     Case: 10-50576 Document: 00511336460 Page: 1 Date Filed: 12/30/2010




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

                                                 FILED
                                                                         December 30, 2010

                                     No. 10-50576                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JOE H. HERRERA,

                                                   Plaintiff–Appellant
v.

COMMISSIONER OF SOCIAL SECURITY, MICHAEL J. ASTRUE,

                                                   Defendant–Appellee




                    Appeal from the United States District Court
                         for the Western District of Texas
                                    1:09-CV-683


Before KING, BENAVIDES, and ELROD, Circuit Judges.
PER CURIAM:*
       Appellant Joe H. Herrera appeals from a final judgment of the district
court affirming the decision of the Commissioner of the Social Security
Administration denying disability benefits. We find that substantial evidence
supported the Commissioner’s decision to deny disability benefits, and affirm the
judgment of the district court.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
     Case: 10-50576 Document: 00511336460 Page: 2 Date Filed: 12/30/2010




                                   No. 10-50576

                               I. BACKGROUND
      Herrera, previously employed as a concrete truck driver, filed for
Disability Insurance Benefits on November 30, 2006.            Herrera alleged an
inability to work beginning August 21, 2006, when he slipped from a ladder on
his truck, sustaining a blow to the left side of his chest in the fall.
      After denial of his application, Herrera requested a hearing before an
Administrative Law Judge (“ALJ”), which was held on July 7, 2008. Herrera,
represented by counsel, testified that he was unable to work due to constant
back pain unresponsive to pain medication or physical therapy, which has
restricted his ability to lift and carry more than five to ten pounds, and sit or
stand for extended periods of time. He also testified that the pain limited his
ability to engage in daily activities such as bathing and dressing without
assistance. Evidence in the record shows that Herrera has also been diagnosed
with diabetes mellitus, acid reflux, pancreatitis, and an adjustment disorder
with anxiety and depression. After the hearing and upon review of the evidence
in the record, the ALJ denied Herrera’s application for benefits in a decision
issued on September 19, 2008. The Appeals Council denied Herrera’s request
for review of the ALJ’s decision on July 30, 2009, rendering it the final decision
of the Commissioner of the Social Security Administration.
      On September 16, 2009, Herrera filed a complaint seeking judicial review
of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). In a Report and
Recommendation issued on May 10, 2010, a magistrate judge recommended that
the Commissioner’s decision be affirmed, finding that substantial evidence
supported the Commissioner’s determination that Herrera was not entitled to
disability benefits. Over Herrera’s objections, the district court adopted the


                                         2
    Case: 10-50576 Document: 00511336460 Page: 3 Date Filed: 12/30/2010




                                  No. 10-50576

magistrate judge’s Report and Recommendation and issued a final judgment
affirming the Commissioner’s decision on May 25, 2010. Herrera appeals.
                                II. ANALYSIS
      “Our review of the Commissioner’s decision is limited to two inquiries: (1)
whether the decision is supported by substantial evidence on the record as a
whole, and (2) whether the Commissioner applied the proper legal standard.”
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). “The Court of Appeals
cannot reweigh the evidence, but may only scrutinize the record to determine
whether it contains substantial evidence to support the Commissioner’s
decision.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). Substantial
evidence is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotation marks
omitted). “If the Commissioner’s fact findings are supported by substantial
evidence, they are conclusive.” Perez, 415 F.3d at 461 (citing Richardson, 402
U.S. at 390).
      A person is “disabled” within the meaning of the Social Security Act if he
is unable “to engage in any substantial gainful activity by reason of any
medically determinable physical 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). In evaluating a
disability claim, the Commissioner conducts a five-step sequential analysis to
determine
      (1) whether the claimant is currently engaged in substantial gainful
      activity (whether the claimant is working); (2) whether the claimant



                                        3
     Case: 10-50576 Document: 00511336460 Page: 4 Date Filed: 12/30/2010




                                        No. 10-50576

       has a severe impairment;1 (3) whether the claimant’s impairment
       meets or equals the severity of an impairment listed in 20 C.F.R.,
       Part 404, Subpart B, Appendix 1; (4) whether the impairment
       prevents the claimant from doing past relevant work (whether the
       claimant can return to his old job); and (5) whether the impairment
       prevents the claimant from doing any other work.
Perez, 415 F.3d at 461; 20 C.F.R. § 404.1520(a)(4). In determining whether an
impairment prevents a claimant from doing past work or any other work at steps
four and five of the analysis, the Commissioner looks to the claimant’s residual
functional capacity, which is the determination of what the claimant can do
despite his mental or physical limitations, based on all the relevant evidence in
the case record. 20 C.F.R. § 404.1545(a). “The claimant bears the burden of
showing she is disabled through the first four steps of the analysis; on the fifth,
the Commissioner must show that there is other substantial work in the
national economy that the claimant can perform.” Audler v. Astrue, 501 F.3d
446, 448 (5th Cir. 2007).
       First, the ALJ found that Herrera had not engaged in substantial gainful
activity since August 21, 2006, his alleged onset date. At step two, the ALJ
determined, upon review of the evidence, that Hererra suffered from the severe
impairments of back strain, a peripheral neuropathy, depression, diabetes
mellitus, and pancreatitis. At step three, the ALJ found that Herrera did not
have an impairment or combination of impairments that met or equaled one of
the impairments listed in Appendix 1. The ALJ then determined Herrera’s
residual functional capacity, concluding that Herrera retained the capacity to


       1
         An impairment is 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.” Loza v. Apfel, 219 F.3d 378, 391
(5th Cir. 2000) (citation and internal quotation marks omitted).

                                               4
    Case: 10-50576 Document: 00511336460 Page: 5 Date Filed: 12/30/2010




                                  No. 10-50576

      lift/carry 10 pounds frequently and 20 pounds occasionally,
      stand/walk 6 hours in an 8-hour workday, and sit 6 hours in an 8-
      hour workday. The claimant’s ability to push/pull would be limited
      to the weights given. The claimant can frequently, but not
      constantly, feel with hands and feet; consequently, the claimant
      must avoid operation of pedal controls. The claimant would also be
      precluded from more than occasionally stooping, crouching, kneeling
      and crawling.     The claimant would be able to understand,
      remember, and carry out routine step instructions and respond
      appropriately to supervisors and coworkers in jobs that do not
      require independent decision making.
Determining that Herrera was unable to perform his past work as a truck driver,
the ALJ nonetheless held that Herrera was not disabled because, considering
Herrera’s age, education, work experience, and residual functional capacity, jobs
existed in significant numbers in the national economy that Herrera could
perform. Based on the testimony of a vocational expert, the ALJ found that a
person with Herrera’s limitations could perform a limited range of light work
such as housekeeper/cleaner, cafeteria attendant, or small parts assembler.
      Herrera contends on appeal that the ALJ’s decision is not supported by
substantial evidence or the proper legal standard because (1) the ALJ failed to
determine the severity of his other mental impairments, specifically his anxiety
and learning disability, at step two of the disability analysis; (2) the ALJ failed
to assess the evidence relating to all of his mental impairments in determining
his residual functional capacity; (3) the ALJ failed to assess the effect of his
mental impairments on his ability to perform unskilled work; and (4) the ALJ
improperly assessed the effect of plaintiff’s pain in determining his residual
functional capacity. We address these arguments in turn, and find each to be
without merit.



                                        5
     Case: 10-50576 Document: 00511336460 Page: 6 Date Filed: 12/30/2010




                                       No. 10-50576

       First, we reject Herrera’s contention that we must remand this case
because the ALJ did not explicitly determine the severity of Herrera’s anxiety
or alleged learning disability,2 which Herrera contends were identified by Dr.
McMains, his evaluating psychologist, and Dr. Boulos, the state agency
psychological consultant who conducted a psychiatric review and mental
residual functional capacity assessment. Herrera is correct that, at step two of
the five step analysis, the adjudicator must determine whether any identified
impairments are “severe” or “not severe.” See 20 C.F.R. § 404.1520(a)(4)(ii), (c).
However, this case did not turn on a finding that Herrera’s impairments were
not severe at step two; rather, the ALJ concluded that Herrera was not disabled
because, despite his severe impairments, he retained the residual functional
capacity to do other work. Therefore, the ALJ’s failure to assess the severity of
Herrera’s anxiety or learning impairments at step two is not a basis for remand.
See Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (ALJ’s failure to make a
severity finding at step two not a basis for remand where ALJ proceeded to later
steps of the analysis); see also Mays v. Bowen, 837 F.2d 1362, 1365 (5th Cir.
1988) (per curiam) (“[I]f the ALJ proceeds past the impairment step in the


       2
         On appeal, the Commissioner on appeal contends that the ALJ did not err in failing
to determine the severity of Herrera’s alleged learning disability because Herrera had not put
forth any objective medical evidence to establish the existence of such an impairment, much
less that it was severe. The magistrate judge agreed with the Commissioner that “the only
evidence in the record of [Herrera’s] learning impairments is his statement that he attended
special education classes beginning in sixth grade.” Herrera apparently argues that findings
by Dr. McMains in his mental status examination establish the existence of a learning
disability. We need not decide the issue because, as explained below, assuming that the
evidence sufficed to establish a learning disability, the ALJ’s failure to determine whether it
was severe at step two was essentially harmless error. Moreover, to the extent that Dr.
McMains found that Herrera had moderate impairments in certain areas of mental
functioning, the ALJ incorporated these findings into his assessment of Herrera’s residual
functional capacity.

                                              6
     Case: 10-50576 Document: 00511336460 Page: 7 Date Filed: 12/30/2010




                                       No. 10-50576

sequential evaluation process the court must infer that a severe impairment was
found.”).
       Moreover, we also reject Herrera’s contention that these impairments meet
the criteria of any listed impairment. At step three of the analysis, “the medical
evidence of the claimant’s impairment(s) is compared to a list of impairments
presumed severe enough to preclude any gainful activity.” Loza, 219 F.3d at
390. “If the impairment meets or equals one of the listed impairments, the
claimant is conclusively presumed to be disabled. If the impairment is not one
that is conclusively presumed to be disabling, the evaluation proceeds to the
fourth step . . . .” Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (citing 20 C.F.R.
§ 404.1520(e)). Contrary to Herrera’s characterization of the record, neither Dr.
McMains nor Dr. Boulos found that any of Herrera’s mental impairments meet
or equal the criteria for a listed impairment. Dr. McMains concluded that
Herrera has “average intelligence” and social functioning within normal limits,
and only moderate impairments in memory, concentration, abstract thinking,
judgment and insight. Dr. Boulos expressly found that Herrera’s impairments
“do[] not precisely satisfy the diagnostic criteria” of any listed impairment.
Accordingly, we find no reversible error on this basis.
       Second, contrary to Herrera’s assertions on appeal, we find that the ALJ
properly considered his mental impairments in determining Herrera’s residual
functional capacity to do past work and other work. In his opinion, the ALJ
specifically referenced findings from Herrera’s mental status evaluation,
Herrera’s global assessment of functioning (“GAF”) score,3 as well as Herrera’s

       3
         “GAF is a standard measurement of an individual’s overall functioning level ‘with
respect only to psychological, social, and occupational functioning.’ ” Boyd v. Apfel, 239 F.3d
698, 700 n.2 (5th Cir. 2001) (quoting AM ERICAN PSYCHIATRIC ASS ’N DIAGNOSTIC AND

                                              7
    Case: 10-50576 Document: 00511336460 Page: 8 Date Filed: 12/30/2010




                                   No. 10-50576

treatment records and hearing testimony. Based on the evidence as a whole, the
ALJ concluded that Herrera has mild restrictions in the activities of daily living,
mild difficulties in social functioning, moderate difficulties with regard to
concentration, persistence or pace. He concluded that “[t]his determination is
consistent with the claimant’s demonstrated abilities on mental status
evaluation, which included moderately impaired concentration and social
functioning within normal limits . . . .” The ALJ incorporated these limitations
into his determination of Herrera’s residual functional capacity, finding that
Herrera “would be able to understand, remember, and carry out routine step
instructions and respond appropriately to supervisors and coworkers in jobs that
do not require independent decision making.” We find that the ALJ considered
the relevant evidence regarding Herrera’s mental impairments, and that
substantial evidence supports his conclusions.
      Third, Herrera contends that the evidence does not support a finding that
he is capable of performing unskilled work, and that the ALJ failed to properly
assess his mental impairments in determining otherwise. Herrera correctly
notes that “[t]he decisionmaker must not assume that failure to meet or equal
a listed mental impairment equates with capacity to do at least unskilled work.
The decision requires careful consideration of the assessment of [residual
functional capacity].” SSR 85-15 (1985). Social Security Ruling 85-15, upon
which Herrera relies, states that “[t]he basic mental demands of competitive,
remunerative, unskilled work include the abilities . . . to understand, carry out,
and remember simple instructions; to respond appropriately to supervision,




STATISTICAL MANUAL OF MENTAL DISORDERS at 32 (4th ed. 1994) (DSM-IV)).

                                         8
    Case: 10-50576 Document: 00511336460 Page: 9 Date Filed: 12/30/2010




                                 No. 10-50576

coworkers, and usual work situations; and to deal with changes in a routine
work setting.” See also 20 C.F.R. § 404.1521(B).
      The ALJ in this case considered Herrera’s mental impairments, and
concluded that Herrera retained the capacity “to understand, remember, and
carry out routine step instructions and respond appropriately to supervisors and
coworkers in jobs that do not require independent decision making.”         This
finding is consistent with the ALJ’s holding that Herrera retained the residual
functional capacity to perform unskilled work, and is supported by substantial
evidence.   For instance, Dr. Boulos concluded that Herrera retained the
functional capacity to “understand, remember, and carry out detailed and
complex instructions, make decisions, attend and concentrate for extended
periods, accept instructions, and respond appropriately to changes in the routine
work setting,” finding Herrera to be only “moderately limited” in these areas.
Furthermore, Dr. Boulos also found that Herrera was “not significantly limited”
in his ability to get along with coworkers or peers, and Dr. McMains found social
functioning within normal limits.
      Finally, Herrera contends that the ALJ failed to consider the effect of his
physical impairments and pain in his assessment of Herrera’s residual
functional capacity to work a 40 hour work week, as required by 20 C.F.R.
§ 404.1529 and Social Security Ruling 96-7p. Pursuant to § 404.1529(c)(1), the
adjudicator must find whether the objective medical evidence shows that the
claimant has a medically determinable impairment that could reasonably be
expected to produce the claimant’s complained-of symptoms, such as pain. If so,
the adjudicator must then evaluate the intensity and persistence of the
symptoms in order to determine how the symptoms limit the claimant’s capacity


                                       9
    Case: 10-50576 Document: 00511336460 Page: 10 Date Filed: 12/30/2010




                                  No. 10-50576

for work. Id. If the claimant’s symptoms are not substantiated by objective
medical evidence, “the adjudicator must consider all of the evidence in the case
record, including any statements by the individual . . . concerning the
individual’s symptoms” and then “make a finding on the credibility of the
individual’s statements about symptoms and their functional effects.” SSR 96-7p
(July 3, 1996). “The ALJ must consider subjective evidence of pain, . . . but it is
within his discretion to determine the pain’s disabling nature.”          Wren v.
Sullivan, 925 F.2d 123, 128 (5th Cir. 1991) (per curiam) (internal citations
omitted). Although an ALJ “is bound . . . to explain his reasons for rejecting a
claimant’s complaints of pain,” he is not required to “follow formalistic rules in
his articulation.” Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994).
      In accordance with § 404.1529, the ALJ first determined that Herrera’s
medically-determinable impairments could reasonably be expected to produce
the symptoms that Herrera alleged. However, the ALJ concluded that Herrera’s
“statements concerning the intensity, persistence and limiting effects of these
symptoms are not credible to the extent they are inconsistent with the residual
functional capacity assessment . . . .” Based on the evidence in the record, the
ALJ was “not convinced the claimant has been precluded from meeting the
demands of competitive work since August 21, 2006,” and that “ the degree of
pain alleged exceeds objective medical findings.” He found that “the evidence .
. . does not reflect symptomatology that would cause more than 1 to 2 absences
a month,” and therefore would not preclude competitive work.
       Contrary to Herrera’s assertions, the ALJ came to this conclusion after
thorough consideration and discussion of the relevant medical evidence on record
regarding Herrera’s physical impairments. This evidence included reports from


                                        10
    Case: 10-50576 Document: 00511336460 Page: 11 Date Filed: 12/30/2010




                                 No. 10-50576

his treating physician following the August 21, 2006 accident and from a number
of consultative physical examinations, and Herrera’s and his wife’s accounts of
his pain and the effect of his symptoms on his daily activities. The ALJ found
that Herrera’s physical impairments limited his abilities, but concluded that the
evidence “suggests at most symptomatology that would preclude lifting/carrying
in excess of 20 pounds occasionally and 10 pounds frequently and more than
occasionally stooping, crouching, kneeling, and crawling.” The ALJ also found
that Herrera’s medical conditions would “preclude the claimant from constantly
feeling with his hands and feet and operating foot controls.”             The ALJ
incorporated   these   limitations   into   his   residual   functional   capacity
determination. It appears that the ALJ fully considered the evidence in the
record in making his determination, and on review of the record we find that
substantial evidence supports the ALJ’s conclusions.
                             III. CONCLUSION
      For the foregoing reasons, we AFFIRM the judgment of the district court.




                                       11
