Gardner v. Massanari

1 Larry G. Massanari has replaced Kenneth S. Apfel as
acting Commissioner of Social Security and is therefore
substituted in accordance with Fed. R. App. P. 43(c)(2).
** 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-50449
Summary Calendar
CHARLES GARDNER,
Plaintiff-Appellant,
versus
LARRY G. MASSANARI,
ACTING COMMISSIONER OF SOCIAL SECURITY,1
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
(SA-98-CV-850)
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June 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:**
Plaintiff-Appellant Charles Gardner appeals the district
court’s affirmance of the Social Security Commissioner’s denial of
supplemental security income and disability insurance benefits. He
first avers that the district court erred in finding that it did
not have jurisdiction to address two of his claims that were not

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raised in his request for review to the Appeals Council. Gardner
is correct.
The Supreme Court in Sims v. Apfel, 530 U.S. 103, 112 (2000),
held that to preserve issues for judicial review, a claimant who
has exhausted his administrative remedies is not also required to
exhaust issues in a request for review by the Appeals Council.
Accordingly, we have jurisdiction to review Gardner’s claims
brought for the first time before the district court.
Gardner asserts that the Administrative Law Judge (ALJ) erred
in (1) failing to accord proper weight to testimony of Gardner’s
mother and to Gardner’s claims of indigency and fear of surgery,
when the ALJ assessed credibility; (2) failing to consider all of
Gardner’s impairments; and (3) posing an inadequate hypothetical
question to the vocational expert (VE). Appellate review of the
Commissioner’s denial of benefits is limited to determining whether
(1) proper legal standards were used to evaluate the evidence; and
(2) the decision is supported by substantial evidence. Villa v.
Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990).
We reject Gardner’s challenge to the ALJ’s credibility
determinations. “‘The evaluation of a claimant’s subjective
symptoms is a task particularly within the province of the ALJ who
has an opportunity to observe whether a person seems to be
disabled.’” Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir.
1988)(citation omitted).
A review of the ALJ’s decision reveals that he considered
Gardner’s subjective complaints of pain and limitations and found

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that his testimony was not credible when compared to the medical
evidence. We will not disturb the ALJ’s credibility
determinations. Harrell, 862 F.2d at 480.
We also reject Gardner’s complaint that the ALJ failed to
accord proper weight to the testimony of Gardner’s mother. Even
though it would have been preferable for the ALJ to comment
directly on the testimony of Gardner’s mother, any error in failing
to do so was harmless. “Procedural perfection in administrative
proceedings is not required” as long as “the substantial rights of
a party have [not] been affected.” Mays v. Bowen, 837 F.2d 1362,
1364 (5th Cir. 1988). The ALJ’s failure to comment directly on the
testimony of Gardner’s mother, which was essentially duplicative of
Gardner’s own testimony, did not affect Gardner’s substantial
rights.
Gardner’s argument that the ALJ failed to consider all of his
impairments in the disability determination is belied by the
record. “[I]n making a determination as to disability, the ALJ
must analyze both the ‘disabling effect of each of the claimant’s
ailments’ and the ‘combined effect of all of these impairments.’”
Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987). When the ALJ
undertakes this analysis to determine whether the claimant’s
impairments meet or equal an impairment listed in Appendix 1 of the
Regulations, the general requirement to consider the claimant’s
impairments in combination is satisfied. See Owens v. Heckler, 770
F.2d 1276, 1282 (5th Cir. 1985). The ALJ determined that, despite
Gardner’s suffering from severe herniated discs, an adjustment

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disorder with a depressed mood, borderline intellectual
functioning, and mild asthma, he did “not have an impairment or
combination of impairments listed in, or medically equal to one
listed in Appendix 1.” This finding was sufficient under Owens to
satisfy the requirement that the claimant’s impairments be
considered in combination.
We likewise reject Gardner’s challenge to the hypothetical
question posed to the VE. The hypothetical question that an ALJ
poses to a VE need only incorporate the disabilities that the ALJ
recognizes. Bowling v. Shalala, 36 F.3d 431, 435(5th Cir. 1994);
Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988). If the ALJ’s
hypothetical example omits a recognized limitation but “the
claimant or his representative is afforded the opportunity to
correct deficiencies in the ALJ’s question by mentioning or
suggesting to the vocational expert any purported defects in the
hypothetical questions (including additional disabilities not
recognized by the ALJ’s findings and disabilities recognized but
omitted from the question),” there is no reversible error.
Bowling, 36 F.3d at 436
Gardner does not dispute that his non-attorney representative
was allowed to cross-examine the VE regarding the ALJ’s
hypothetical question. Thus, even assuming, arguendo, that the
ALJ’s hypothetical question was deficient in the respects urged on
appeal, affording Gardner’s representative an opportunity to
correct any perceived deficiencies precludes a finding of
reversible error. See id.

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Inasmuch as Gardner has failed to show that the Commissioner’s
decision was not based on the proper legal standards or that it was
not supported by substantial evidence, the decision of the district
court affirming the Commissioner’s denial of benefits is
AFFIRMED.
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