Villarreal v. Barnhart

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
CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Juan Villarreal, an applicant for Social Se-
curity disability benefits (“SSI”), appeals a de-
termination by the Commissioner of Social
Security that Villarreal was not disabled within
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
(continued...)
*(...continued)
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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the meaning of the Social Security Act. Our
review of the record persuades us that
Villarreal’s claims have been tested by the
proper legal standards and that the
Commissioner’s decision is based on
substantial evidence. We therefore affirm.
I.
Villarreal was born July 3, 1960, and was
thirty-four years old when he applied for dis-
ability payments. He graduated from high
school and studied computer science for two
years at a junior college. He worked as a sea-
sonal migrant worker from 1975-1988, loading
and unloading produce from trucks. He
stopped working in 1988 after pulling a
muscle.
Villarreal has an extensive medical history
and has been examined by many physicians.
The earliest event in the record occurred April
15, 1993, when he went to South Texas Rural
Health Services complaining of back pain that
had begun when he picked up a five-gallon
bottle of water. On April 26, 1993, Villarreal
was examined by Dr. Gilbert Meadows and
complained of a constant low grade achiness in
his lower back, but Meadows found no leg
symptoms.
Villarreal weighed 277 pounds and
exhibited marked back tenderness, but he was
able to bend and touch his ankles, and his heel
and toe walk was normal. Meadows’s
impression was a trigger point of the lumbar
spine with possible spondylolysis, or
dissolution of vertebrae. Villarreal was given
prescriptions for Motrin and Robaxin, was
recommended a home exercise program, and
was told that he should be able to return to
work.
On January 25, 1994, Meadows stated that
Villarreal had lost about thirty-five pounds and
that spondylolysis was apparent from an x-ray.
On June 2, 1994, Meadows found that
Villarreal had improved and that he was fit for
work in the light to medium range with a thir-
ty-pound weight restriction. He gave Villarre-
al a prescription for anti-inflammatories and
muscle relaxants. On October 5, 1994,
Meadows stated that Villarreal still exhibited
spondylolysis, that his neurologic exam was
normal, there were no mechanical findings, and
that he was not disabled, and again stated that
he was fit for light to medium work with a
thirty-pound lifting restriction.
On January 30, 1995, Villarreal was
admitted to the hospital. After a number of
tests were performed, Meadows formed the
impression that Villarreal had progressive
neurologic deficit with significant upper
extremity weakness, loss of the ability to
coordinate muscular movement, and a
decrease in cranial nerve function. Dr. Robert
Shoumaker, a neurologist, examined Villarreal,
noting some weakness in his hands,2 slight
weakness in legs, and that his gait without
crutches was “very histrionic.” Shoumaker
indicated that Villarreal was generally very
histrionic and that this was accentuating all the
symptoms.
A February 6, 1995, letter from Meadows
stated that Villarreal has “some sort of primary
neurologic disorder that is severe and probably
progressive” but of unknown etiology. On
February 17, 1995, Shoumaker examined
Villarreal; his EMG evaluation revealed
evidence of diffuse and severe denervation in
the muscles of the left arm, left leg, and right
lower leg. He suggested that these changes
2 Shoumaker, however, specifically noted that
Villarreal’s effort in hand tests was questionable.

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

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

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the medical expert’s opinion and found that
Villarreal retained the residual functional
capacity to perform at least sedentary work,
that he could not perform his past relevant
work, and that based on his age, education,
and work experience, 20 C.F.R. 416.969 and
Rule 201.27, Table No. 1 of Appendix 2,
Subpart P, Reg. No. 4, directed a conclusion
of not disabled. The Appeals Council denied
his request for review.
Villarreal sued, alleging that the
Commissioner’s decision was not supported by
substantial evidence and that t he
Commissioner had failed to apply the proper
legal standards to his claim. The magistrate
judge issued a report and recommendation
opining that Villarreal’s motion for summary
judgment be denied and that the
Commissioner’s decision denying benefits be
affirmed. The district court adopted the report
and recommendation, denied the motion for
summary judgment, and affirmed the
Commissioner’s decision denying benefits.
III.
We are limited, in our review of the
Commissioner’s decision, to considering
whether the decision is supported by
substantial evidence on the record and whether
the Commissioner applied the proper legal
standard. See 42 U.S.C. § 405(g); see also
Brown v. Apfel, 192 F.3d 492, 496 (5th Cir.
1999). Substantial evidence is “such relevant
evidence as a reasonable mind might accept as
adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401
(quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). Such evidence “is
more than a mere scintilla and less than a
preponderance.” Newton v. Apfel, 209 F.3d
448, 452 (5th Cir. 2000) (citations omitted).
We may not re-weigh the evidence, try the
issues de novo, or substitute our judgment for
that of the Commissioner, even if we believe
that the evidence weighs against the
Commissioner’s decision. Id. “Conflicts in
the evidence are for the Commissioner and not
the courts to resolve.” Id. (citations and
internal alterations omitted).
The claimant bears the burden of showing
that he suffers from a disability, which the So-
cial Security Act defines as a medically
determinable physical or mental impairment
lasting at least twelve months that prevents the
claimant from engaging in substantial gainful
activity. 42 U.S.C. § 423(d)(1)(A); Newton,
209 F.3d at 452. In determining whether a
claimant is disabled, the Commissioner
employs a five-step sequential evaluation and
must decide that (1) the individual is not
currently engaged in substantial gainful
activity, (2) the individual has a “severe
impairment,” (3) the impairment meets or
equals a listed impairment in Appendix 1 of the
regulations, (4) the individual is not capable of
performing past relevant work, and (5) the
impairment prevents the claimant from doing
any other work, taking into consideration
residual functional capacity, age, education,
and past work experience. 20 C.F.R. §
404.1520; Newton, 209 F.3d at 453.
If the claimant presents sufficient proof to
satisfy the first four steps, the burden shifts to
the Commissioner to prove that the claimant
can perform other substantial work in the na-
tional economy. Newton, 209 F.3d at 453;
Chapparro v. Bowen, 815 F.2d 1008, 1010
(5th Cir. 1987). The burden of proof then
shifts back to the claimant to rebut the
Commissioner’s showing. Chapparro, 815
F.2d at 1010. The inquiry ends if at any point
there is a finding that the claimant is not

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disabled. Lovelace v. Bowen, 813 F.2d 55, 58
(5th Cir. 1987).
IV.
Villarreal argues that the ALJ’s decision not
to credit medical expert Healy’s opinion that
he met Listing 11.14, Peripheral Neuropathies,
is not supported by substantial evidence and
was contrary to Social Security Rulings 96-5p
and 96-6p. Villarreal further argues that the
ALJ erred in his credibility assessments of the
witnesses. Finally, Villarreal asserts that the
ALJ’s application of the Medical-Vocational
Guidelines was erroneous, given evidence of
non-exertional impairments.
A.
Villarreal avers that the ALJ’s decision not
to credit the medical expert’s opinion that he
met Listing 11.14, Peripheral Neuropathies, is
not supported by substantial evidence. Villar-
real asserts that Healy’s opinions were not in-
consistent with the objective medical evidence,
and it was error for the ALJ to disregard them.
Villarreal further argues that the ALJ failed to
provide a valid rationale for not crediting the
medical expert’s opinion and disregarding the
opinions o f treating physicians, in
contradiction to Social Security Rulings 96-5p
and 96-6p. SSR 96-5P requires the ALJ to
provide an appropriate explanation for
accepting or rejecting a medical source’s
opinion, and SSR 96-6P requires an
explanation of the weight given to findings of
fact by state psychological consultants.
With respect to physical findings, Healy cit-
ed the atrophy of the intrinsic muscles of the
hand, deltoid, and triceps, and decreased sen-
sory findings to pin prick on the inside of the
wrist. Healy indicated that there was a diffuse
and undefined but well documented neurologic
deficit. He noted that the nerve conductions in
the legs were abnormal. He stated that he felt
that Villarreal met Listing 11.14 because he
did not believe that this was a conversion
disorder, though he noted that Villarreal had
anxiety reactions as indicated by the episode
during the hearing when he hyperventilated.
He stated that there were lab and physical
findings and two EMG conduction studies that
support the diagnosis of upper motor neuron
disease, elevated CSF protein, a ninety-pound
weight loss, and repeatedly abnormal B-12
levels.
Healy admitted that other doctors had
reached conclusions different from his. He
also mentioned that Villarreal’s grandfather
had died at an early age from an unknown neu-
rological illness that had caused him to be
paralyzed. Healy recommended “a meeting or
equaling with a three year diary”7 to see
whether time would clarify the picture. He
admitted that he would not have expected the
motor and sensory reflex in the lower
extremities to be within normal limits, as
Villarreal’s were in July 1996.
In weighing Healy’s conclusions, the ALJ
listed a number of indications from the medical
professionals who were skeptical about
Villarreal’s condition. He noted the
psychiatric evaluation did not point to a
conversion order and that the MMPI profile
was normal, not one of chronic pain. He
rejected Healy’s opinion that Villarreal met
Listing 11.14, noting that Healy based this
conclusion on his opinion that Villarreal did
7 This apparently is a recommendation for the
ALJ to find that Villarreal’s impairment met or
equaled a listed impairment under the regulations
and that he require Villarreal to keep a diary of his
activities to judge his progress or deterioration over
time.

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not have a conversion disorder.
The ALJ noted that Healy recognized that
Villarreal had an anxiety attack at the hearing.
The ALJ stated that there was no ninety-pound
weight loss shown in the records and that Vil-
larreal’s erroneous report on such a subject af-
fected his credibility and called into question
the opinions of Healy and of those doctors
who relied in part on this reported weight loss
in making a diagnosis. The ALJ pointed out
that although the psychiatrist had concluded
that Villarreal did not have a conversion dis-
order, she did note that his gait was
characteristic of astasia-abasia, which is a con-
version symptom.
In discounting Healy’s opinion, the ALJ re-
lied on the July 1996 physical findings, which,
he stated, showed that motor and sensory
function in the claimant’s lower extremities
were normal. He stated that this contradicted
Healy’s suggestions but was consistent with
other physicians who had examined the
claimant and were unimpressed with his illness.
He also noted that Healy was a nonexamining
medical source and that his opinions were not
well supported by medically acceptable clinical
and laboratory diagnostic techniques, because
there was no objective evidence of significant
and persistent disorganization of motor
function in two extremities.
Though Healy’s opinion was supported by
Frey’s medical impairment evaluation, the ALJ
gave no weight to his opinion that Villarreal
had a disabling motor neuron disorder because
Frey was an eye physician. The ALJ
discounted Frey’s opinion regarding Villarre-
al’s alleged motor neuron disorder because
Frey was an eye surgeon, not a neurologist,
and his opinion was inconsistent with other
record evidence.
For example, Shoumaker observed that Vil-
larreal’s gait without crutches was histrionic,
and Shoumaker suspected a strong functional
overlay. He also questioned Villarreal’s effort.
Dimmette’s opinion found that Villarreal did
not require a wheelchair, and Shauger opined
that Villarreal’s disability was out of
proportion to his weakness and had a strong
functional overlay. All three of these
physicians specialized in neurology.
In accordance with SSR’s 96-5P and 96-
6P, the ALJ provided specific reasons for re-
jecting the medical expert’s testimony that Vil-
larreal met the impairments in Listing 11.14.
The ALJ discussed the psychiatric evaluation,
noting that the findings were not consistent
with those of someone in chronic pain. The
ALJ “is entitled to determine the credibility of
medical experts as well as lay witnesses and
weigh their opinions accordingly.” Scott v.
Heckler, 770 F.2d 482, 485 (5th Cir. 1985).
When good cause is shown, little weight or
even no weight may be given to the physician’s
testimony. Though we might have accorded
more weight to these opinions, “[t]he power to
judge and weigh evidence includes the power
to disregard, and we must uphold that
determination if supported by substantial
evidence.” Greenspan v. Shalala, 38 F.3d
232, 238 (5th Cir. 1994). Substantial evidence
supports the determinations of the ALJ, so
they survive our review.
B.
Villarreal argues that the ALJ erred in his
credibility assessments of various witnesses.
He asserts that the ALJ improperly focused on
isolated comments of treating doctors
regarding conversion and functional overlay,
and the 90-pound weight loss, but did not
address the psychiatric report that “nullified”

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these concerns.
Villarreal points to Meadows’s notation of
a 35-pound weight loss in 1994 to show that a
90-pound loss over two years is not
implausible, but that in any case this is im-
material to the disability determination. Vil-
larreal contends that the ALJ gave undue
weight to the attack that Villarreal had during
the hearing, though there is no discussion of
this episode in the record of the hearing.
Villarreal did not raise the issue of the ALJ’s
credibility determination before the district
court, so we need not address this issue for the
first time on appeal. See Leverette v.
Louisville Ladder Co., 183 F.3d 339, 342 (5th
Cir. 1999).
C.
Villarreal contends that in light of his severe
limitations in the ability to balance, bend,
crawl, crouch, and operate hand or foot
controls as a result of the impairments in his
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, 914
F.2d 614, 618 (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
available that the claimant can perform.”
Selders, 924 F.2d at 618.
The ALJ found that Villarreal’s symptoms
did not diminish his residual functional
capacity to perform the full range of sedentary
work. The ALJ noted that Villarreal’s
impairments could cause some right eye visual
field loss and minimal weakness, but found
that these symptoms were not to a degree that
would prevent all types of work activity. The
determinations of the ALJ were based on the
substantial evidence presented, and thus reli-
ance on the grids was appropriate.
V.
In summary, the Commissioner carefully
considered the record as a whole and made the
determination that Villarreal was not disabled.
There is substantial evidence in the record as a
whole supporting the ALJ’s determinations,
and the appropriate legal standards were ap-
plied. The judgment is AFFIRMED.

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