United States Court of Appeals,

Fifth Circuit.

No. 95-50058

Summary Calendar.

Don E. LEGGETT, Plaintiff-Appellant,

v.

Shirley E. CHATER, Commissioner of the Social Security Administration, Defendant-Appellee.

Oct. 30, 1995.

Appeal from the United States District Court for the Western District of Texas.

Before WISDOM, DAVIS and STEWART, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiff/appellant asks this Court to review the decision

of the Commissioner of Social Security (Commissioner) denying his

application for disability benefits.1 Specifically, the plaintiff

alleges that the Commissioner's decision is erroneous because it is

not supported by substantial evidence and does not properly weigh

the opinion of the plaintiff's treating physicians. Additionally,

he requests that this Court remand his case to the Commissioner to

consider new evidence of his mental disability. We, however, agree

with the findings of the earlier proceedings and, accordingly, we

AFFIRM.

I.

1 Pursuant to the Social Security Independence and Program Improvements Act of 1994,

Stat. 1464 (codified in scattered sections of 42 U.S.C.), the Commissioner of Social Security assumed the role previously held by the Secretary of Health and Human Services in such proceedings.

1 The claimant, Don Leggett, filed an application for Social

Security benefits on August 30, 1991, for alleged disabilities

stemming from a July 2, 1991, heart attack. The Social Security

Administration timely denied Leggett's application both initially

and on reconsideration. Leggett then requested a hearing before an

Administrative Law Judge (ALJ), who also denied his disability

application. The Appeals Council declined Leggett's request for

review, making the ALJ's decision the final decision of the

Commissioner. Leggett next sought review in federal district

court. The federal magistrate, to whom the case was assigned,

denied relief to Leggett, thereby generating one basis for this

appeal.

After the ALJ's decision, Leggett refiled for disability

benefits, this time basing his application on alleged mental

impairments. Unlike his former application, the Commissioner

granted his new application for disability benefits. This event

serves as another basis for Leggett's appeal.

II.

Leggett, born May 31, 1939, has a high school education. He

worked for a chemical company from 1962 to 1985, a restaurant

equipment company from 1986 to 1989, and a food vending machine

company for the last part of 1989. All of these positions required

Leggett regularly to lift items weighing at least 25 pounds. At

the time of Leggett's heart attack, which is described below, he

was working as a cashier in a convenience store. This position

required Leggett to wait on customers, complete a daily report, and

2 stock the shelves. To perform the stocking duties, Leggett carried

containers in excess of ten pounds.

On July 2, 1991, while moving some cartons at the convenience

store, Leggett suffered an acute myocardial infarction (heart

attack). He entered a hospital, which performed a cardiac

catheterization on him. This test revealed an 80 percent stenosis

(narrowing) in one branch of a bifurcated diagonal vessel and a 50

to 60 percent occlusion (blockage) in the right coronary. Chest

X-rays suggested chronic obstructive pulmonary disease (COPD) and

diffuse interstitial fibrosis (hardening of the lung tissues).

After seven days, Leggett was discharged from the hospital, placed

on medication, ordered to stop smoking, and allowed to participate

in non-strenuous physical activities.

Experiencing chest discomfort, Leggett returned to the

hospital on July 19, 1991. Dr. Salmon took X-rays of Leggett,

which revealed a mild cardiomegaly (enlargement of the heart) with

mild to moderate vascular congestive change. An echocardiogram

taken at this time showed that Leggett's heart is normal, except

for posterior and inferior hypokinesis (lack of active muscular

contraction) and mild aortic regurgitation (blood flowing backwards

into the heart). Dr. Salmon adjusted Leggett's medications and

released him.

Leggett took a treadmill stress test on August 21, 1991. The

test revealed areas of reversible ischemia (lack of blood supply)

in the anterior and lateral wall of the left ventricle and Leggett

complained of some pain in his left shoulder. Nevertheless, Dr.

3 Williams found Leggett to have "good exercise tolerance".

Following the test, Dr. Williams again adjusted Leggett's

medications.

In an attempt to alleviate Leggett's persistent shoulder pain,

on September 6, 1991, Dr. Williams performed balloon coronary

angioplasty on Leggett to try to open a vessel that had an 80

percent stenosis. The procedure, however, was not successful in

restoring the blood flow. Dr. Williams then instructed Leggett

that he would have to learn to live with some of the pain and that

he was not to restrict physical activity, even permitting Leggett

to return to work the following day.

During a November 18, 1991, office visit, Dr. Williams noted

that Leggett had several instances of heart racing and that Leggett

was anxious about his condition. Dr. Williams concluded, however,

that Leggett's "symptoms [are] disproportionate to the objective

degree of coronary disease".

Leggett complained to Dr. Williams of headaches, depression,

and anxiety during a March 11, 1992, office visit. Leggett also

said that he was experiencing pain when he walked and some pain in

his left arm. Dr. Williams determined that the arm pain was not

cardiac related. Leggett then complained to Dr. Williams of the

same problems on April 6, 1992. A physical examination revealed

that Leggett's symptoms were normal, but at this point, Dr.

Williams characterized his symptoms as "basically chronic,

refractory, and debilitating".

Dr. Williams examined Leggett again on September 8, 1992, and

4 on March 29, 1993. On both occasions, Leggett repeated his earlier

complaints. Additionally, during the March examination, Leggett

complained that his ankles swell when he walks, but Dr. Williams

found no swelling during the examination.

Finally, a pulmonary function study conducted on June 28,

1993, revealed moderate signs of shortness of breath, the severity

of which was not disabling on its own.

III.

In addition to the above facts, the ALJ also relied on

testimony from a medical expert, a vocational expert, and Leggett

himself. After reviewing Leggett's medical history, the medical

expert concluded that Leggett has coronary artery disease. He

found no evidence, however, to link Leggett's headaches to this

disease. The medical expert further noted that Leggett's alleged

COPD could aggravate the coronary artery disease, but that more

tests were needed. In closing, the medical expert stated that

Leggett is capable of performing sedentary work in an environment

devoid of dust and extreme temperatures and that he should be

capable of ordinary physical activities.

Furthering the testimony of the medical expert, the vocational

expert testified that Leggett is not capable of performing any of

his past jobs as they were actually performed because those

positions required physical exertion in excess of a sedentary

level. The vocational expert added, however, that generally in the

national economy, cashier positions range from medium-level work to

sedentary.

5 With respect to his post-heart attack activities and

condition, Leggett testified that he takes care of his three

daughters, aged 9, 11, and 13. In a typical day, he stated that he

prepares their breakfast, gets them ready for school, and cleans

the house. After these chores, he said that he rests for an hour.

In the afternoon, Leggett again cares for his daughters, but this

time he does not rest. Leggett also stated that he is able to cut

the grass in small increments and to walk six blocks at a time

before having to rest. Finally, Leggett complained of swelling in

his legs, ankles, and hands if he sits or stands too long;

headaches; and difficulty breathing.

IV.

To determine whether a claimant qualifies as "disabled" under

(d)(1)(A) (West Supp. 1995), the Commissioner uses

a sequential five-part inquiry.2 The burden of proof lies with the

claimant to prove disability under the first four parts of the

inquiry.3 This inquiry terminates if the Commissioner finds at any

step that the claimant is or is not disabled.4 The Commissioner's

2 The five-step analysis requires the Commission to consider: 1) whether the claimant is presently engaging in substantial gainful activity, 2) whether the claimant has a severe impairment, 3) whether the impairment is listed, or equivalent to an impairment listed in appendix I of the regulation, 4) whether the impairment prevents the claimant from doing past relevant work, and 5) whether the impairment prevents the claimant from performing any other substantial gainful activity.

(1995); Greenspan v. Shalala,

(5th Cir. 1994), cert. denied, --- U.S. ----,

,

(1995). 3 Greenspan,

. 4

6 decision is granted great deference5 and will not be disturbed

unless the reviewing court cannot find substantial evidence in the

record to support the Commissioner's decision or finds that the

Commissioner made an error of law.6

A review of the record reveals that the Commissioner's

determination that Leggett is not disabled, as rendered by the ALJ,

is supported by substantial evidence. "Substantial evidence is

that which is relevant and sufficient for a reasonable mind to

accept as adequate to support a conclusion; it must be more than

a scintilla, but it need not be a preponderance."7 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.8 Here, the Commissioner found

that Leggett was not disabled under Step IV of the test, which

directs a finding that the claimant is not disabled if the

claimant's impairments do not "prevent [the claimant] from doing

past relevant work".9 Contesting this finding, Leggett points to

the testimony of the vocational expert, who stated that none of

Leggett's past jobs fall within the category of sedentary jobs;

5

(g) (West Supp. 1995); see also Paul v. Shalala,

(5th Cir. 1994). 6 Fraga v. Bowen,

(5th Cir. 1987). 7 Anthony v. Sullivan,

(5th Cir. 1992); see also Paul,

. 8 Fraga,

; see also Greenspan,

. 9

(e) (1995).

7 thus, Leggett argues that he cannot return to any of his past

relevant work.

The mere inability of a claimant to perform certain

"requirements of his past job does not mean that he is unable to

perform "past relevant work' as that phrase is used in the

regulations";10 rather, the Commissioner may also consider the

description of the claimant's past work as such work is generally

performed in the national economy.11 The record contains sufficient

evidence to support the Commissioner's finding that Leggett is

10 Jones v. Bowen,

, 527 n. 2 (5th Cir. 1987) (per curiam). 11 Villa v. Sullivan,

(5th Cir. 1990). Notably, this determination is distinguishable from the inquiry required when the Commissioner rules that the claimant is not disabled under Step V. If the claimant proves his disability under the first four prongs of the test, then the burden switches to the Commissioner, who must establish that the claimant has "residual functional capacity", given the claimant's age, education, and past work experience, to perform other work available in the national economy.

(f); see Greenspan,

; Carrier v. Sullivan,

(5th Cir. 1991) (per curiam). Step V also requires the Commissioner to use the medical-vocational guidelines in making the disability determination. See 20 C.F.R. pt. 404, subpt. P, app. 2 (1995).

Step V does not apply to Leggett because it is only appropriate in situations when the Commissioner finds that although the claimant is not disabled, the claimant cannot return to any past relevant work. For instance, in Carrier, the Secretary of Health and Human Services denied disability benefits to the claimant, holding that although the claimant's impairments prevented him from returning to his past job as a roofer, a position involving heavy labor, the claimant was still capable of performing other unrelated jobs in the national economy that are classified as "light work'. Carrier,

; see also Moore v. Sullivan,

(5th Cir. 1990) (per curiam). In the instant case, however, Leggett is capable of being a cashier, even though he is limited in the type of cashier positions that he can take.

8 capable of performing his past relevant work as a cashier as that

position is generally performed in the national economy.

In support of the ALJ's decision, we look to the combined

testimony of the medical and vocational experts. After reviewing

Leggett's history, the medical expert stated that he did not

believe that Leggett "should be sitting in a chair doing nothing"

and that he "can do normal physical activity," concluding that

Leggett is capable of performing sedentary work. Leggett's medical

history bolsters this conclusion. Leggett's doctors at no time

restricted his physical activity; instead, they encouraged him to

return to work. To a certain extent, Leggett even appears to have

taken his doctors' advice. By his own testimony, Leggett was able

to care for his three daughters, perform household chores, cut the

grass in small increments, and even walk up to six blocks at a

time.12

The vocational expert testified that Leggett could no longer

carry out the specific duties of a convenience store cashier

because that particular type of cashier must lift cartons to

restock the shelves. The vocational expert added, however, that

Leggett can perform the duties of a cashier as generally found in

the national economy because such positions range from medium work

to sedentary. Typical cashier positions, especially in a food

service or restaurant setting, do not place physical demands on the

12 It is appropriate for the Court to consider the claimant's daily activities when deciding the claimant's disability status. Reyes v. Sullivan,

(5th Cir. 1990) (per curiam).

9 cashier and are basically sedentary in nature. The vocational

expert's testimony, then, provided the basis upon which the ALJ

could rely to determine that an appropriate cashier position exists

for Leggett.13 A combination of the testimony of both experts and

Leggett's medical records satisfy the substantial evidence

requirement.14

Leggett contends, however, that the ALJ did not consider the

claimant's ability to cope with stress as directed by Social

Security Ruling (SSR) 85-15. The Court must take into

consideration all of the claimant's impairments and consider their

cumulative effect on the claimant's ability to perform a job.15

Leggett's reliance on SSR 85-15 for this issue is misplaced.

First, the application of SSR 85-15 is limited to those cases in

which the Commissioner finds that the claimant is not disabled at

Step V; Leggett was found disabled at Step IV. Second, this

ruling applies only to situations in which the claimant suffers an

13 Leggett also argues that the ALJ's decision is erroneous because the record does not contain evidence of job availability. This analysis, however, is not required when a claimant, like Leggett, is found not to be disabled at Step IV as opposed to Step V. Compare

(b) (1995) with

(c) (1995). 14 The district court properly modified the specific finding of the ALJ on this point. The district court agreed with the ALJ that Leggett could be a cashier, but that there was only substantial evidence to support a finding that Leggett can be a cashier in a sedentary position, and not in a "light work" position as the ALJ held.

(g) (West Supp. 1995) ("The court shall have the power to enter ... a judgment affirming, modifying, or reversing the decision of the [Commissioner]".). 15 Scott v. Heckler,

(5th Cir. 1985).

10 alleged mental impairment that causes a severe adverse reaction to

even the mildest demands of work. The record contains no evidence

that Leggett suffers from such a condition, other than a few

isolated references to his anxiety and depression about his

condition. Attempting to advance his argument, Leggett points to

the vocational expert's statement that a cashier position will not

be totally free of stress and to the medical expert's references to

"stress"; however, when considered in the context in which his

statements were made, it is apparent that the medical expert was

referring to Leggett's physical abilities on the job, and not to

stress in a mental sense. The ALJ, then, properly considered all

of Leggett's impairments that were put forth.

V.

Leggett next challenges the ALJ's interpretation of the

medical evidence, arguing that the ALJ did not give the proper

weight to the opinions of Leggett's treating physicians.

Primarily, Leggett relies on Dr. Williams's April 6, 1992,

conclusion that Leggett's condition was "chronic, refractory, and

debilitating". While the opinions of a claimant's treating

physicians are "entitled to great weight",16 the ALJ can decrease

reliance on treating physician testimony for good cause.17 Good

cause for abandoning the treating physician rule includes

"disregarding statements [by the treating physician] that are brief

and conclusory, not supported by medically acceptable clinical

16 Paul,

. 17 Id.; see also Greenspan,

.

11 laboratory diagnostic techniques, or otherwise unsupported by

evidence".18

The April 6, 1992, statement is the only time that Leggett's

treating physicians characterized Leggett's condition in such a

manner. Until that point, Dr. Williams consistently found that

Leggett's symptoms were more severe than objective medical evidence

warranted. Furthermore, at no time did the treating physicians

order Leggett to restrict his physical activity, nor does the

record explain Dr. Williams's April 6, 1992, finding. When

considered in conjunction with the earlier opinions of the treating

physicians, the objective medical evidence, and Leggett's own

testimony regarding his physical abilities, this Court finds that

the ALJ had good cause to place little emphasis on that isolated,

conclusory statement.

VI.

Leggett also asserts that the ALJ's decision is erroneous

because it fails to consider his alleged mental impairments and

because the ALJ did not order psychological tests. The claimant

has the burden of proving his disability and the ALJ has a duty to

fully develop the facts, or else the decision is not supported by

substantial evidence.19 The ALJ's duty to investigate, though, does

not extend to possible disabilities that are not alleged by the

claimant or to those disabilities that are not clearly indicated on

18 Greenspan,

. 19 Pierre v. Sullivan,

(5th Cir. 1989) (per curiam).

12 the record.20 Because Leggett never raised the issue of mental

impairment until this appeal, Leggett cannot say that he put his

mental impairments before the ALJ.

Leggett also cannot rely on the record to prevail on this

issue. The record contains some references to Leggett's anxiety,

stress, and depression, but these comments were isolated and

Leggett was not treated for them.21 Leggett attempts to strengthen

his position by relying on

(b) (1995), but this

reliance is misplaced.

(b) states that the

ALJ:

will develop evidence regarding the possibility of a medically determinable mental impairment when we have information to suggest that such an impairment exists, and [the claimant] allege[s] ... symptoms but the medical signs and laboratory findings do not substantiate any physical impairment(s) capable of producing the pain or other symptoms.

As explained above and unlike Latham v. Shalala on which Leggett

also relies, the ALJ did not have evidence sufficient to suggest

that a mental impairment exists. In Latham, the claimant was

diagnosed as having mental problems and a somatoform disorder,

which is characterized by physical symptoms that cannot be

explained by objective medical evidence; the ALJ erred by not

considering whether the diagnosed disorders were responsible for

his physical symptoms.22 No comparable evidence exists in Leggett's

20

. 21 See Jones,

(holding that the ALJ did not err by not ordering psychological tests when the claimant was merely "emotionally upset" about his condition). 22 Latham v. Shalala,

(5th Cir. 1994).

13 case. Accordingly, the ALJ had no duty to develop the possibility

of Leggett having a mental disability.23

VII.

Finally, Leggett argues that the case should be remanded for

the ALJ to consider new evidence of his mental impairments to

determine whether the onset date of these impairments coincides

with the onset date of the alleged impairments in this suit. The

Commissioner granted Leggett's new application for disability,

which was filed after the commencement of these proceedings, on the

basis of mental disability. To reach this conclusion, the

Commissioner relied on the evaluations of two psychiatrists to whom

the Commissioner sent Leggett in late 1994. Leggett now argues

that this Court should remand his case to the ALJ to reconsider

Leggett's disability status in light of this new evidence.

"[I]n order to justify a remand, the evidence must be (1)

new, (2) material, and (3) good cause must be shown for the failure

to incorporate the evidence into the record in a prior

proceeding."24 In addition, the new evidence must also pertain to

the contested time period and not merely concern a subsequently

acquired disability or the deterioration of a condition that was

not previously disabling.25 It is clear, then, that the recent

origin of these psychiatric exams alone is not sufficient to

23 See Jones,

. 24 Bradley v. Bowen,

(5th Cir. 1987) (per curiam). 25

14 warrant a remand.26 Furthermore, the fact that the psychiatric

exams were not administered in the lower proceedings is also

insufficient to create good cause; rather, the absence of such

tests only raises the issue of whether the ALJ initially should

have ordered such an examination.27 As explained above, the ALJ was

not required to investigate Leggett's mental disabilities.

While the evidence of Leggett's mental disability is new and

material to his disability status, Leggett does not provide a

satisfactory explanation for its absence from the initial

proceedings. The evidence consists of a new examination taken far

outside of the period in which Leggett applied for or was denied

benefits.28 Leggett offers no evidence that his current mental

disability did not subsequently develop after his initial

application or that it is not the result of the deterioration of a

condition that was not previously disabling.29 Leggett, then, fails

on his burden of providing good cause for the absence of this

evidence. We reject his request for a remand. The appropriate

action regarding these facts is the option that Leggett has already

chosen: to use this evidence as the basis for a new disability

application.30

26 Pierre,

. 27

28 Falco v. Shalala,

(5th Cir. 1994) (Wisdom, J.). 29 See Bradley,

. 30 Falco,

n. 20.

15 VIII.

The judgment of the district court is AFFIRMED.

16