     Case: 12-40578       Document: 00512185626         Page: 1     Date Filed: 03/25/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                          March 25, 2013

                                    No. 12-40578                           Lyle W. Cayce
                                  Summary Calendar                              Clerk



DONNA M. HENDERSON,

                                                  Plaintiff–Appellant
v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

                                                  Defendant–Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                                   4:10-cv-222

Before SMITH, PRADO, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Donna Henderson (“Henderson”) appeals the district
court’s affirmance of the Social Security Commissioner’s decision denying
Henderson social security benefits because she was not disabled as of the last
day of her social security benefits coverage.
             I. FACTUAL AND PROCEDURAL BACKGROUND
       A. Factual Background



       *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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        Henderson was born in 1949, making her 53 when she was last insured for
benefits and 58 when the Administrative Law Judge (“ALJ”) rendered his most
recent decision in the case. She has a high school degree and last worked as a
licensed practical nurse in 1997. She was insured for social security benefits
through June 30, 2002.
        The present claim is not Henderson’s first. Henderson had previously filed
a claim for benefits—alleging that she had been disabled since 1976—which the
Social Security Administration denied in 1995. Later, Henderson reported
having suffered a stroke, which necessitated a 1996 laser surgery to repair the
affected area of her heart. In October 1997, while working as a licensed practical
nurse, Henderson injured her back while steadying a patient who had started
to fall.
        Later physicians noted that she had a history of mitral valve prolapse.
Neurosurgeon Marcos A. Ramos, M.D., stated Henderson previously exhibited
cardiac symptoms, and that she had undergone a successful laser surgery. In
December 1997, he noted that she was alert, oriented, talkative, and coherent.
Thereafter, in 1998, Henderson filed an application alleging disability from the
October 1997 back injury, which the Social Security Administration denied in
1999.
        In July 1999, Neurologist Daniel J. Hopson, M.D., noted that Henderson
had a history of mitral valve prolapse and cardiac arrhythmia and had possibly
suffered a small stroke in 1995. He treated her for back and left leg pain. He
noted that she denied any prior neurological symptoms, but that she was
reporting some symptoms of depression and memory loss associated with her
prior stroke. He stated she had 5/5 strength in her lower extremities. Her MRI
and EMG were negative. Hopson saw Henderson twice more in 2000, at which
point he ordered a lumbar spine MRI. The test result was normal, showing no
evidence of disc herniation or stenosis. Hopson’s records for Henderson’s July

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2000 visit noted normal gait, station, and balance, and a strength of 5/5 in the
lower extremities. In January 2001, Hopson said she suffered back injury, and
has resulting neuralgia pain, but given her negative test results he had no
further treatment recommendations. In June 2001, he noted her lumbar pain,
negative neurologic exam, and 5/5 strength assessment.
      A February 2001 record from Steven L. Remer, M.D., noted that
Henderson’s past medical history included a history of mitral valve prolapse, and
a history of cardiac arrhythmia with no recurrent problems. In July 2001,
Henderson returned to Dr. Hopson. He ordered a lumbar CT, which revealed an
annular tear, but no significant disc bulge at any level. Her strength continued
to be 5/5. In July 2002, Hopson reported that Henderson had 5/5 motor strength,
chronic lumbar pain with a recent flare-up, but no motor or sensory loss.
      On July 22, 2002, Henderson applied again for Title II disability insurance
benefits, alleging that she had been disabled since October 10, 1997, due to her
back injury and memory problems. Her insured status ended on June 30, 2002.
      On October 31, 2002, after Henderson had applied for benefits, Dr. Kabel
completed a psychiatric evaluation of her.      Henderson reported occasional
depression. Dr. Kabel noted that Henderson had “some cognitive problems” but
stated that a specialist should be consulted for more precise prognosis. He
assessed her Global Assessment of Functioning (“GAF”)—a scale used to rate the
social, occupational, and physiological functioning of adults—score at 60, based
on psychological factors alone. A score of 60 indicates “moderate symptoms,” but
is on the verge of “some mild symptoms.” He noted that she told him she gets
up every morning, has coffee, watches the news, bathes, dresses, cleans the
house, makes the bed, and runs errands. She occasionally dates and has a friend
with whom she goes out to eat or to the movies.
      In December 2002, state medical consultant A. Boulos, M.D., stated that
Henderson’s depression was secondary to the stroke and determined that

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Henderson did not have a severe mental impairment, but that what
impairments she did have resulted in mild restriction of daily activities.
      In January 2003, the lumbar spine MRI that Dr. Hopson ordered indicated
a “mild diminution in disc signal intensity without diminution in disc
height . . .[and] no focal disc protrusion or central spine stenosis or foraminal
stenosis.” His office notes from January 2003 indicate he had the impression she
had a memory disorder, but his stated plan was to continue with current pain
and depression medicines and follow up in three months. At the same visit he
also noted that she had normal speech, comprehension, strength, coordination,
gait, and balance. She also reported fatigue and decreased mood to Dr. Hopson.
He filled out an Estimated Functional Capacity Form, noting that she could
occasionally lift and carry up to ten pounds and sit four hours a day with rests,
but could not perform other postural activities. In June 2003, Hopson noted that
Henderson had sciatic nerve pain, and should stay off work. He noted that her
pain was controlled with analgesics and prescriptions from his office.
      In March 2004, Dr. Mount, a clinical psychologist, performed a
psychological evaluation of Henderson. He noted that her affect and mood were
depressed, she had some suicidal ideation, tearfulness, and anxiety.          He
diagnosed a mood disorder and a GAF of 45, indicating “serious symptoms.”
      Administrative hearings were held in 2004 and 2005. At the 2005 hearing,
medical expert David Sowell, M.D., testified that Henderson’s motor and sensory
functions were generally intact, and that there was a general lack of findings
that could confirm her reported pain. He said she had degenerative disc disease,
but that there was no evidence of nerve root compression. Henderson testified
that she had constant pain which required prescription pain relievers and
ibuprofen. She testified that she had been depressed since 2002. She testified
that she performs light housework, but had given up attending church. She said
she speaks to friends on the phone, eats out, and goes to the movies, but only

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finds relief through hot baths. She also testified that she traveled to Shreveport
to visit her daughter every few months. When asked by the ALJ whether she
sought counseling, she replied, “I don’t want to spend my life in a psychiatrist’s
office, and so I don’t go.” After she told the ALJ that doing so would do no good,
he ceased that line of questioning.
      Ultimately, the ALJ denied Henderson’s claim on June 9, 2005, finding
that Henderson was not disabled as of June 30, 2002, the date that she was last
insured.   The 2005 decision indicated that degenerative disc disease was
Henderson’s only severe impairment, and that Henderson retained the ability
to perform a significant range of light work. The Appeals Council vacated and
remanded the ALJ’s 2005 decision. The Appeals Council directed the ALJ on
remand to give further consideration to the treating and examining source
opinions, further evaluate Henderson’s subjective complaints, give further
consideration to Henderson’s maximum functional capacity, and obtain
supplemental evidence from a vocational expert.
      Another administrative hearing was held on November 13, 2007.
Henderson, her daughter, a medical expert, and a vocational expert testified.
Neurologist Susan Blue, M.D., testified that Henderson did not meet the degree
of limitations necessary to be deemed disabled.         Instead, Henderson had
symptoms consistent with a mild radiculopathy. Dr. Blue opined that, based on
the findings in the record, Henderson could lift twenty pounds frequently, lift
forty pounds occasionally, sit for two hours at a time up to six hours a day, and
crawl and bend occasionally. Dr. Blue testified to having reviewed Dr. Hopson’s
records, but stated she did not see any physical justification for his opinion. Dr.
Blue, acknowledging that Henderson experienced some pain, also stated she was
giving Henderson the “benefit the doubt” because there was insufficient objective
evidence to substantiate the limitations that Henderson claimed. Dr. Blue,



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noting that Henderson had been prescribed numerous medications, opined that
Henderson’s motivation was a problem.
      Vocational expert Tammie Donaldson, M.S., testified that Henderson’s
past work included light, unskilled work as a fundraiser, and light, skilled work
as an office nurse. Donaldson testified that an individual with Henderson’s
specified exertional and nonexertional functional limitations could perform
Henderson’s past relevant fundraising work. Donaldson also identified other
jobs that someone Henderson’s age could perform, taking into account her
education and specified limitations. Donaldson also testified as to how many
thousands of each such possible job were in Texas.
      The ALJ issued a second unfavorable decision on January 23, 2008,
finding that Henderson was not disabled because she was capable of performing
her past relevant work. Specifically, he determined that Henderson had severe
physical and mental impairments, but did not have an impairment that met or
equaled any listing through her date of insurance. The ALJ indicated that
Henderson had mild restrictions in daily activities and moderate difficulties with
concentration, persistence, or pace, but that she had no difficulties with social
functioning and no episodes of decompensation. He found that her impairments
resulted in limitations that restricted her to work that fell between light and
medium. More specifically, the ALJ determined that Henderson retained the
residual functional capacity to lift forty pounds occasionally and twenty pounds
frequently, sit for six of eight hours, and stand/walk two of eight hours (thirty
minutes at a time). She had the ability to understand, remember, and follow
simple and detailed instructions and complete repetitive tasks. According to the
vocational expert’s testimony, Henderson retained the capacity to perform her
light, unskilled past relevant work as a fundraiser. Thus, the ALJ denied her
application.



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      The Appeals Council denied Henderson’s request for review, making the
ALJ’s 2008 decision the Social Security Commissioner’s final opinion.
Henderson sought judicial review before the District Court for the Eastern
District of Texas. United States Magistrate Judge Don D. Bush recommended
that the District Court affirm the Commissioner’s decision. United States
District Court Judge Richard Schell adopted the Report and Recommendation
of the Magistrate Judge and issued a Final Judgment affirming the
Commissioner’s decision. Henderson appealed.
                             II. JURISDICTION
       The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g).
Henderson timely filed a notice of appeal. This court has jurisdiction pursuant
to 28 U.S.C. § 1291.
III. DISCUSSION
      A. Standard of Review
      The federal courts review the Social Security Commissioner’s denial of
social security benefits only to ascertain whether (1) the final decision is
supported by substantial evidence, and (2) whether the Commissioner used the
proper legal standards to evaluate the evidence. Newton v. Apfel, 209 F.3d 448,
452 (5th Cir. 2000). Substantial evidence is more than a scintilla, but less than
a preponderance. Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994). The Court
of Appeals does not re-weigh the decision, try the issues de novo, or substitute
its judgment for that of the Commissioner. Leggett v. Chater, 67 F.3d 558, 564
(5th Cir. 1995); Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994). Therefore,
a finding of no substantial evidence is appropriate only if there is a conspicuous
absence of credible evidence to support the decision. See Johnson v. Bowen, 864
F.2d 340, 343–44 (5th Cir. 1988).
      In determining whether a claimant is disabled under Title II, a five-step
“sequential evaluation” is used. First, a claimant engaged in substantial gainful

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employment at the time of her claim is not disabled. 20 C.F.R. § 404.1520(b).
Second, the claimant is not disabled if her alleged impairment is not severe.
Id. § 404.1520(c). Third, if the alleged impairment is severe, the claimant is
considered disabled if her impairment corresponds to an impairment described
in 20 C.F.R., Subpart P, Appendix 1. Id. § 404.1520(d). Fourth, a claimant with
a severe impairment that does not correspond to a listed impairment is not
considered to be disabled if she is capable of performing her past work.
Id. § 404.1520(e), (f). The fifth step involves determining whether the claimant
could perform some work in the national economy. Id. § 404.1520(g). At this
stage, the burden shifts to the Commissioner to establish that there are jobs in
the national economy that the claimant can perform, consistent with her
medically determinable impairments, functional limitations, age, education, and
work experience. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).
      B. Analysis
      On appeal, Henderson raises two issues, the first of which has several
subpoints. First, she argues that the ALJ failed to set forth a proper evaluation
of her mental impairments. Second, she disputes the ALJ’s determination that
Henderson’s account of her limitations was not entirely credible. Although she
raises specific issues, which we discuss below, ultimately, our review is limited
to whether the ALJ applied the correct legal standard and whether there is
substantial evidence supporting his decision. We affirm as to both.
      1. Whether the ALJ properly evaluated Henderson’s mental
      impairments
      As to the issue of whether the ALJ properly evaluated Henderson’s mental
impairments, she raises several subissues. She alleges that the ALJ failed to
comply with the Appeals Council’s remand order, that the ALJ did not adequately
analyze her mental impairments, and that the ALJ erred by not sufficiently
discussing his conclusions. Finally, she alleges the ALJ erred in determining her
mental residual functional capacity. We affirm the district court as to all four.

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      a. Did the ALJ fail to comply with the remand order?
      Henderson first alleges that, on remand, the ALJ failed to comply with the
Appeals Council’s remand order. As discussed above, after the first series of
hearings, the Appeals Council remanded the case to the ALJ with several
instructions: (1) give further consideration to the opinions of those that treated
and examined her as to her mental impairment; (2) evaluate her subjective
complaints; (3) with regard to her residual functional capacity, provide rationale
and references to support assessed limitations; (4) obtain evidence from a
vocational expert concerning appropriate jobs Henderson could perform and their
incidence in the national economy.
       This contention is without merit because although Henderson cites some
case law for the proposition that failure to comply with an Appeals Council order
constitutes reversible error, none is mandatory authority. In fact, all three are
district court opinions from outside the Fifth Circuit, and none is published.
Instead, the clear rule is that remand is warranted only where the ALJ’s decision
fails to apply the proper legal standard or the decision is not supported by
substantial evidence. In an abundance of thoroughness, we note however, that
the ALJ addressed each category that he was directed to evaluate on remand.
      First, the ALJ was directed to give further consideration to the treating and
examining opinions regarding Henderson’s mental impairment.                  As the
magistrate judge’s Report and Recommendation notes, the ALJ did not entirely
reject Dr. Hopson and Dr. Mount’s opinions, but instead afforded them little
evidentiary weight.     “Even though the opinion and diagnosis of a treating
physician should be afforded considerable weight in determining disability . . .
[t]he opinions may be assigned little or no weight when good cause is shown[,] .
. . [like] where the treating physician’s evidence is conclusory . . . or is otherwise
unsupported by the evidence.” Newton v. Apfel, 209 F.3d 448, 455–56 (5th Cir.
2000). In his 2008 decision, the ALJ explained that he gave little weight to

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evidence from Drs. Hopson and Mount because their opinions were inconsistent
with other evidence presented, such as Henderson’s own testimony about her
daily activities and the negative EMGs, MRIs, and normal assessment of her gait
and reflexes during examinations. As required, the ALJ addressed the factors
that must be considered before an ALJ can decline to give a treating physician’s
opinion controlling weight. See Newton, 209 F.3d at 456.
        Second, the Appeals Council directed the ALJ to further evaluate
Henderson’s subjective complaints. He did so. His 2008 decision detailed his
reasons for doubting the credibility of Henderson’s account. He noted that, at the
first hearing, Henderson testified to eating out several times a week, dating
occasionally, cooking, attending movies and visiting her daughter in Shreveport.
He held that while her impairments could have produced the alleged symptoms,
“her statements concerning the intensity, persistence and limiting effects of these
symptoms are not entirely credible,” presumably due to the personal activities
she completes.
        Third, on remand, the ALJ was to provide explanation and references to
support any assessed limitations regarding her residual functional capacity.
Before considering step four of the sequential evaluation process, the ALJ must
first    determine     the    claimant’s     residual     functional     capacity.
20 C.F.R. § 404.1520(e). An individual’s residual functional capacity is her ability
to do physical and mental work activities despite limitations from impairments.
20 C.F.R. §§ 404.1520(e), 404.1545. The ALJ spent approximately five pages
detailing his findings about her residual functional capacity, relying in part on
testimony of medical experts, including Dr. Hopson, Dr. Kaber, and at least six
others. Medical expert Dr. Sowell testified that Henderson had a residual
functional capacity for medium-level work.
        Finally, the Appeals Council had directed the ALJ to obtain the testimony
of a vocational expert on remand. Pursuant to this directive, at the hearing upon

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which the ALJ’s ultimate decision was based, vocational expert Tammie
Donaldson offered detailed testimony about job availability for someone with
Henderson’s level of education and impairment.
      Moreover, Henderson, in her request for review in front of the Appeals
Council, argued that the ALJ had not followed the Appeals Council’s remand
instructions. Had the Appeals Council thought that the ALJ had not complied
with its remand order, the Appeals Council could have granted Henderson’s
request for review, which it denied.
      b. Did the ALJ adequately analyze Henderson’s mental impairment?
      Henderson also contends on appeal that the ALJ failed to adequately
analyze her mental impairments at step two of the sequential evaluation process,
specifically in regard to her stroke. The ALJ found that Henderson had two
severe impairments: degenerative disc disease and depression. Having found
that Henderson suffered from severe impairments, the ALJ thus progressed to
step three. Henderson argues that it was error for the ALJ not to find her stroke
to be a severe impairment. The ALJ’s step two determination states in part: “the
claimant worked after her stroke and it did not constitute a severe impairment.”
Henderson argues this statement erroneously implies that because she worked
after the stroke, it cannot have been severe. The ALJ could appropriately use the
fact that Henderson continued to perform skilled work as a practical nurse for
more than two years after the alleged stroke to substantiate his conclusion that
her stroke was not a severe impairment. See Stone v. Heckler, 752 F.2d 1099,
1101 (5th Cir. 1985) (“[A]n impairment can be considered as not severe only if it
is a slight abnormality [having] such minimal effect on the individual that it
would not be expected to interfere with the individual’s ability to work,
irrespective of age, education or work experience.”) (alterations in original).
      Moreover, Henderson bears the burden of establishing a severe impairment
from the stroke. See Bowen v. Yuckert, 482 U.S. at 146 n.5 (stating that plaintiff

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bears the burden at step two of the sequential evaluation process). The ALJ’s
decision cites and applies the correct standard from Stone, 752 F.2d at 1101. The
ALJ acknowledged that Henderson reported having had a stroke, although there
is some inconsistency as to the year of the stroke. He found that she had a
normal brain MRI. The ALJ noted that an examining neurosurgeon found her
to be alert, oriented, and pleasant, with normal thought and speech. He also
noted that although Henderson self-reported memory loss due to a stroke, she
also delivered to him an articulate four-page letter she had written containing a
well-crafted and concise medical history. The ALJ had before him the report of
a treating physician, Dr. Remer, that noted a “history of mild stroke secondary
to arrhythmia with full recovery.”     Our review on this point is limited to
determining whether the ALJ applied the correct legal standard. We find that
he did, and thus did not err in finding that only Henderson’s depression and disc
degeneration were severe impairments.
      c. Did the ALJ err by not including the bases for his decision?
      Third, Henderson argues that the ALJ erred in assessing the severity of her
mental impairment by not including any discussion of the bases for his
conclusion. He determined that “[i]n activities of daily living, the claimant has
mild restrictions[,]” no difficulties in social functioning, and “moderate
difficulties” in the area of “concentration, persistence or pace[.]” Specifically,
Henderson argues that the ALJ’s findings were in error because they were
contrary to the level of limitations to which she testified. This argument is
unpersuasive. The ALJ expressly considered the criteria of mental impairment
listings. See 20 C.F.R. Pt. 404, subpt. P app. 1 ¶ 12.04. Further, questions of
credibility concerning pain are within the ALJ’s discretion. Dunbar v. Barnhart,
330 F.3d 670, 672 (5th Cir. 2003) (per curiam) (“The ALJ did not err in
discounting [claimant’s] subjective complaints of pain as inconsistent with other
evidence in the record, including the findings of physicians. The ALJ must

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consider the subjective evidence of pain, but it is within his discretion to
determine the pain’s disabling nature.” (internal quotation marks omitted)).
      Here, the ALJ outlined the seven factors that he was required to consider,
in addition to objective medical evidence, when assessing the credibility of a
claimant.   As discussed above, the ALJ did not err in determining that
Henderson’s reports about the intensity, persistence, and limiting effects of her
symptoms were not credible. He noted that medical examinations revealed full
muscle strength, intact sensations and reflexes, and normal gait and balance.
She had occasionally ceased taking pain medications on her own. A residual
functional capacity evaluation report noted that Henderson had demonstrated
inconsistent effort. He noted that Henderson had reported taking care of a pet,
going out to eat, driving, making her bed, bathing, doing chores, dating, and
traveling occasionally to Shreveport.      Additionally, the ALJ noted that he
discounted Henderson’s daughter’s testimony because it was vague, did not
contain dates, and contradicted Henderson’s own testimony. Ultimately, as
Henderson’s account of her limitations conflicted with both the state agency
medical consultants and the medical experts, the ALJ was well within his
discretion to afford her testimony little credibility.
      d. Did the ALJ err in determining Henderson’s mental residual functional
      capacity?

      Finally, Henderson argues that the ALJ erred in determining Henderson’s
mental residual functional capacity.          Specifically, Henderson claims he
disregarded evidence from Dr. Mount without a proper basis. As discussed above,
see supra III.B.1.(a)., the ALJ did not err in affording little weight to Dr. Mount,
a non-treating physician whose opinions contradicted other medical evidence and
testimony. See 20 C.F.R. § 404.1527(c). The opinion of an examining doctor must
be considered, but need not be given controlling weight. Id.



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      To the extent that Henderson claims on appeal that the ALJ erred in only
ruling out her ability to complete complex tasks without accounting for her
“moderate limitations of concentration, persistence, or pace,” that argument is
waived because Henderson failed to raise it before the district court. See City of
Dall. v. Hall, 562 F.3d 712, 723–24 (5th Cir. 2009).
      2. Whether the ALJ erred in discounting Henderson’s credibility
      Henderson’s second point of error is that the ALJ erred in discounting her
credibility. As discussed above, see supra III.B.1.(a) and (c), the ALJ adequately
supported his determination that Henderson’s allegations of her limitations were
not entirely credible.
      Ultimately, Henderson cannot meet her burden to establish that the
Commissioner’s decision applied the wrong legal standard or that the decision is
not supported by substantial evidence.
                                IV. CONCLUSION
      For the foregoing reasons, we AFFIRM the district court’s judgment
affirming the Commissioner’s decision.




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