IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT _______________

m 01-51194 _______________

JUAN G. VILLARREAL,

Plaintiff-Appellant,

VERSUS

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

_________________________

Appeal from the United States District Court for the Western District of Texas (SA-99-CV-1239) _________________________ October 2, 2002

Before HIGGINBOTHAM, SMITH, and Juan Villarreal, an applicant for Social Se- CLEMENT, Circuit Judges. curity disability benefits (“SSI”), appeals a de- termination by the Commissioner of Social JERRY E. SMITH, Circuit Judge:* Security that Villarreal was not disabled within

* * Pursuant to 5TH CIR. R. 47.5, the court has (...continued) determined that this opinion should not be pub- lished and is not precedent except under the limited (continued...) circumstances set forth in 5TH CIR. R. 47.5.4. the meaning of the Social Security Act. Our Villarreal had lost about thirty-five pounds and review of the record persuades us that that spondylolysis was apparent from an x-ray. Villarreal’s claims have been tested by the On June 2, 1994, Meadows found that proper legal standards and that the Villarreal had improved and that he was fit for Commissioner’s decision is based on work in the light to medium range with a thir- substantial evidence. We therefore affirm. ty-pound weight restriction. He gave Villarre- al a prescription for anti-inflammatories and I. muscle relaxants. On October 5, 1994, Villarreal was born July 3, 1960, and was Meadows stated that Villarreal still exhibited thirty-four years old when he applied for dis- spondylolysis, that his neurologic exam was ability payments. He graduated from high normal, there were no mechanical findings, and school and studied computer science for two that he was not disabled, and again stated that years at a junior college. He worked as a sea- he was fit for light to medium work with a sonal migrant worker from 1975-1988, loading thirty-pound lifting restriction. and unloading produce from trucks. He stopped working in 1988 after pulling a On January 30, 1995, Villarreal was muscle. admitted to the hospital. After a number of tests were performed, Meadows formed the Villarreal has an extensive medical history impression that Villarreal had progressive and has been examined by many physicians. neurologic deficit with significant upper The earliest event in the record occurred April extremity weakness, loss of the ability to 15, 1993, when he went to South Texas Rural coordinate muscular movement, and a Health Services complaining of back pain that decrease in cranial nerve function. Dr. Robert had begun when he picked up a five-gallon Shoumaker, a neurologist, examined Villarreal, bottle of water. On April 26, 1993, Villarreal noting some weakness in his hands,2 slight was examined by Dr. Gilbert Meadows and weakness in legs, and that his gait without complained of a constant low grade achiness in crutches was “very histrionic.” Shoumaker his lower back, but Meadows found no leg indicated that Villarreal was generally very symptoms. histrionic and that this was accentuating all the symptoms. Villarreal weighed 277 pounds and exhibited marked back tenderness, but he was A February 6, 1995, letter from Meadows able to bend and touch his ankles, and his heel stated that Villarreal has “some sort of primary and toe walk was normal. Meadows’s neurologic disorder that is severe and probably impression was a trigger point of the lumbar progressive” but of unknown etiology. On spine with possible spondylolysis, or February 17, 1995, Shoumaker examined dissolution of vertebrae. Villarreal was given Villarreal; his EMG evaluation revealed prescriptions for Motrin and Robaxin, was evidence of diffuse and severe denervation in recommended a home exercise program, and the muscles of the left arm, left leg, and right was told that he should be able to return to lower leg. He suggested that these changes work.

On January 25, 1994, Meadows stated that 2 Shoumaker, however, specifically noted that Villarreal’s effort in hand tests was questionable.

2 were most compatible with a motor neuron disease.” Hart noted that there was a positive disease. Because of some features atypical of family history for a similar disease and that motor neuron disease, however, Shoumaker Villarreal had other indicators of such a requested a second opinion. His impression disease, including a reported ninety-pound was neuromuscular dysfunction and lumbar weight loss. His discharge diagnosis was vita- radiculopathy.3 min B-12 deficiency, upper and lower extremity weakness and sensory changes of On February 22, 1995, Dr. Carlayne unknown etiology, and chronic low back pain. Jackson examined Villarreal. She noted that Villarreal complained that since his injury in On April 23, 1995, Dr. Dimmette noted April 1993, he had experienced muscle that Villarreal had an astasia-abasia5 gait and spasms, numbness, and his legs giving out, and that his exam was consistent with ALS. On that in December 1994 he began to experience July 20, 1995, Kenneth Shauger, a neurology bilateral hand weakness that caused him to resident, stated that Villarreal’s disability was drop things and had progressed to the point “way out of proportion to his weakness, with that he required assistance bathing and a strong functional component.” He did not dressing. In February 1995, Villarreal believe that Villarreal had ALS; he encouraged reported that he had become wheelchair- Villarreal to engage in physical activity and to dependent and that he had lost ninety pounds discontinue using a wheelchair. On October since April 1993.4 Jackson noted the 26, 1995, Shauger noted a mild distal weak- possibility of amyotrophic lateral sclerosis ness and atrophy of uncertain etiology but that (“ALS”) but also noted some inconsistencies Villarreal’s disability was out of proportion to with that diagnosis. She recommended his weakness, and he should discontinue using additional studies to determine the etiology of a wheelchair. Villarreal’s symptoms. A residual functional capacity assessment In April 1995, Villarreal was admitted to (“RFCA”) was performed by a nontreating the hospital for testing. His progress notes physician on October 17, 1995. This stated, “Mr. Villarreal presents a complex and assessment indicated that Villarreal’s confusing neurologic picture. On exam, he has exertional limitations were lifting 20 pounds findings consistent with B-12 deficiency . . . . occasionally, 10 pounds frequently, sitting However, EMG nerve conduction studies about 6 hours of an 8-hour work day, and support the diagnosis of motor neuron standing or walking at least 2 hours in an 8- hour work day. He was limited to 3 occasionally balancing, stooping, kneeling, Radiculopathy is a clinical situation in which crouching, crawling, and climbing stairs and the radicular nerve is compressed by a herniated disk. 4 5 It appears unlikely that such a large weight According to Stedman’s Medical Dictionary, loss actually took place. Though Villarreal astasia-abasia is “the inability to either stand or indicated that the drop occurred between April walk in the normal manner; the person affected 1993 and February 1995, records show that he seems to collapse when attempting to walk, as if to weighed 279 pounds on April 15, 1993, and 258 prove that he cannot do so; a symptom of pounds on Jan. 26, 1995. conversion hysteria.”

3 was prohibited from climbing a ladder or the lower half of his body gave out, and he fell scaffold. The RFCA indicated mild limitations down. Villarreal stated that his legs had not in reaching, handling, fingering, and feeling. worked properly since that time. He alleged This assessment was affirmed on January 30, that he had back problems and weak hands, 1996. legs, and knees. His claim was denied initially and again on reconsideration. On January 25, 1996, Villarreal’s progress notes indicate that he was attempting to get a A hearing on his claims was held before an job and had mild distal weakness and atrophy administrative law judge (“ALJ”). Villarreal of unknown etiology, with significant testified that he could no longer cook, change functional overlay regarding the weakness and himself, or cut his own meat because his hands his gait. Further notes from July 11, 1996, shake and that they become numb when he lifts indicate similar symptoms but that his disability heavy objects so that he loses his grip. During was out of proportion with the weakness. the hearing, Villarreal apparently had an episode in which he ended up out of his In August 1996, Villarreal received a psy- wheelchair and on the floor. The ALJ went off chiatric evaluation to rule out a conversion the record during the incident. Dr. William disorder. According to this exam, Villarreal Healy, a medical expert, testified at the hearing participated significantly in the upkeep of his that he believed that Villarreal met Listing parents’ house, and he enjoyed going to the 11.14.6 movies and other leisure activities. The doctor noted that Villarreal’s gait was characteristic The ALJ determined that Villarreal had of astasia-abasia and that the psychiatric mild distal weakness/atrophy and history of examination was normal except for Villarreal’s glaucoma but not an impairment or gait and did not point to a conversion disorder. combination of impairments equivalent to one It also was not one of the four profiles most listed in Appendix 1, Subpart P, Reg. No. 4. commonly obtained from someone with He found that Villarreal was not wholly chronic pain. credible and that there was no indication that his impairments interfered substantially with Dr. Joe Frey, an eye physician and surgeon, his activities of daily living. The ALJ rejected prepared a medical impairment evaluation in- dicating that Villarreal had a disabling undiag- 6 nosed or unnamed motor neuron disease and Listing 11.14 relates to peripheral neuropa- glaucoma. Frey stated that Villarreal’s thies as a category of impairment and notes that glaucoma had improved with treatment but they exhibit “disorganization of motor function as that he had some loss of visual field. described in 11.04B, in spite of prescribed treatment.” Listing 11.04B describes “[s]ignificant and persistent disorganization of motor function in II. two extremities, resulting in sustained disturbance Villarreal applied for supplemental security of gross and dexterous movements, or gait and income (“SSI”) benefits on January 26, 1995. station.” Listing 11.00C notes that in assessing the As to the cause of his disability, he stated that impairment from disorganization of motor function when on April 15, 1993, he bent over to pick it is necessary to consider the degree of interference up a container of water, a sharp pain hit him, with locomotion and/or use of fingers, hands, and arms.

4 the medical expert’s opinion and found that We may not re-weigh the evidence, try the Villarreal retained the residual functional issues de novo, or substitute our judgment for capacity to perform at least sedentary work, that of the Commissioner, even if we believe that he could not perform his past relevant that the evidence weighs against the work, and that based on his age, education, Commissioner’s decision. Id. “Conflicts in and work experience, 20 C.F.R. 416.969 and the evidence are for the Commissioner and not Rule 201.27, Table No. 1 of Appendix 2, the courts to resolve.” Id. (citations and Subpart P, Reg. No. 4, directed a conclusion internal alterations omitted). of not disabled. The Appeals Council denied his request for review. The claimant bears the burden of showing that he suffers from a disability, which the So- Villarreal sued, alleging that the cial Security Act defines as a medically Commissioner’s decision was not supported by determinable physical or mental impairment substantial evidence and that t he lasting at least twelve months that prevents the Commissioner had failed to apply the proper claimant from engaging in substantial gainful legal standards to his claim. The magistrate activity.

(d)(1)(A); Newton, judge issued a report and recommendation 209 F.3d at 452. In determining whether a opining that Villarreal’s motion for summary claimant is disabled, the Commissioner judgment be denied and that the employs a five-step sequential evaluation and Commissioner’s decision denying benefits be must decide that (1) the individual is not affirmed. The district court adopted the report currently engaged in substantial gainful and recommendation, denied the motion for activity, (2) the individual has a “severe summary judgment, and affirmed the impairment,” (3) the impairment meets or Commissioner’s decision denying benefits. equals a listed impairment in Appendix 1 of the regulations, (4) the individual is not capable of III. performing past relevant work, and (5) the We are limited, in our review of the impairment prevents the claimant from doing Commissioner’s decision, to considering any other work, taking into consideration whether the decision is supported by residual functional capacity, age, education, substantial evidence on the record and whether and past work experience. 20 C.F.R. § the Commissioner applied the proper legal 404.1520; Newton, 209 F.3d at 453. standard. See

(g); see also Brown v. Apfel,

(5th Cir. If the claimant presents sufficient proof to 1999). Substantial evidence is “such relevant satisfy the first four steps, the burden shifts to evidence as a reasonable mind might accept as the Commissioner to prove that the claimant adequate to support a conclusion.” can perform other substantial work in the na- Richardson v. Perales,

, 401 tional economy. Newton, 209 F.3d at 453; (quoting Consolidated Edison Co. v. NLRB, Chapparro v. Bowen,

, 1010

(1938)). Such evidence “is (5th Cir. 1987). The burden of proof then more than a mere scintilla and less than a shifts back to the claimant to rebut the preponderance.” Newton v. Apfel, 209 F.3d Commissioner’s showing. Chapparro, 815 448, 452 (5th Cir. 2000) (citations omitted). F.2d at 1010. The inquiry ends if at any point there is a finding that the claimant is not

5 disabled. Lovelace v. Bowen,

, 58 the legs were abnormal. He stated that he felt (5th Cir. 1987). that Villarreal met Listing 11.14 because he did not believe that this was a conversion IV. disorder, though he noted that Villarreal had Villarreal argues that the ALJ’s decision not anxiety reactions as indicated by the episode to credit medical expert Healy’s opinion that during the hearing when he hyperventilated. he met Listing 11.14, Peripheral Neuropathies, He stated that there were lab and physical is not supported by substantial evidence and findings and two EMG conduction studies that was contrary to Social Security Rulings 96-5p support the diagnosis of upper motor neuron and 96-6p. Villarreal further argues that the disease, elevated CSF protein, a ninety-pound ALJ erred in his credibility assessments of the weight loss, and repeatedly abnormal B-12 witnesses. Finally, Villarreal asserts that the levels. ALJ’s application of the Medical-Vocational Guidelines was erroneous, given evidence of Healy admitted that other doctors had non-exertional impairments. reached conclusions different from his. He also mentioned that Villarreal’s grandfather A. had died at an early age from an unknown neu- Villarreal avers that the ALJ’s decision not rological illness that had caused him to be to credit the medical expert’s opinion that he paralyzed. Healy recommended “a meeting or met Listing 11.14, Peripheral Neuropathies, is equaling with a three year diary”7 to see not supported by substantial evidence. Villar- whether time would clarify the picture. He real asserts that Healy’s opinions were not in- admitted that he would not have expected the consistent with the objective medical evidence, motor and sensory reflex in the lower and it was error for the ALJ to disregard them. extremities to be within normal limits, as Villarreal further argues that the ALJ failed to Villarreal’s were in July 1996. provide a valid rationale for not crediting the medical expert’s opinion and disregarding the In weighing Healy’s conclusions, the ALJ opinions o f treating physicians, in listed a number of indications from the medical contradiction to Social Security Rulings 96-5p professionals who were skeptical about and 96-6p. SSR 96-5P requires the ALJ to Villarreal’s condition. He noted the provide an appropriate explanation for psychiatric evaluation did not point to a accepting or rejecting a medical source’s conversion order and that the MMPI profile opinion, and SSR 96-6P requires an was normal, not one of chronic pain. He explanation of the weight given to findings of rejected Healy’s opinion that Villarreal met fact by state psychological consultants. Listing 11.14, noting that Healy based this conclusion on his opinion that Villarreal did With respect to physical findings, Healy cit- ed the atrophy of the intrinsic muscles of the hand, deltoid, and triceps, and decreased sen- 7 This apparently is a recommendation for the sory findings to pin prick on the inside of the ALJ to find that Villarreal’s impairment met or wrist. Healy indicated that there was a diffuse equaled a listed impairment under the regulations and undefined but well documented neurologic and that he require Villarreal to keep a diary of his deficit. He noted that the nerve conductions in activities to judge his progress or deterioration over time.

6 not have a conversion disorder. For example, Shoumaker observed that Vil- larreal’s gait without crutches was histrionic, The ALJ noted that Healy recognized that and Shoumaker suspected a strong functional Villarreal had an anxiety attack at the hearing. overlay. He also questioned Villarreal’s effort. The ALJ stated that there was no ninety-pound Dimmette’s opinion found that Villarreal did weight loss shown in the records and that Vil- not require a wheelchair, and Shauger opined larreal’s erroneous report on such a subject af- that Villarreal’s disability was out of fected his credibility and called into question proportion to his weakness and had a strong the opinions of Healy and of those doctors functional overlay. All three of these who relied in part on this reported weight loss physicians specialized in neurology. in making a diagnosis. The ALJ pointed out that although the psychiatrist had concluded In accordance with SSR’s 96-5P and 96- that Villarreal did not have a conversion dis- 6P, the ALJ provided specific reasons for re- order, she did note that his gait was jecting the medical expert’s testimony that Vil- characteristic of astasia-abasia, which is a con- larreal met the impairments in Listing 11.14. version symptom. The ALJ discussed the psychiatric evaluation, noting that the findings were not consistent In discounting Healy’s opinion, the ALJ re- with those of someone in chronic pain. The lied on the July 1996 physical findings, which, ALJ “is entitled to determine the credibility of he stated, showed that motor and sensory medical experts as well as lay witnesses and function in the claimant’s lower extremities weigh their opinions accordingly.” Scott v. were normal. He stated that this contradicted Heckler,

(5th Cir. 1985). Healy’s suggestions but was consistent with other physicians who had examined the When good cause is shown, little weight or claimant and were unimpressed with his illness. even no weight may be given to the physician’s He also noted that Healy was a nonexamining testimony. Though we might have accorded medical source and that his opinions were not more weight to these opinions, “[t]he power to well supported by medically acceptable clinical judge and weigh evidence includes the power and laboratory diagnostic techniques, because to disregard, and we must uphold that there was no objective evidence of significant determination if supported by substantial and persistent disorganization of motor evidence.” Greenspan v. Shalala, 38 F.3d function in two extremities. 232, 238 (5th Cir. 1994). Substantial evidence supports the determinations of the ALJ, so Though Healy’s opinion was supported by they survive our review. Frey’s medical impairment evaluation, the ALJ gave no weight to his opinion that Villarreal B. had a disabling motor neuron disorder because Villarreal argues that the ALJ erred in his Frey was an eye physician. The ALJ credibility assessments of various witnesses. discounted Frey’s opinion regarding Villarre- He asserts that the ALJ improperly focused on al’s alleged motor neuron disorder because isolated comments of treating doctors Frey was an eye surgeon, not a neurologist, regarding conversion and functional overlay, and his opinion was inconsistent with other and the 90-pound weight loss, but did not record evidence. address the psychiatric report that “nullified”

7 these concerns. available that the claimant can perform.” Selders, 924 F.2d at 618. Villarreal points to Meadows’s notation of a 35-pound weight loss in 1994 to show that a The ALJ found that Villarreal’s symptoms 90-pound loss over two years is not did not diminish his residual functional implausible, but that in any case this is im- capacity to perform the full range of sedentary material to the disability determination. Vil- work. The ALJ noted that Villarreal’s larreal contends that the ALJ gave undue impairments could cause some right eye visual weight to the attack that Villarreal had during field loss and minimal weakness, but found the hearing, though there is no discussion of that these symptoms were not to a degree that this episode in the record of the hearing. would prevent all types of work activity. The Villarreal did not raise the issue of the ALJ’s determinations of the ALJ were based on the credibility determination before the district substantial evidence presented, and thus reli- court, so we need not address this issue for the ance on the grids was appropriate. first time on appeal. See Leverette v. Louisville Ladder Co.,

(5th V. Cir. 1999). In summary, the Commissioner carefully considered the record as a whole and made the C. determination that Villarreal was not disabled. Villarreal contends that in light of his severe There is substantial evidence in the record as a limitations in the ability to balance, bend, whole supporting the ALJ’s determinations, crawl, crouch, and operate hand or foot and the appropriate legal standards were ap- controls as a result of the impairments in his plied. The judgment is AFFIRMED. extremities, the ALJ’s mechanical application of the grids was erroneous. He asserts that where there are non-exertional impairments, application of the Medical-Vocational Guidelines is error.

“In determining whether the claimant can do any other work, the [Commissioner] considers the claimant’s residual functional capacity, together with age, education, and work experience, according to the Medical- Vocational Guidelines set forth by the [Commissioner].” Selders v. Sullivan,

(5th Cir. 1990); see 20 C.F.R., subpt. P, app. 2. “When the claimant suffers only from exertional impairments or his non- exertional impairments do not significantly affect his residual functional capacity, the ALJ may rely exclusively on the Guidelines in determining whether there is other work

8