Butler v. Barnhart

* 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that this opinion should not be published and is not precedent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.
United States Court of Appeals
Fifth Circuit
F I L E D
June 2, 2004
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-31052
Summary Calendar
GREGORY BUTLER,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 02-CV-1805
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Before SMITH, DeMOSS, and STEWART, Circuit Judges.
PER CURIAM:*
Gregory Butler appeals the district court’s judgment affirming
the Commissioner's decision denying his application
for Supplemental Security Income ("SSI"). In reviewing the
Commissioner’s decision to deny SSI, this court must determine
whether there is substantial evidence in the record to support it
and whether the proper legal standards were used in evaluating the
evidence. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.

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1994).
Butler argues that the administrative law judge (ALJ) failed
to consider the opinions of the state consulting physician that he
could perform only sedentary work or the evidence that he could not
stand or walk for six hours in an eight-hour work day. He argues
that there was not substantial evidence to support the finding that
he could perform a full range of light work or his past relevant
work as a dishwasher.
“[A]dministrative law judges must consider findings of
State agency medical . . . consultants . . . as opinion evidence.”
See 20 C.F.R. § 404.1527(f)(2)(i). In determining disability, the
ALJ must also accord considerable weight to the opinions,
diagnoses, and medical evidence of a treating physician who is
familiar with the claimant’s injuries, treatments, and responses.
Loza v. Apfel, 219 F.3d 378, 395 (5th Cir. 2000). An ALJ may not
reject a medical opinion without explanation and must show good
cause for doing so. Loza, 219 F.3d at 395; Myers v. Apfel, 238
F.3d 617, 621 (5th Cir. 2001).
The ALJ failed to show good cause for rejecting the opinions
of all the physicians who treated and/or examined Butler with
respect to his residual functional capacity. There was no medical
opinion or evidence submitted reflecting that, after Butler had two
and one-half toes amputated from his left foot, he could perform
work requiring standing or walking for six-hour periods during an
eight-hour work day. Thus, there was not substantial medical

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evidence in the record to support the ALJ’s determination that
Butler could perform a full range of light work or his past
relevant work as a dishwasher. See 20 C.F.R. §§ 404.1520(e),
404.1567(b); Lawler v. Heckler, 761 F.2d 195, 198 (5th Cir. 1985).
The judgment of the district court is VACATED and the case is
REMANDED to the district court with instructions to return the case
to the Commissioner for reconsideration of Butler’s residual
functional capacity and a determination whether there are jobs
existing in the economy that Butler has the residual functional
capacity to perform.
Butler’s argument that his mental impairment should have been
considered by the ALJ in determining whether he was disabled was
not raised in his appeal presented to the Appeals Council. The
court will not review a claim that has not been administratively
exhausted. See McQueen v. Apfel, 168 F.3d 152, 155 (5th Cir.
1999).
Butler’s argument that there was no evidence that the ALJ
considered Butler’s ability to work on a sustained basis was not
raised in the district court. Thus, this argument is not subject
to review. Chaparro v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987).
VACATED AND REMANDED.

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