler positions in the United State s, with 600 in Louisiana.

The VE also stated that at the light level of exertion, there were

a larger number of both messenger and assembler jobs available.

The VE did not list the DOT numbers or descriptions for these jobs.

The ALJ determined that Haas was not considered disabled to be

eligible for SSI and Social Security Disability benefits. Although

the ALJ found that Haas was not gainfully employed, Haas did have

an impairment or combination of impairmen ts considered “severe”

under 20 C.F.R. §§ 404.1520(c) and 416.920(c), 2 and Haas could not

perform his past relevant work, the ALJ also determined that Haas

was not unable to engage in any substantial gainful activity by

reason of any medically determinable physical or mental impairment6

because he could perform a significant range of sedentary work, of

which there was a significant number of jobs in the national

economy. Haas did not rebut this finding.

Haas then fil ed this action challenging the ALJ’s findings.

The magistrate judge issued a report an d recommendation that the

ALJ’s decision be affirmed and Haas’s complaint be dismissed; Haas

r esponded with objections. The district court adopted the

magistrate’s report and recommendations and dismissed Haas’s

complaint. Haas timely appealed.

DISCUSSION

T his Court’s review of the Commissioner’s final decis ion to

deny benefits under the Social Security Act, per 42 U.S.C.

§ 405(g), is limited to two inquiries: (1) whether the proper

legal standards were used in evaluating the evidence and (2)

whether the decis ion is supported by substantial evidence in the

record. B rown v. Apfel

, 192 F.3d 492, 496 (5th Cir. 1999)

(citation omitted).

The Social Security Act defines “disability” as the “inability

to engage in any substantial gainful activity by reason of any

medically determinable or mental impairment which can be expected

to result in death or which has lasted or can be expected to last

for a continuous period of not less than 12 months.” 42 U.S.C.

§ 423(d)(1)(A). A sequential five-step approach is used to

determine whether a claimant qualifies as disabled. 20 C.F.R.7

§§ 404.1520(a), 416.920(a). The claimant bears the burden of

proving the first four steps to show that: (1) he is not presently

engaged in substantial gainful activity; (2) he has a severe

impairment; (3) the impairment is either listed or equivalent to an

impairment listed in the appendix to the regulations; and (4) if

the impairment is not equivalent to one listed in the regulations,

the impairment still prevents him from performing past relevant

work. Leggett v. Chater , 67 F.3d 558, 563 n.2 (5th Cir. 1995)

(citations omitted). Once the claimant proves the first four

steps, the Commissioner ha s the burden of establishing that the

claimant can perform substantial gainful em ployment available in

the national economy. G reenspan v. Shalala

, 38 F.3d 232, 236 (5th

Cir. 1994) (citing Bowen v. Yuckert

, 482 U.S. 137, 146 n.5 (1987)).

The burden then shifts back to the claimant to rebut this finding.

Newton v. Apfel

, 209 F.3d 448, 453 (5th Cir. 2000) (citation

omitted). A determination at any step that the claimant is or is

not disabled ends the inquiry. Leggett , 67 F.3d at 564.

If the findings of the Commissioner are supported by

substantial evidence in the record as a whole, the findings are

conclusive and the decision must be affirmed. 42 U.S.C. § 405(g);

Richardson v. Perales

, 402 U.S. 389, 390 (1971). “Substantial

evidence is that which is relevant and sufficient for a reasonable

mind to accept as adequate to support a conclusion; it must be more

t han a scintilla, but it need not be a preponderance.” Leggett

,8

67 F.3d at 564 (citation omitted). Evidentiary conflicts are for

the Commissioner, not the courts, to resolve. Brown , 192 F.3d at

496 (citation omitted). Thus, this Court may not reweigh the

evidence, but may only review the record to determine whether it

contains substant ial evidence in support of the Commissioner’s

decision. Leggett , 67 F.3d at 564 (citation omitted).

Whether proper le gal standards were used in evaluating the

evidence.

Haas d oes not dispute that the ALJ properly considered the

inquiry to be whether Haas was under a disability within the

meaning of the Social Security Act. The ALJ also undertook the

proper five-step analysis; finding (1) Haas was not engaged in

substantial gainful activity; (2) Haas had a severe impairment or

combination of impairments based on the regulations; (3) however,

Haas’s impairments were not severe enough to meet or medically

equal one of the impairments listed in Appendix 1, Subpart B,

Regulations No. 4; but (4) Haas is unable to perform any of his

past relevant work. Indeed, Haas had met his initial burden. At

step five, however, the ALJ determined that Haas had the residual

functional capacity to perform a “significant range of sedentary

work” and that such jobs were available in significant numbers both

nationally and in Louisiana. Because the Commissioner had met its

burden, the ALJ ruled against a finding of disability.

The first point of error Haas puts forth on appeal is a legal

one: that contrary to the requirements of SSR 96-5p, 1996 WL9

37 4183 (S.S.A.), and N ewton

, the ALJ disregarded the opinions of

Dr. Lopez and Dr. Willis. Social Security Ruling 96-5p states that

whether a claimant is disabled under the Social Security Act is an

issue reserved to th e Commissioner; however, “our rules provide

that adjudicators must always carefully consider medical source

opinions about any issue, including issues that are reserved to the

Commissioner.” 1996 WL 374183 (S.S.A.), at *2. In N ewton

, we held

“absent reliable medical evidence from a treating or examining

physician controverting the claimant’s medical specialist, an ALJ

may reject t he opinion of the treating physician o nly if the ALJ

performs a detailed analysis of the treating physician’s views.”

209 F.3d at 453 (emphasis in original). Haas contends the ALJ

instead relied upon the opinions of non-examining physicians, Dr.

Roy and Dr. Rathmell, to determine he was capable of performing

light or sedentary work. Haas also claims the ALJ did not address

the fact that his treating physicians’ opinion s were consistent

with those of the consultive examiners.

Here, Haas does not specify what opinions of Dr. Lopez and Dr.

Willis the ALJ allegedly rejected; Haas merely cites to the

doctors’ letters detailing their examinations of him. Although Dr.

Lopez stated that Haas had a chronic pain condition with back and

neck problems and post-traumatic stress disorder, an d suggested

therapy and counseling, Dr. Lopez did not list any limitations in

activity that conflicted with the ALJ’s findings. In fact,10

Dr. Lopez indicated that with physical therapy, Haas could fully

mobilize his back and regain the strength to return to gainful

employment. Haas himself considers Dr. Lopez’s opinions to be

consistent with those of th e consultive examiners. Therefore,

while the ALJ did not specifically mention Dr. Lopez’s letter in

his decision, given Haas has failed to identify any specific

conflict and the absence of any obvious conflict, there is no error

with regard to the weight the ALJ gave Dr. Lopez’s opinions.

Haas makes the same argument wi th regard to Dr. Willis’s

opinions. Dr. Willis stated nothing definitive, only that he could

not determine wheth er Haas was suffering from a degenerative

condition of the cervical cord and that Haas’s EMG was inconclusive

as to upper motor neuron disease. The ALJ specifically considered

and noted this uncertain finding by Dr. Willis, and when asked by

the ALJ, Haas testified that he was still in the process of getting

a second opinion. It is clear here that the ALJ did not reject or

disregard Dr. Willis’s opinions. It is also clear that both

Dr. Lopez’s and Dr. Willis’s opinions were not incompatible with,

but were consistent with, the consultative opinions of Drs. Roy and

Rathmell. In fact, the ALJ found Haas’s impairments to be m ore

limiting than what the state examiners and physicians and Haas’s

own physicians found, at the sedentary level instead of the more

strenuous light level. Thus, we also find no error with regard to

the weight given to Dr. Willis’s evidence by the ALJ. After11

reviewing the legal analysis undertaken by the ALJ, we find that

the proper legal standards were used to evaluate the evidence in

Haas’s case.

Whether substantial evidence existed to support the ALJ’s decision.

When a claimant suffers from impairments th at potentially

preclude him from performing a significant number of l ight,

unskilled jobs, such that application of the Medical-Vocational

Guidelines is inappropriate, the Commissioner must rely on a VE or

similar evidence to support a finding regarding the ability to

perform a certain job. S ee Carey v. Apfel

, 230 F.3d 131, 145 (5th

Cir. 2000). To support a determination of not disabled, the

hypothetical questions posed to the VE by the ALJ must reasonably

incorporate all disabilities of the claimant recognized by the ALJ,

and the claimant must be afforded the opportunity t o correct

deficiencies in the ALJ’s questions. B oyd v. Apfel

, 239 F.3d 698,

707-08 (5th Cir. 2001)(citing Bowling v. Shalala

, 36 F.3d 431, 436

(5th Cir. 1994)).

The second point of error Haas puts forth is an evidentiary

one that concerns conflict between the VE’s testimony as to the

exertional level for a messenger and that provided for that job in

t he DOT, and the ALJ’s failure to explain this conflict. Haas

spec ifically points to DOT 239.677-010 (copy messenger) and

230.663-010 (outside deliverer), which are both character ized as3 The DOT defines “light work” to mean:

Exerting up to 20 pounds of force occasionally, and/or up to

10 pounds of force frequently, and/or a negligible amount of

force constantly (Constantly: activity or condition exists 2/3

or more of the time) to move objects. Physical demand

requirements are in excess of those for Sedentary Work. Even

though the weight lifted may be only a negligible amount, a

job should be rated Light Work: (1) when it requires walking

or standing to a significant degree; or (2) when it requires

sitting most of the time but entails pushing and/or pulling of

arm or leg controls; and/or (3) when the job requires working

at a production rate pace entailing the constant pushing

and/or pulling of materials even though the weigh t of those

materials is negligible. NOTE: The constant stress and strain

of maintaining a prod uction rate pace, especially in an

industrial setting, can be and is physically demanding of a

worker even though the amount of force exerted is negligible.

DOT, Appendix C.

12 having an exertiona l level of light, 3 as opposed to sedentary.

Haas asserts the ALJ’s reliance on the VE’s testimony is also

misplaced because i t did not support the ALJ’s finding as to the

number of available sedentary assembler jobs. Also, no DOT numbers

were given for the jobs cited.

This Court has held that where there is a conflict between the

VE’s testimony and the DOT, the ALJ may rely upon the VE’ s

testimony, provided that the record reflects an adequate basis for

do ing so. C arey

, 230 F.3d at 146. While we noted that a VE’s

erroneous classification of the exertional level or skills required

to perform a particular job could call into question the probative

value and reliability of such testimony, we also made it clear

that:13

[C]laimants should not be permitted to scan t he record

for implied or unexplained conflicts between the specific

testimony of an expert witness and the voluminous

provisions of the DOT, and then present that conflict as

r eversible error, when the conflict was not deemed

sufficient to merit adversarial development in the

administrative hearing.

Id. at 146-47. Social Security Ruling 00-4p provides that

a djudicators should identify and obtain an explanation for an y

conflicts between the VE’s evidence and the DOT, and explain in

their decision how any identified conflicts were resolved. 2000 WL

1898704 (S.S.A.), at *2.

Here, the ALJ solicited the testimony of a VE. As is usual in

such cases, the ALJ posed hypothetical questions to the VE, asking

the expert to address Haas’s residual functional capacity for work

in light of his given set of limitatio ns and impairments.

Specifically, the ability to perform sedentary and light work with

the additional limitations of the work being simple and repetitive

and an assumption that the hypothetical claimant had mild to

moderate pain and would have to change positions from time to time

to relieve his symptoms. The VE identified 7000 messenger jobs

nationwide at the sedentary level that would fit the hypothetical

criter ia, with 335 in Louisiana, and 104,000 assembler jobs

nationwide at the sedentary level, with 600 in Louisiana. The VE

stated that more of those positions were available at the light

exertion level. The ALJ then added to the hypothetical question

the assumptio n that the hypothetical claimant would have all the14

specific physical and mental limitations the ALJ eventually found

Haas to have. The VE responded that these assembler and messenger

jobs could still be done.

Both messenger jobs cited by Haas from the DOT state that the

physical demand requirements are in excess of sedentary work. DOT

239.677-010 (showing strength as li ght for copy messenger); DOT

230.663-010 (same for outside deliverer). However, SSR 00-4p

clarifies that the DOT lists the maximum requirements for a

position as it is generally performed, not the full range of

requirements. 2000 WL 1898704 (S.S.A.), at *3; s ee also Fenton v.

Apfel

, 149 F.3d 907, 911 (8th Cir. 1998) (“[T]he DOT , in its job

definition, represents approximate maximum requirements for each

position rather than the range.”). Clearly, “the categorical

requirements listed in the DOT do not and cannot satisfactorily

answer every [] situation.” C arey

, 230 F.3d at 146. Moreover, the

DOT does provide for assembler jobs listing maximum physical demand

requirements of sedentary exertion. S ee, e.g.

, DOT 700-684-014.

Therefore, the VE’s identification of a lesser number of such

positions being available at the sedentary level is not necessarily

a conflict with the DOT.

As for Haas’s contention that the VE’s testimony does not

support the ALJ’s finding as to the number of sedentary assembler

jobs, it fails because the ALJ based his findings on the precise

figures outlined by the VE. Additionally, Haas cites no support15

for his claim that the DOT numbers for positions identified by the

VE must be given.

We do note that the VE did not provide an explanation or

supporting authority for drawing a distinction between the

exertional levels of the messenger and assembler positions, but we

also note that Haas had an opportunity to but did not raise the

issue of this alleged conflict at the hearing before the ALJ so the

ALJ could recognize and explain any potential conflict. What we

are left with is the VE’s clear and unchallenged testimony that

even considering all of Haas’s additional personal limita tions –

including a sit/stand-at-will option; only occasional bending and

twisting; limited squatting and kneeling; slightly limited

fingering and grippi ng; the need to avoid uneven surfaces and

unprotected heights; low noise; routine and repetitive

instructions; and limited contact with the public and his coworkers

– a significant number of messenger and assembler jobs were

available at the sedentary level to provide Haas substantial

gainful employment. Overall, we find that substantial evidence

existed to support the ALJ’s finding that Haas was not disabled for

purposes of the Social Security Act.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing, and for the reasons set forth above,

we conclude that the ALJ used the proper legal standards to16

evaluate the eviden ce and that substantial evidence existed to

support finding for the Commissioner instead of Haas. Therefore,

we AFFIRM the decision of the district court below.

AFFIRMED.