     Case: 15-31030      Document: 00513624514         Page: 1    Date Filed: 08/04/2016




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

                                                                            FILED
                                      No. 15-31030                     August 4, 2016
                                                                       Lyle W. Cayce
MARY BOTSAY,                                                                Clerk


              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 Louisiana
                             USDC No. 2:14-CV-2573


Before STEWART, Chief Judge, and PRADO and SOUTHWICK, Circuit
Judges.
PER CURIAM: *
       The Social Security Administration concluded Mary Botsay was not
entitled to disability insurance benefits and supplemental security income.
The district court affirmed the decision. We also AFFIRM.
                  FACTS AND PROCEDURAL BACKGROUND
       Mary Botsay filed an application for disability benefits and supplemental
security income, asserting that her disability began in August 2011. At the


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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                                  No. 15-31030
onset of her alleged disability, Botsay was 57 years old. Botsay, who is high-
school educated, had a long employment history as a customer service
representative and data entry clerk. She contended she was no longer able to
work due to osteoarthritis in her right knee, a mild hallux valgus deformity in
her left foot, bilateral hand pain, and possible nerve damage in her right
shoulder. Several doctors treated Botsay over a three-year period, with others
reviewing her case on a consultative basis.
      On September 24, 2013, Botsay’s initial application for benefits was
denied by the Social Security Administration (“SSA”). Botsay requested a
hearing, at which she successfully moved to amend her disability onset date to
August 1, 2012. In May 2014, an administrative law judge (“ALJ”) determined
Botsay was not disabled because she had the residual functional capacity for
sedentary work as a customer service representative or data entry clerk with
some limitations. The Appeals Council denied Botsay’s request for review of
the ALJ’s decision. Botsay then filed suit against the SSA Commissioner
seeking to overturn the ALJ’s disability determination. The district court,
adopting the magistrate judge’s report and recommendation, concluded the
ALJ committed harmless error in explaining the outcome of one medical test.
Otherwise, the district court held substantial evidence supported the ALJ’s
assessment of Botsay’s capacity for work. Botsay timely appealed.


                                 DISCUSSION
      We do not “reweigh the evidence or substitute [our] judgment for the
Commissioner’s” in reviewing the denial of benefits. Perez v. Barnhart, 415
F.3d 457, 461 (5th Cir. 2005). Instead, we are restricted “to two inquiries: . . .
whether the [administrative] decision is supported by substantial evidence on
the record as a whole, and . . . whether the Commissioner applied the proper
legal standard.” Id.; see also 42 U.S.C. §§ 405(g), 1383(c)(3). Substantial
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evidence “is more than a mere scintilla and less than a preponderance.” Perez,
415 F.3d at 461 (quotation marks omitted).
      Relevant regulations establish a “five-step analysis” to determine
whether a claimant is eligible for benefits: (1) the claimant is not engaged in
“substantial gainful [work] activity”; (2) the claimant’s impairment is “severe”;
(3) the impairment “meets or equals . . . an impairment” listed in Appendix 1
of the SSA regulations; (4) the claimant lacks the residual functional capacity
to perform “past relevant work”; and (5) there is no other substantial gainful
activity that the claimant would be able to perform. See id.; see also 20 C.F.R.
§ 404.1520(a)(4)(i)–(v). Through step four, the burden of proof rests upon the
claimant to show she is disabled. Id. At the last step, “the burden shifts to the
Commissioner” to show that there is other gainful employment the claimant is
capable of performing despite her existing impairments. Id.
      Here, the ALJ resolved Botsay’s case at the fourth step, concluding that
Botsay’s impairments could cause some of the symptoms she alleged, but that
Botsay’s “statements concerning the intensity, persistence and limiting effects
of [those] symptoms are not entirely credible . . . .” Thus, the ALJ determined
Botsay was capable of performing past relevant sedentary work as a customer
service representative and data entry clerk.
      On appeal, Botsay argues that her case “hinge[s]” on the assessment of
her dominant right upper extremity limitations because her past jobs involved
typing and other computer and office tasks. At the administrative hearing, a
vocational expert agreed with the following hypothetical posed by the ALJ: if
Botsay could “frequently perform overhead reaching with the dominant right
upper extremity and . . . frequently handle, finger, and feel with” the same,
Botsay could continue working as a customer service representative or data
entry clerk. (emphasis added). If Botsay could only “occasional[ly]” engage in
those activities, though, the expert agreed that Botsay would not be able to
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engage in past relevant work. (emphasis added). Botsay contends the ALJ’s
decision is not supported by substantial evidence because the ALJ
mischaracterized objective medical evidence showing the severity of her upper
extremity limitations and incorrectly found Botsay’s testimony about the
intensity and effects of her symptoms not credible.
      Botsay specifically points to two medical evaluations. First, she asserts
that a February 2014 MRI revealed chronic tendinitis of the supraspinatus, a
small muscle in the upper back that affects the shoulder blade; a tear in her
coracoclavicular ligament, which also affects the shoulder; moderate chronic
degenerative changes in her acromioclavicular joint, which is at the top of the
shoulder; and subacromial bursitis, or a condition caused by inflammation of
one of the tendons in her rotator cuff. Thus, Botsay argues, the ALJ erred in
finding that the MRI showed “no tendonitis” and in characterizing her
diagnosis as a “mere[] . . . sprain.”
      Second, Botsay claims that the ALJ’s assessment that a July 2013 exam
was “within normal limits” was “clearly wrong.” Botsay emphasizes that the
doctor noted positive full can, Whipple, and Hawkins tests, indicating pain or
weakness in her shoulder. The exam also revealed crepitus, or cracking when
moving the joint, in the thumb and bilateral thumb arthritis. Botsay argues
these assessments are corroborated by past positive tests used to diagnose
carpal tunnel syndrome or nerve issues in the hands.
      Botsay is correct that the ALJ misread the February 2014 MRI.
Although, as the magistrate judge noted, the copy of the MRI results in the
record is very unclear, the notation is of “rc tendonitis” and not “no tendonitis.”
We have held, though, that a mistake in an ALJ’s decision does not
automatically render the entire decision unsupported by substantial evidence.
See Qualls v. Astrue, 339 F. App’x 461, 464 (5th Cir. 2009) (analyzing the effect
of an ALJ’s mischaracterization of an annular tear in the ALJ’s denial of
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disability benefits). For that outcome, a claimant must “show that the ALJ’s
disability determination would have been different if the ALJ had not” made
the mistake. Id. We do not find Botsay successful in that regard.
      As an initial matter, the Government is correct that, despite the
mistaken reading of the MRI, the ALJ acknowledged that other previous tests
showed Botsay has tendonitis and other shoulder problems.           The ALJ’s
discussion of Botsay’s “sprain,” moreover, was consistent with Botsay’s medical
records. Dr. Mae Ewing Young, who examined Botsay in March 2014 after the
MRI, diagnosed Botsay with a “[r]otator cuff . . . sprain.” The ALJ categorized
both Botsay’s sprain, tendonitis, and carpal tunnel diagnoses as “severe.”
      Furthermore, as to the July 2013 exam, Dr. Edward Lee Smith noted
that Botsay had “[f]ull abduction and flexion with” average range of motion in
Botsay’s right shoulder, as well as “[g]ood strength with internal and external
rotation.”   Therefore, while the July 2013 exam revealed Botsay was
experiencing some shoulder pain and crepitus and arthritis in her thumbs, it
also showed that some of Botsay’s diagnoses were within a normal range.
      Other previous examinations corroborate Dr. Smith’s report.            For
example, in a consultative exam in October 2012, Dr. Miljana Mandich
provided that Botsay “has full range of motion of all joints including both
shoulder[s] and both knees[,]” and “normal gripping, grasping and dexterity
bilaterally.” Notes from a January 2013 exam with Dr. Sohale Sadeghpour
reflect a similar assessment, and that Botsay wanted to continue “conservative
treatment for” her hand pain. Other medical records indicate that, at least as
of March 2014, Botsay had never received physical therapy or shots for her
shoulder pain. At the administrative hearing, Botsay reported that she had
never received any treatment for her hand pain.
      Aside from misreading the MRI, the ALJ fairly summarized the
available medical evidence. More importantly, the ALJ reviewed and weighed
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that evidence to discern the extent of Botsay’s impairments and symptoms and
their impact on her capacity for work. “Under the regulations and our case
law, the determination of residual functional capacity is the sole responsibility
of the ALJ.” Taylor v. Astrue, 706 F.3d 600, 602–03 (5th Cir. 2012).
      Botsay next asserts that, in light of the objective medical evidence, the
ALJ “grossly mischaracterize[d]” her testimony and function report in “giving
the mistaken impression that she is fully and independently functional with
respect to” her daily activities. Specifically, Botsay points to her allegations
that pain in her arm and hands makes it impossible for her to cook large meals,
do laundry, hold a hose, or operate her computer for longer than 15 minutes.
Botsay also contends the ALJ erred in failing to consider her lengthy prior
work history in his credibility determination.
      Our review of the record shows that the ALJ acknowledged most of the
limitations Botsay emphasizes in her brief, and acknowledged that Botsay
received assistance with some household chores from her sister. The ALJ also
properly took into account, though, Botsay’s admissions that she lives alone,
drives, executes some chores, waters small plants, visits with neighbors, and
goes out to lunch. We have held that activities such as these can negatively
impact credibility when the claimant’s contention is that her disabilities are so
severe so as to eliminate the possibility of even sedentary work. See Anthony
v. Sullivan, 954 F.2d 289, 295–96 (5th Cir. 1992). As to Botsay’s employment,
the ALJ noted that Botsay “ha[d] a lengthy history of clerical work . . . .”
Regardless, as the magistrate judge pointed out, the ALJ’s credibility
determination seemingly had nothing to do with Botsay’s work history; it
related to Botsay’s testimony about her alleged pain in light of her daily
activities and the objective medical evidence.
       In sum, the ALJ found that Botsay’s various medical examinations
revealed some discomfort in Botsay’s shoulder and hands. Those examinations
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also demonstrate, though, that Botsay could engage in nearly a full range of
motion without significant tenderness, had normal grip and dexterity, had
received no physical therapy or shots for her shoulder pain, and had received
no treatment for her hand pain. Despite some limitations, moreover, the record
demonstrates that Botsay admitted that she is able to engage in a wide variety
of daily activities.    “At a minimum, objective medical evidence must
demonstrate the existence of a condition that could reasonably be expected to
produce the level of pain or other symptoms alleged.” Id. at 296. The ALJ’s
finding that Botsay is capable of working as a customer service representative
or data entry clerk, or engaging in other similar sedentary work with some
limitations, is supported by substantial evidence.
      AFFIRMED.




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