     Case: 15-30893    Document: 00513485007    Page: 1   Date Filed: 04/28/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT


                               No. 15-30893                      United States Court of Appeals
                             Summary Calendar                             Fifth Circuit

                                                                        FILED
                                                                    April 28, 2016
ARTHUR WHITEHEAD,                                                  Lyle W. Cayce
                                                                        Clerk
                                         Plaintiff - Appellant
v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

                                         Defendant - Appellee


                 Appeal from the United States District Court
                     for the Middle District of Louisiana


Before REAVLEY, SMITH, and HAYNES, Circuit Judges.
PER CURIAM:
      Plaintiff Arthur Whitehead appeals the judgment of the district court
affirming the Acting Social Security Commissioner’s denial of his application
for disability benefits. Because we conclude that the Commissioner’s decision
is lawful and supported by substantial evidence, we AFFIRM.
                                I. Background
      Whitehead began treatment with Dr. Jorge Isaza on August 20, 2010,
complaining chiefly of neck pain, after he slipped and hit his head while
employed as a heavy equipment operator several days prior. Ultimately,
Whitehead informed Dr. Isaza that he intended to apply for social security
disability benefits.
      On July 29, 2011, Whitehead received a Functional Capacity Evaluation
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(FCE), which showed that he was functioning at a light physical demand
capacity. The FCE concluded that Whitehead could perform static standing
for 2 to 4 hours in an 8-hour work day, and could occasionally perform
repetitive squatting, kneeling, crouching, stair and ladder climbing, forward
bent work, and overhead work. The FCE further stated that Whitehead could
carry 20 pounds occasionally and 10 pounds frequently, could frequently sit
and walk, and could do simple grasping, pushing, and pulling with both his left
and right hands. The evaluating physical therapist concluded that Whitehead
could return to work with the restrictions in the FCE. Dr. Isaza concurred in
this assessment in August, September, and November of 2011.
      Dr. Isaza continued to treat Whitehead in February, June, and
September of 2012, and in his treatment reports continued to agree with the
restrictions in the FCE. In a letter dated December of 2012, Dr. Isaza stated
that he had managed Whitehead’s symptoms conservatively with medications
and once again expressed his agreement with the FCE.
      On March 3, 2012, Dr. Herman Toliver performed a consultative
examination of Whitehead and found that Whitehead had normal bilateral grip
strength, decreased strength in the right arm, normal strength in the left arm,
and minor left arm atrophy. Dr. Toliver concluded that Whitehead had mild-
to-moderate limitations with pulling, pushing, and lifting heavy objects and
should lift no more than 5 to 10 pounds.
      On April 6, 2012, Dr. Jeffrey Nugent, a nonexamining state agency
medical expert, reviewed Whitehead’s physical residual functional capacity
(RFC) and opined that Whitehead had limitations regarding frequent
handling, fingering, and feeling in his right hand and a limitation of 9 pounds
for frequent lifting or carrying.
      Whitehead applied for disability insurance benefits on December 29,
2011, alleging that he was disabled beginning on August 15, 2010, due to
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                                    No. 15-30893
depression, anxiety, chronic pain, high blood pressure, vision problems, disc
replacement in his neck, artery blockage in his neck and heart, hearing
problems, knee problems, and sleep apnea. His claim was initially denied and
he filed a request for a hearing.
      On November 6, 2012, the Administrative Law Judge (“ALJ”) held an
administrative hearing and two months later, she issued her decision,
conducting the five-step evaluation process and finding that Whitehead was
not disabled. 20 C.F.R. § 404.1520(a)(4). At step one, the ALJ found that
Whitehead had not engaged in substantial gainful activity since his application
date. At step two, the ALJ found that Whitehead had the severe impairment
of cervical spine disease. At step three, the ALJ determined that Whitehead’s
impairments did not meet or medically equal the severity for presumptive
disability listed at 20 C.F.R. Pt. 404, Subpart P, App. 1 (Listings), including
Listing 1.04 for disorders of the spine. Before addressing step four, the ALJ
considered Whitehead’s RFC and found that he had the maximum RFC to
perform light work, except that he could not climb ladders, ropes, and scaffolds,
and should avoid overhead reaching with his right arm. The ALJ also found
that Whitehead could occasionally stoop, kneel, crouch, and crawl. In making
this finding, the ALJ considered Whitehead’s credibility, and determined that
his statements concerning the intensity, persistence, and limiting effects of his
symptoms were not entirely credible because the objective evidence could not
be fully reconciled with his statements. At step four, the ALJ found that
Whitehead could not perform his past relevant work as a heavy equipment
operator. At step five, the ALJ determined, based on a vocational expert’s
testimony, that there were jobs existing in significant numbers in the national
economy that Whitehead could perform, such as the occupations of food
preparation worker, housekeeping cleaner, and information clerk. Thus, the
ALJ found that Whitehead was not disabled.
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                                 No. 15-30893
      Whitehead sought review from the Appeals Council on October 30, 2013,
which was denied.        Whitehead requested review again and submitted
additional evidence consisting of three additional treatment records from Dr.
Isaza. The Appeals Council again denied his request for review. In its second
denial, the Appeals Council stated that it considered the additional evidence
Whitehead submitted, but concluded that the additional information did not
provide a basis for changing the ALJ’s decision. Thus, the ALJ’s decision
became the Commissioner’s final decision. See 20 C.F.R. § 404.981.
      Whitehead appealed the Commissioner’s final decision to the district
court, which affirmed the Commissioner’s decision and dismissed Whitehead’s
complaint. Whitehead now appeals the district court’s dismissal, contending
that: (1) the Appeals Council failed to adequately consider the additional
evidence Whitehead submitted after the ALJ’s decision; (2) the ALJ applied
the wrong standard in determining that Whitehead did not meet or medically
equal Listing 1.04(A); and (3) the ALJ’s RFC finding is not supported by
substantial evidence.
                     II. Jurisdiction and Standard of Review
      Whitehead sought judicial review of the Commissioner’s final
administrative decision under 42 U.S.C. § 405(g). The district court entered a
final judgment affirming the Commissioner’s decision and dismissing
Whitehead’s complaint, and Whitehead timely appealed. We have jurisdiction
to review Whitehead’s appeal under 28 U.S.C. § 1291.
      We review the 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). “A finding
of no substantial evidence is appropriate only if no credible evidentiary choices
or medical findings support the decision.” Boyd v. Apfel, 239 F.3d 698, 704 (5th
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Cir. 2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000)).
      A claimant attempting to establish entitlement to social security benefits
“has the burden of proving she has a medically determinable physical or
mental impairment lasting at least twelve months that prevents her from
engaging in substantial gainful activity.” Newton, 209 F.3d at 452 (citing 42
U.S.C. § 423(d)(1)(A)). The ALJ then uses a five-step sequential process to
evaluate the claimant’s entitlement to social security benefits by determining
whether: “(1) the claimant is not working in substantial gainful activity; (2) the
claimant has a severe impairment; (3) the claimant’s impairment meets or
equals a listed impairment in Appendix 1 of the Regulations; (4) the
impairment prevents the claimant from doing past relevant work; and (5) the
impairment prevents the claimant from doing any other work.” Id. at
453 (citing 20 C.F.R. § 404.1520). The claimant bears this burden of proof for
the first four steps and then the burden shifts to the Commissioner for the fifth
step. See id.
                                  III. Discussion
                         A. Consideration of New Evidence
      Whitehead first argues that the Appeals Council erred in failing to
adequately consider, evaluate, or discuss the new evidence Whitehead
submitted after the ALJ’s determination: namely, updated treatment records
from Dr. Isaza, which Whitehead contends cast doubt on the soundness of the
ALJ’s findings.
      When confronted with new and material evidence, the Appeals Council
“shall evaluate the entire record including the new and material evidence . . . .
It will then review the case if it finds that the administrative law judge’s action,
findings, or conclusion is contrary to the weight of the evidence currently of
record.” 20 C.F.R. § 404.970(b). However, the regulations do not require the
Appeals Council to discuss the newly submitted evidence, nor is the Appeals
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                                        No. 15-30893
Council required to give reasons for denying review. See Sun v. Colvin, 793
F.3d 502, 511 (5th Cir. 2015). Thus, it was not error for the Appeals Council
to omit a discussion of the additional treatment records submitted by
Whitehead. Id.
       Whitehead contends that his newly submitted evidence casts doubt on
the ALJ’s decision and thus should be addressed by a fact finder. He argues
that his case is similar to Sun, where we concluded that new records “create[d]
considerable uncertainty” regarding the ALJ’s findings that the plaintiff “was
able to ambulate effectively within a year of her injury’s onset[.]” Id. at 512.
We disagree. The additional medical records do not change Dr. Isaza’s stated
agreement with the restrictions in Whitehead’s FCE. Indeed, as contrasted
with the facts in Sun, the newly submitted medical records largely confirm the
evidence already contained in the record. Accordingly, we conclude that the
newly submitted evidence was not so significant as to require remand to the
ALJ for additional consideration. 1
                                   B. Step Three Standard
       Whitehead next contends that the ALJ applied the wrong standard in
determining that Whitehead did not meet or medically equal Listing 1.04(A). 2



       1  Whitehead also cites Epps v. Harris, 624 F.2d 1267 (5th Cir. 1980), to assert that the
Appeals Council was required to discuss the additional evidence, and that, in the absence of
any discussion, remand is required. Having already concluded that Whitehead’s newly
submitted evidence was not sufficiently significant to require remand under Sun v. Colvin,
793 F.3d 502, (5th Cir. 2015), we also reject Whitehead’s contention that, as in Epps, the
newly submitted evidence directly contradicted the ALJ’s rationale such that remand is
required. See Epps, 624 F.2d at 1273. Additionally, as we noted in Sun, Epps arose in a
different procedural context where the Appeals Council affirmed the decision of the ALJ and
thus has little bearing on the Appeals Council’s denial of a request for review. Sun, 793 F.3d
at 510–11 (citing Parks ex rel. D.P. v. Comm’r, Soc. Sec. Admin., 783 F.3d 847, 853 (11th Cir.
2015)).
        2 Listing 1.04(A) outlines the criteria for disorders of the spine and states as follows:

              Disorders of the spine (e.g., herniated nucleus pulposus, spinal
              arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
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At step three of the evaluation process, Whitehead has the burden of
establishing that his impairment meets or equals the criteria for presumptive
disability described in the listings. Muse v. Sullivan, 925 F.2d 785, 789 (5th
Cir. 1991). “For a claimant to show that his impairment matches a listing, it
must meet all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S.
521, 530 (1990).
       At step three, the ALJ concluded that “the medical evidence d[id] not
establish the requisite evidence of the nerve root compression, spinal
arachnoiditis or lumbar and cervical spinal stenosis as required under listing
1.04.” Whitehead argues that this conclusion was based upon application of
the wrong legal standard and that the facts do not support this conclusion.
       To the extent Whitehead argues that the ALJ applied an improper legal
standard by requiring EMG or MRI evidence of nerve root or spinal cord
compression, there is no evidence that the ALJ did in fact apply such a
standard. Rather, the ALJ simply stated that the medical evidence does not
establish the requisite evidence of nerve root compression. Thus, our inquiry
is whether the ALJ’s determination is supported by substantial evidence.
Newton, 209 F.3d at 452. We conclude that it is.
       First, at no point during his treatment of Whitehead did Dr. Isaza



              disease, facet arthritis, vertebral fracture), resulting in
              compromise of a nerve root (including the cauda equina) or the
              spinal cord. With:

              A. Evidence of nerve root compression characterized by neuro-
              anatomic distribution of pain, limitation of motion of the spine,
              motor loss (atrophy with associated muscle weakness or muscle
              weakness) accompanied by sensory or reflex loss and, if there is
              involvement of the lower back, positive straight-leg raising test
              (sitting and supine).
20 C.F.R. Pt. 404, Subpart P, App. 1, § 1.04(A).


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diagnose Whitehead with nerve root or spinal cord compression, nor is there
any other direct evidence of nerve root compression contained in the record.
See Zimmerman v. Astrue, 288 F. App’x 931, 937 (5th Cir. 2008) (affirming
Commissioner’s conclusion that plaintiff’s impairment did not meet or equal
Listing 1.04 where there was no direct indication of nerve root compression). 3
In fact, the only medical record that references “cord impingement” is the letter
of Dr. Maury Drummond, Whitehead’s primary care physician, which the ALJ
discounted as being inconsistent with the generally normal findings and
because Dr. Drummond sees Whitehead only when he is sick and did not treat
Whitehead for his cervical spine condition. Given the evidence from Dr. Isaza,
we cannot say that “no credible evidentiary choices or medical findings support
the [ALJ’s] decision.” Boyd, 239 F.3d at 704. Accordingly, we conclude that
substantial evidence supports the ALJ’s determination at step three. 4
                                        C. RFC Finding
       Finally, Whitehead argues that the ALJ’s RFC finding is not supported
by substantial evidence. In assessing Whitehead’s RFC, the ALJ found that
Whitehead was capable of performing light work with certain limitations.
Light work, as defined by the regulations, “involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects weighing up to 10



       3Although Zimmerman is not “controlling precedent,” it “may be [cited as] persuasive
authority.” Ballard v. Burton, 444 F.3d 391, 401 n.7 (5th Cir. 2006) (citing 5TH CIR. R. 47.5.4).
       4 In support of his contention that the ALJ erred at step three, Whitehead cites Audler
v. Astrue, 501 F.3d 446 (5th Cir. 2007), in which we reversed the ALJ’s determination, holding
that the plaintiff met her burden of demonstrating that she met the Listing requirements for
§ 1.04(A) where she submitted a diagnostic checklist from her treating physician indicating
that she had most of the symptoms of nerve root compression. Id. at 449. Audler is
distinguishable from the instant case: first, in Audler we held that the ALJ erred in failing
to state any reasons for her adverse determination at step three, and thus we did not give
deference to the ALJ’s determination; and second, we found that no medical evidence was
introduced to contradict the plaintiff’s contention that she met the requirements for § 1.04(A).
Id. at 448–49. Accordingly, Audler does not control our decision here.
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pounds.” 20 C.F.R. § 404.1567(b). Further, a job constitutes light work when
“it requires a good deal of walking or standing, or when it involves sitting most
of the time with some pushing and pulling of arm or leg controls.” Id.
         Here, the restrictions outlined in Whitehead’s FCE are consistent with
the definition of light work and thus support the ALJ’s RFC determination.
The ALJ appropriately gave great weight to Dr. Isaza’s opinion as Whitehead’s
treating physician. See Perez v. Barnhart, 415 F.3d 457, 465–66 (5th Cir.
2005); Newton, 209 F.3d at 455 (“The opinion of the treating physician who is
familiar with the claimant’s impairments, treatments and responses, should
be accorded great weight in determining disability.”). The ALJ noted that Dr.
Isaza had treated Whitehead every two to three months since August 2010,
and thus had sufficient medical information to form an opinion as to
Whitehead’s physical ability.      Additionally, the ALJ determined that “Dr.
Isaza’s opinion is not contradicted by any persuasive medical opinion in
record.” The ALJ acknowledged that Dr. Toliver’s, Dr. Drummond’s, and Dr.
Nugent’s assessments of Whitehead’s abilities contradicted Dr. Isaza’s to some
degree. However, the ALJ assigned little weight to those opinions because they
contained internal inconsistencies, were contradicted by other medical
evidence, and because these physicians lacked the ongoing treatment
relationship Dr. Isaza had with Whitehead. Thus, the ALJ appropriately
accorded more weight to the FCE and to the conclusions expressed by Dr.
Isaza.
         Bearing in mind that our role is not to reweigh the evidence or substitute
our judgment for the ALJ’s, we conclude that substantial evidence supports the
ALJ’s determination regarding Whitehead’s RFC as well as the ALJ’s ultimate
determination that Whitehead was not disabled. AFFIRMED.




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