     Case: 16-30871      Document: 00513826261         Page: 1    Date Filed: 01/09/2017




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

                                    No. 16-30871                                FILED
                                  Summary Calendar                        January 9, 2017
                                                                           Lyle W. Cayce
                                                                                Clerk
LEAH ROBEIN HECK,

              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. 2:15-CV-3483


Before KING, DENNIS, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff–Appellant Leah Heck appeals the denial of her application for
disability insurance benefits. Because Defendant–Appellee, the Commissioner
of Social Security, applied the proper legal standards in denying Heck’s




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 16-30871
application and substantial evidence supports the Commissioner’s decision, we
AFFIRM.
                      I. FACTS AND PROCEEDINGS
      Plaintiff–Appellant Leah Heck filed an application for disability
insurance benefits (DIB) under Title II of the Social Security Act on January
23, 2013. See 42 U.S.C. § 423. Her application alleged a disability onset date
of June 10, 2006, due to “bipolar 1mixed rapid cycling,” migraines, and manic
depression.    After Heck’s claim was denied initially and again upon
reconsideration, she requested a hearing before an administrative law judge
(ALJ). Heck and an impartial vocational expert both testified at the hearing.
After the hearing, the ALJ issued a decision concluding that Heck did not
qualify for DIB because she was not disabled during the relevant time period.
The Appeals Council denied Heck’s request for review, at which point the ALJ’s
decision became a final decision of the Commissioner of Social Security.
Having exhausted her administrative remedies, Heck filed suit in federal
district court for review of the Commissioner’s decision. The district court
accepted the recommendation of the magistrate judge to affirm the
Commissioner’s decision and dismissed the case with prejudice. Heck timely
appealed.
                        II. STANDARD OF REVIEW
      Our review of a final decision of the Commissioner on a social security
disability claim “is exceedingly deferential,” Taylor v. Astrue, 706 F.3d 600, 602
(5th Cir. 2012), and “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,” Copeland v. Colvin, 771
F.3d 920, 923 (5th Cir. 2014) (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th
Cir. 2005)). “Substantial evidence is ‘such relevant evidence as a reasonable
mind might accept to support a conclusion’ and constitutes ‘more than a mere
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                                      No. 16-30871
scintilla’ but ‘less than a preponderance’ of evidence.” Hardman v. Colvin, 820
F.3d 142, 147 (5th Cir. 2016) (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th
Cir. 2000)). “Any findings of fact by the Commissioner which are supported by
substantial evidence are conclusive.”             Taylor, 706 F.3d at 602 (citing
Richardson v. Perales, 402 U.S. 389, 390 (1971)). “In applying this standard,
we ‘may not reweigh the evidence or substitute [our] judgment for the
Commissioner’s.’” Copeland, 771 F.3d at 923 (alteration in original) (quoting
Perez, 415 F.3d at 461).         “We may affirm only on the grounds that the
Commissioner stated for h[er] decision.” Id.
                                  III. DISCUSSION
       In order to be eligible for DIB, a claimant must prove she has a medically
determinable physical or mental impairment, or combination thereof, lasting
at least 12 months, which prevents her from engaging in substantial gainful
activity. 1 42 U.S.C. § 423(d)(l)(A). The Social Security Administration uses a
five-step analysis to determine whether a claimant is disabled:
       (1) a claimant who is working, engaging in a substantial gainful
       activity, will not be found to be disabled no matter what the
       medical findings are; (2) a claimant will not be found to be disabled
       unless he has a “severe impairment”; (3) a claimant whose
       impairment meets or is equivalent to an impairment listed in
       Appendix 1 of the regulations will be considered disabled without
       the need to consider vocational factors; (4) a claimant who is
       capable of performing work that he has done in the past must be
       found “not disabled”; and (5) if the claimant is unable to perform
       his previous work as a result of his impairment, then factors such
       as his age, education, past work experience, and residual
       functional capacity must be considered to determine whether he
       can do other work.




       1“Substantial gainful activity” is defined as work involving “significant physical or
mental activities” that is done “for pay or profit.” 20 C.F.R. § 404.1572.
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Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4).
      The claimant bears the burden of proof on steps one through four at
which point the burden shifts to the Commissioner on step five to show
that the     claimant can perform other substantial work in the national
economy, which the claimant must then rebut. Perez, 415 F.3d at 461. “[A]
finding at any step that a claimant is or is not disabled ends the analysis.”
Graves v. Colvin, 837 F.3d 589, 592 (5th Cir. 2016) (citing Bowling, 36 F.3d at
435). Here, the ALJ completed all five steps of the analysis before concluding
that Heck was not disabled.
      On appeal Heck challenges six aspects of the ALJ’s decision. We address
each challenge in turn.
A. Failure to consider Heck’s Migraines
      First, Heck argues that the ALJ failed to consider her migraine condition
in assessing whether she was disabled. However, as the Commissioner notes,
Heck does not identify any additional work-related limitations resulting from
her migraines that the ALJ should have considered in assessing Heck’s claim.
Without such additional limitations, any failure by the ALJ to specifically
consider migraines as an additional impairment could not have prejudiced
Heck. Accordingly, we conclude that this alleged omission by the ALJ, even if
found to be in error, “is irrelevant to the disposition of [Heck’s] case” and thus
cannot provide a basis for reversal. Id. (quoting Chaparro, 815 F.2d at 1011);
see also Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996) (“We will not reverse
the decision of an ALJ for lack of substantial evidence where the claimant
makes no showing that [s]he was prejudiced in any way by the deficienc[y]
[s]he alleges.”).




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B. Finding that bipolar disorder did not meet regulation criteria
      Second, Heck claims that the ALJ erred at step three of the analysis by
finding that Heck’s bipolar disorder did not meet the medical criteria contained
in the regulation. At step three the ALJ determines whether the claimant has
an impairment that meets or equals those listed in Appendix 1 of the
regulations. Appendix 1 provides, in relevant part, that a finding of certain
affective disorders constitutes a disability. 2 20 C.F.R. pt. 404, subpt. P, app. 1,
§ 12.04. The ALJ found that Heck’s bipolar disorder did not meet the listed
criteria and thus did not constitute a disability. 3 This finding was not in error.
The burden was on Heck to show that her bipolar disorder met the criteria
provided in the Appendix medical listing. See Sullivan v. Zebly, 493 U.S. 521,
530 (1990); Perez, 415 F.3d at 461. We have previously recognized that “[t]he


      2  The regulation provides that in order to meet the requirements of an affective
disorder, the claimant must have, inter alia:
       A. . . . Bipolar syndrome . . .; AND
       B. Resulting in at least two of the following:
                1. Marked restriction of activities of daily living; or
                2. Marked difficulties in maintaining social functioning; or
                3. Marked difficulties in maintaining concentration, persistence, or
       pace; or
                4. Repeated episodes of decompensation, each of extended duration;
                OR
       C. Medically documented history of a chronic affective disorder of at least 2
       years’ duration that has caused more than a minimal limitation of ability to do
       basic work activities, with symptoms or signs currently attenuated by
       medication or psychosocial support, and one of the following symptoms:
                1. Repeated episodes of decompensation, each of extended duration; or
                2. A residual disease process that has resulted in such marginal
                adjustment that even a minimal increase in mental demands or change
                in the environment would be predicted to cause the individual to
                decompensate; or
                3. Current history of 1or more years’ inability to function outside a
                highly supportive living arrangement, with an indication of continued
                need for such an arrangement.
20 C.F.R. pt. 404, subpt. P, app. 1§ 12.04.

      3 The ALJ appeared to assume that Heck met paragraph A and then found that she
did not meet either paragraph B or C.
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criteria in the medial listing are ‘demanding and stringent,’” Falco v. Shalala,
27 F.3d 160, 162 (5th Cir. 1994), and “[a]n impairment that manifests only
some of those criteria, no matter how severely, does not qualify” as a disability,
Sullivan, 493 U.S. at 530.      Yet on appeal Heck fails to explain how her
symptoms align with the criteria of the Appendix medical listing. She cites
testimony about her medical history at length, but does not show how this
medical evidence demonstrates that she meets each of the required criteria
under the Appendix medical listing. Accordingly, she has not met her burden
to demonstrate that her disability meets the criteria under the Appendix
medical listing, and the ALJ did not err in finding that her bipolar disorder did
not meet the criteria.
C. Opinion of Dr. Henderson
      Third, Heck argues that the ALJ erred by failing to give proper weight
to the opinions of her treating physician, Dr. Henderson, that were contained
in responses to a mental impairment questionnaire. The ALJ explained that
she considered Dr. Henderson’s responses to the questionnaire but did not
accord them controlling weight because they were “completely inconsistent
with [Dr. Henderson’s] own internal records,” were “made less than one-year
post [Heck’s back] surgery,” and “did not contain a function-by-function
analysis.” We find no error in this determination. Although the opinion of a
claimant’s treating physician generally deserves “considerable weight in
determining disability,” this is not so when the physician’s testimony is “brief
and conclusory . . . or otherwise unsupported by the evidence.” Perez, 415 F.3d
at 465-66 (quoting Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994)). We
have previously characterized responses to a “‘questionnaire’ format” as
“typi[cal] ‘brief or conclusory’ testimony” and declined to accord these
responses controlling weight when they lack “explanatory notes” or
“supporting objective tests and examinations.” Foster v. Astrue, 410 F. App’x
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831, 833 (5th Cir. 2011).     Similarly here, Dr. Henderson’s questionnaire
responses were not supported by any accompanying diagnostic tests or specific
clinical examinations.    Further, we have recognized that an ALJ “is not
required to give controlling weight to a treating physician opinion when . . .
‘there is competing first-hand medical evidence.’” Walker v. Barnhart, 158 F.
App’x 534, 535 (5th Cir. 2005) (quoting Newton, 209 F.3d at 458). Here, the
ALJ found that Dr. Henderson’s questionnaire responses were inconsistent
with even his own medical records and that finding is supported by substantial
evidence. Nor did the ALJ err in failing to consider the factors identified in the
regulation before declining to give controlling weight to Dr. Henderson’s
responses, see 20 C.F.R. § 404.1527(c), because such consideration is required
only when there is no other reliable evidence from treating physicians that
contradicts the responses, see Newton, 209 F.3d at 453. In declining to give
controlling weight to Dr. Henderson’s questionnaire responses, the ALJ
performed her role of weighing conflicting evidence and resolving the conflict,
and we perform our limited role of ensuring that this decision is supported by
substantial evidence, which it is. See Greenspan, 38 F.3d at 237 (“Substantial
evidence supports the ALJ’s decision to disregard the physicians’ conclusions.
That basis is enough to support our review.”).
D. Credibility determination
      Fourth, Heck claims that the ALJ erred in finding that some of her
testimony was not credible. The ALJ found that Heck’s “statements concerning
the intensity, persistence and limiting effects of [her] symptoms [we]re not
entirely credible.” We have recognized that “[i]t is within the ALJ’s discretion
to determine the disabling nature of a claimant’s pain,” and we accord this
determination “considerable deference.” Chambliss v. Massanari, 269 F.3d
520, 522 (5th Cir. 2001). And this court is “not well positioned to second-guess
[the ALJ’s] credibility determination so long as the ALJ’s ultimate finding [that
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Heck is not disabled] was supported by substantial evidence.” Hardman, 820
F.3d at 148 (citing Sun v. Colvin, 793 F.3d 502, 508 (5th Cir. 2015)). Because
we conclude that substantial evidence supports the ALJ’s ultimate finding of
no disability, we defer to the ALJ’s credibility assessment and do not address
this argument any further.
E. Failure to consider whether Heck could maintain employment
      Fifth, Heck argues that the ALJ erred by considering only whether her
symptoms allowed her to obtain employment rather than her ability to both
obtain and maintain employment.     Citing this court’s decisions in Watson v.
Barnhart, 288 F.3d 212 (5th Cir. 2002), and Frank v. Barnhart, 326 F.3d 618
(5th Cir. 2003), Heck argues that because her symptoms waxed and waned, the
ALJ was required to make a specific finding that she was able to maintain, as
well as obtain, employment. Heck relies on two pieces of evidence: a statement
by Dr. Henderson that her relapses were “frequent and unpredictable” and a
statement by her orthopedic surgeon that Heck “show[ed] a rather classical
waxing and waning of low back symptomology variably discussed as good days
and bad days.” In Watson this court held that the ALJ erred in failing to
consider the claimant’s ability to maintain employment in making the
disability determination because the claimant’s “degenerative disc disease
prevented him from maintaining employment . . . because every number of
weeks he lost movement in his legs.” 288 F.3d at 218. However, in Frank,
decided the year after Watson, “[t]his court made clear . . . that ‘nothing in
Watson suggests that the ALJ must make a specific finding regarding the
claimant’s ability to maintain employment in every case.’” Perez, 415 F.3d at
465 (quoting Frank, 326 F.3d at 619). The court concluded that no such finding
was required in Frank, explaining that to trigger Watson’s requirement a
claimant must allege, for example, that her condition prevents her from
maintaining employment “because every number of weeks she lost movement
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in her legs.” 326 F.3d at 619. This is because “[i]t is axiomatic that the pain
from any type of ailment will vary in intensity,” so a claimant must allege more
than mere pain variation to trigger Watson’s requirement for a finding on
ability to maintain employment. Perez, 415 F.3d at 465. Evidence that a
claimant “has ‘good days and bad days,’” even if credible, “simply do[es] not
rise to the level of impairment anticipated by the Court in Frank.”           Id.
(alteration in original).   The evidence upon which Heck relies does not
demonstrate that she can only work in short spurts or is beset by intensified
specific symptoms at regular intervals. Therefore, Heck fails to show that her
symptoms rise to the level of impairment necessitating a separate finding of
ability to maintain employment. The ALJ therefore did not err in failing to
make such a finding.
F. Medication side effects
      Sixth and finally, Heck argues that the ALJ erred in making the
disability determination by failing to consider the drowsiness that is a side
effect of her medication. In support of this argument, Heck relies exclusively
on her own testimony, save for a single reference to a questionnaire response
by Dr. Henderson where he stated, in response to a question about side effects
that “may have implications for working,” that drowsiness was a side effect of
her medication. In determining whether a claimant has a disability, the ALJ
is required to consider all of the evidence presented, including “side effects of
any medications” the claimant takes. 20 C.F.R. § 404.1529(c)(3)(iv). But we
note that both of the sources of evidence upon which Heck relies for this
argument were given less weight by the ALJ. Further undercutting these two
sources of evidence, Heck’s medical records contain numerous instances where
she either denied experiencing any side effects from her medication or failed to
report drowsiness as a side effect to the doctors prescribing the medication. At
best, there is competing evidence regarding whether Heck suffered drowsiness
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as a side effect of her medication and we will not disturb the ALJ’s decision
regarding how best to resolve this conflict.
                                IV. Conclusion
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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