Opinion
SA-22-CV-01349-OLG
09-15-2023
KAREN ANN JAKOBS, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
Honorable Orlando L. Garcia United States District Judge.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
ELIZABETH S. ("BETSY") CHESTNEY UNITED STATES MAGISTRATE JUDGE.
This Report and Recommendation concerns Plaintiff's request for review of the administrative denial of her application for Disability Insurance Benefits (“DIB”) under Title II. 42 U.S.C. §§ 405(g), 1383(c)(3). The undersigned held a hearing on the issues raised in this appeal on July 31, 2023, at which counsel for both parties appeared. After considering Plaintiff's Original Brief [#7], Defendant's Brief in Support of the Commissioner's Decision [#9], Plaintiff's Reply Brief [#12], the transcript (“Tr.”) of the Social Security Administration (“SSA”) proceedings [#4], the other pleadings on file, the applicable case authority and relevant statutory and regulatory provisions, the arguments of counsel at the hearing, and the entire record in this matter, the undersigned concludes that the Commissioner did not commit any reversible error in the underlying administrative proceedings and that substantial evidence supports the Commissioner's decision denying DIB. It is therefore recommended that the Commissioner's decision that Plaintiff is not disabled be AFFIRMED.
I. Jurisdiction
This Court has jurisdiction to review a decision of the Social Security Administration pursuant to 42 U.S.C. § 405(g). The undersigned has authority to enter this recommendation pursuant to 28 U.S.C. § 636(b)(1)(B).
II. Legal Standard
In reviewing the denial of benefits, the Court is limited to a determination of whether the Commissioner, through the administrative law judge's (“ALJ's”) decision, applied the proper legal standards and whether the Commissioner's decision is supported by substantial evidence. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995); 42 U.S.C. §§ 405(g), 1383(c)(3). “Substantial evidence is more than a scintilla, less than preponderance, and is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Villa v. Sullivan, 895 F.2d 1019, 1021-22 (5th Cir. 1990) (quoting Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983)). The Court may not reweigh the evidence or substitute its judgment for that of the Commissioner. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Conflicts in the evidence and credibility assessments are for the Commissioner, not the court, to resolve. Id. While substantial deference is afforded the Commissioner's factual findings, the Commissioner's legal conclusions, and claims of procedural error, are reviewed de novo. See Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
In this case, because the Appeals Council declined to review the ALJ's decision, the decision of the ALJ constitutes the final decision of the Commissioner, and the ALJ's factual findings and legal conclusions are imputed to the Commissioner. See Higginbotham v. Barnhart, 405 F.3d 332, 336 (5th Cir. 2005); Harris v. Apfel, 209 F.3d 413, 414 (5th Cir. 2000).
In determining if a claimant is disabled, the Commissioner uses a sequential, five-step approach, which considers whether: (1) the claimant is currently engaged in substantial gainful activity, (2) he has a severe impairment, (3) the impairment meets the severity of an impairment enumerated in the relevant regulations, (4) it prevents the claimant from performing past relevant work, and (5) it prevents him from doing any relevant work. Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018). If the claimant gets past the first four stages, then the burden shifts to the Commissioner on the fifth step to prove the claimant's employability. Id. A finding that a claimant is not disabled at any point in the five-step review is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987); see also 20 C.F.R. § 404.1520(a)(4).
III. Factual Background
Plaintiff Karen Ann Jakobs filed her application for DIB on July 22, 2020, alleging a disability onset date of October 1, 2016. (Tr. [#4], at 220-26.) Plaintiff alleges she cannot work due to a combination of physical and mental impairments-osteoarthritis, fibromyalgia, anxiety (panic disorder), insomnia, shoulder problems, weight-bearing joint issue with knees, high blood pressure, chronic obstructive pulmonary disease (COPD), depression, and acid reflux. (Tr. 257.) An Adult Function Report completed by Plaintiff on September 1, 2020, explains that Plaintiff suffers from panic attacks, cannot sit or stand for prolonged periods of time, cannot squat or kneel, has difficulty concentrating, struggles with pain, and can no longer lift heavy objects. (Tr. 279, 284.)
At the time of her disability application, Plaintiff was 58 years old with an associate's degree from San Antonio College in computer programming. (Tr. 63, 220, 258.) Plaintiff has past work experience as a computer programmer; in these positions she worked primarily in a seated position and lifted no more than a box of computer paper (30 to 40 pounds). (Tr. 63-66.) Plaintiff also worked for Amazon doing inventory control, where she walked 13 to 17 miles a day inside the warehouse performing her duties. (Tr. 68.) Closer to the filing of her disability application, Plaintiff worked part-time as a cashier and in retail and performed data entry in an attempt to manage her pain and symptoms. (Tr. 66-67.)
Plaintiff's application for DIB was denied initially on February 2, 2021 (Tr. 95-110), and upon reconsideration on April 22, 2021 (Tr. 111-29). Plaintiff requested a hearing before an ALJ, which was held on March 15, 2022. (Tr. 55-95.) Plaintiff, her attorney, and a vocational expert appeared at the hearing. At the hearing, Plaintiff testified that her body is in constant and unrelenting pain, mostly concentrated in her joints, particularly her knees, arms, and shoulders. (Tr. 70.) Plaintiff further testified regarding her right knee and shoulder replacement surgeries and her intent to get a left knee replacement as well; she currently wears a knee brace on her left knee for stabilization. (Id.) Plaintiff described issues with her feet, one of which is suffering from deformities due to arthritis, making walking very difficult. (Id.) Plaintiff had intended to get foot surgery as well, but she testified the procedure was cost-prohibitive. (Id.) Plaintiff also described cramping in her hands and difficulty maintaining balance, which has led to more freuqent falls, leading to an emergency room visit due to cracking her head open on the fireplace. (Tr. 81.)
As to Plaintiff's activities of daily living, she testified that she does laundry, dusts, vacuums, takes care of her pets, unloads the dishwasher, preps meals, cleans up after pets in her backyard, and mows the grass (but needs to take breaks to sit and stand). (Tr. 73-76.) Plaintiff further testified she is able to go shopping for groceries and to Wal-Mart and can walk about 45 minutes in the stores and then needs to come home. (Tr. 75.) Plaintiff stated she can lift up to 20 pounds; can only stand or sit for 10 to 15 minutes at a time; and is able to walk for 30 to 35 minutes or one half of a mile. (Tr. 77-78.)
The ALJ issued an unfavorable decision on April 29, 2022. (Tr. 30-53.) The ALJ found that Plaintiff met the insured status requirements of the SSA and applied the five-step sequential analysis required by SSA regulations. At step one of the analysis, the ALJ found that Plaintiff had not engaged in substantial gainful activity from her amended alleged disability onset date of June 11, 2020, through her date of last insured, September 30, 2021. (Tr. 35.) At step two, the ALJ found Plaintiff has the following severe impairments: osteoarthritis, fibromyalgia, and obesity. (Id.) The ALJ found Plaintiff's hypertension, coronary artery disease, COPD, vitamin D deficiency, high cholesterol, major depressive disorder, and somatic symptom disorder to be non-severe. (Tr. 35-36.) At step three, the ALJ found that these impairments did not meet or medically equal the severity of one of the listed impairments in the applicable Social Security regulations, such that Plaintiff would be considered presumptively disabled. (Tr. 38.)
Before reaching step four of the analysis, the ALJ found Plaintiff retained the residual functional capacity (“RFC”) to perform light work (the ability to lift and carry 20 pounds occasionally and 10 pounds frequently; to stand or walk six out of eight hours a day; and to sit for six out of eight hours a day) with the following additional limitations: she can only occasionally reach overhead with the non-dominant left upper extremity; she can only ooccasionally climb ladders or kneel and crawl; she can frequently climb ramps/stairs, stoop, and crouch; and she must avoid concentrated exposure to extreme cold and to excessive vibration. (Id.) The ALJ did not include any mental limitations in the RFC.
At step four, the ALJ determined that Plaintiff is capable of performing her past relevant work as a salesclerk as it is generally performed in the national economy. (Tr. 45-46.) Additionally, the ALJ found that there are other jobs that exist in significant numbers in the national economy that Plaintiff can perform, such as cashier checker, general merchandise salesperson, and layaway clerk. (Id.) Accordingly, the ALJ determined that Plaintiff was not disabled for purposes of the Act during the relevant period, and therefore not entitled to receive DIB. (Tr. 46.)
Plaintiff requested review of the ALJ's decision, but her request for review was denied by the Appeals Council. (Tr. 1-6.) On December 17, 2022, Plaintiff filed the instant case, seeking review of the administrative determination.
IV. Analysis
Plaintiff raises three points of error in this appeal: (1) the ALJ violated the de minimis standard in finding Plaintiff's mental impairments non-severe; (2) the ALJ violated agency policy by failing to accept and include or reject and explain why she was not including limitations supported by medical evidence of record in the RFC determination; and (3) the ALJ failed to include all established mental limitations she found credible in her RFC determination or to explain why she was omitting those credible limitations. For the reasons set forth below, the undersigned finds that none of these arguments constitute a basis for vacating the Commissioner's decision finding Plaintiff not disabled. The undersigned will therefore recommend affirming the Commissioner's decision.
A. ALJ's Treatment of Mental Limitations at Step Two
Plaintiff contends that the ALJ erred in her evaluation of mental limitations at step two, in finding Plaintiff's major depressive disorder and somatic symptom disorder to be non-severe. At step two, the claimant bears the burden of showing that she has a severe impairment or combination of impairments that significantly limit the physical or mental ability to do basic work activities. The step-two requirement is generally considered to be a de minimis standard; “an impairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) (internal quotation and citation omitted); see also Jeansonne v. Saul, 855 Fed. App'x 193, 196 (5th Cir. 2021). Plaintiff argues the ALJ applied the incorrect standard.
This Court is instructed to “assume that the ALJ and the Appeals Council have applied an incorrect standard to the severity requirement unless the correct standard is set forth by reference to [our caselaw] or another [authority] of the same effect.” Stone, 752 F.2d at 1106. Here, the ALJ referenced the definition of a severe medical impairment as set forth by Social Security Ruling (“SSR”) 85-28 (Titles II & XVI: Med. Impairments That Are Not Severe, SSR 85-28, 1985 WL 56856 (S.S.A. 1985)). (Tr. 35.) The Fifth Circuit has held that SSR 85-28 comports with its case law and is an acceptable reference for the proper standard at step two. Keel v. Saul, 986 F.3d 551, 556 (5th Cir. 2021). Thus, this Court does not assume that the ALJ applied an incorrect standard for the step two severity requirement. Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000). Nor has Plaintiff demonstrated the application of the incorrect standard.
In her discussion of Plaintiff's mental limitations at step two, the ALJ made specific findings in concluding that Plaintiff's major depressive disorder and somatic symptom disorder do not constitute a severe impairments. The ALJ found that Plaintiff never saw a mental health professional and had never been hospitalized for psychiatric symptoms during the relevant period and up to the date of last insured. (Tr. 36, 549.) The ALJ also noted that the medical records establish that her depressive disorder is mild, stable, and controlled with medication management. (Tr. 36, 532, 677, 686.) The ALJ further found it significant that Plaintiff denied symptoms of depression in visits with her primary care provider and exhibited a normal mental status examination at the consultative examination aside from presenting with an anxious mood. (Tr. 36, 549-52, 592.) Finally, the ALJ noted that Plaintiff's increased anxiety improved quickly when she switched her medication regimen from Lexapro to a low dose of Zoloft. (Tr. 36, 692.) As to the somatic symptom disorder, the ALJ recognized that this was a diagnosis made only by the consultative examiner, who also explained that Plaintiff's symptoms of depression, anxiety, and insomnia were directly related to her neurological symptoms from her fibromyalgia, which the ALJ found to be a severe impairment. (Tr. 36, 551.) The ALJ considered both the physical and mental limitations stemming from the fibromyalgia elsewhere in the opinion. (Tr. 36.)
Additionally, in evaluating the severity of Plaintiff's mental impairments, the ALJ performed the psychiatric review technique (“PRT”) and found Plaintiff to have mild limitations in all four functional areas. (Tr. 36-37.) The four functional areas generally utilized for evaluating mental impairments at all levels of the administrative review process are: (1) understand, remember, or apply information; (2) interact with others; (3) concentrate, persist, or maintain pace; and (4) adapt or manage oneself. 20 C.F.R. § 404.1520a(c)(3). The ALJ considered Plaintiff's own testimony that she can prepare meals, pay bills, handle her accounts, shop, use a computer for multiple functions, handle her own medical care, and drive; is able to get along with others; and presented to her consultative examination with appropriate dress, friendly facial expressions, appropriate responsiveness, and no unusual mannerisms, and exhibited intact concentration and coherent thought processes. (Tr. 37.)
Based on the foregoing, the ALJ clearly articulated a basis for her finding of Plaintiff's mental impairments as non-severe. There is no indication that the ALJ applied the incorrect legal standard or held Plaintiff to a higher burden than the de minimis standard governing step two. Moreover, substantial evidence supports the ALJ's ultimate conclusion that Plaintiff failed to carry her burden at step two to establish that her mental disorders constitute severe impairments that interfere with her ability to work. The ALJ did not commit reversible error at step two.
B. The ALJ's Treatment of Medical Opinion Evidence on Mental Limitations
Plaintiff contends that the ALJ violated agency policy by failing to accept and include or reject and explain why she was not including mental limitations in the RFC determination, where the limitations were found by medical sources the ALJ deemed persuasive or at least partly persuasive. The undersigned concludes that the ALJ did not commit any reversible error in her treatment of the mental opinion evidence.
20 C.F.R. § 404.1520c addresses how the Commissioner is to consider and evaluate medical opinions and prior administrative medical filings in evaluating a claimant's residual functional capacity. Under this regulation, the Commissioner is to consider all medical opinions and prior administrative medical findings using the same specific factors outlined in the rule, the most important of which are supportability and consistency. 20 C.F.R. § 404.1520c(b)(2). The Commissioner must articulate how persuasive she finds each of the opinions in the record and explain her conclusions with regard to the supportability and consistency factors. Id. Plaintiff argues the ALJ erred in failing to explain her reasons for not including mental limitations found by Dr. Chen, the state agency non-examining psychological consultant at the initial level, and Dr. Harris, the consultative examining psychologist. The undersigned disagrees.
Dr. Chen, like the ALJ, found Plaintiff to have mild limitations in all four functional areas of the PRT at step two. (Tr. 44, 101). The ALJ stated in her opinion that she found Dr. Chen's opinion persuasive “because it is consistent with the objective evidence, conservative treatment, and claimant's self-report of mental abilities and activities.” (Tr. 44.) Plaintiff argues that the ALJ erred by agreeing with these step-two findings but not including any limitations in the areas of mental functioning in the RFC. Yet, the findings at step two are not an RFC assessment. The RFC assessment “is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities.” Jeansonne, 855 Fed. App'x at 198 (internal quotation and citation omitted) (emphasis in original). Plaintiff has not identified any procedural error in the ALJ's evaluation of Dr. Chen's opinion and decision to credit and adopt Dr. Chen's step two findings. Plaintiff's argument that the ALJ's endorsement of Dr. Chen's step two findings of mild limitations in all four functional areas of the PRT required the inclusion of some form of mental limitations in the RFC is a different argument, which is addressed in Section C infra.
As to Dr. Harris's opinion, the ALJ found this opinion partially persuasive. (Tr. 44.) The ALJ specified the part of the opinion she found persuasive and chose to credit-the finding that Plaintiff could perform simple and sometimes complex multistep tasks and maintain effective social interactions. (Id.) The ALJ then identified the part of the opinion she found nonpersuasive-Dr. Harris's opinion that Plaintiff could not sustain concentration, persistence, and pace and had a general inability to deal with common work pressures. (Id.) The ALJ also explained her reasons for rejecting this part of Dr. Harris's opinion-that these opinions seemed based solely on Plaintiff's subjective report and were not grounded in objective clinical observations, and as to concentration, were only supported by exam findings to a mild degree. (Id.) The ALJ abided by the governing regulations and articulated the reasons she found parts of Dr. Harris's opinion to be unsupported by and inconsistent with the record. Plaintiff has not identified any procedural error with respect to the treatment of Dr. Harris's opinion.
The undersigned also rejects Plaintiff's argument that the ALJ could not credit part of Dr. Harris's opinion yet simultaneously find other medical opinions, those of Dr. Mosbacker and Dr. Fiore, unpersuasive. Dr. Harris's opinion that Plaintiff could perform simple and sometimes complex multistep tasks and maintain effective social interactions (the part of the opinion deemed persuasive by the ALJ) is distinct from the opinions of Dr. Mosbacker and Dr. Fiore. Dr. Mosbacker, Plaintiff's treating rheumatologist, completed a medical opinion questionnaire regarding Plaintiff's fibromyalgia and found that Plaintiff was seriously limited in her ability to carry out short and simple instructions and had no useful ability to understand, remember, and carry out detailed instructions. (Tr. 570-72.) The ALJ concluded that these opinions-as well as Dr. Mosbacker's overall opinion that Plaintiff lacked the ability to complete a normal workday without interruptions from psychologically based symptoms-were “grossly inconsistent with the treatment records, where Plaintiff never received mental health treatment or had any inpatient hospitalizations during the relevant period.” (Tr. 42.) The opinion of Dr. Fiore, the state agency non-examining psychological consultant at the reconsideration level, also differs from the opinion of Dr. Harris in several regards. Dr. Fiore found Plaintiff to have severe mental impairments and to be unable to carry out complex instructions, whereas the ALJ concluded Plaintiff could sometimes perform complex tasks. (Tr. 117, 125.) There is no reversible error based on the ALJ's assessment of these differing opinions, even if the opinions overlap in some respects.
C. The ALJ's Decision Not to Include any Mental Limitations in the RFC
The final issue on appeal concerns the ALJ's decision to not include any mental limitations in the RFC, despite finding mild limitations in all four functional areas of the PRT at step two. Because the ALJ's opinion makes clear that she did consider all of Plaintiff's mental limitations, including those that are non-severe, she did not commit reversible error in choosing not to incorporate mental limitations in the RFC.
In evaluating a claimant's RFC, the ALJ must consider the limiting effects of all impairments, even those that are not severe. 20 C.F.R. §§ 404.1545(e), 416.945(e); see also Titles II & XVI: Med. Impairments That Are Not Severe, SSR 96-8P, 1996 WL 374184, at *5 (S.S.A. 1985). This is because even non-severe limitations may combine with other severe impairments to prevent an individual from doing past relevant work or narrow the range of work that the individual can perform. Id. According to Plaintiff, the ALJ erred by failing to explain why she concluded that, despite mild limitations in all four functional areas, Plaintiff has no mental limitations in her RFC.
In support of this argument, Plaintiff cites an opinion from this district in which the Court recently vacated a finding of non-disability due to the ALJ's failure to adequately explain his reasons for not including any mental limitations in the RFC, despite mild findings at step two in the PRT. See Castillo v. Kijakazi, 599 F.Supp.3d 483, 490 (W.D. Tex. 2022). In Castillo, however, the ALJ's discussion of the evidence of mental impairments was comprised of only four brief sentences summarily concluding the claimant had normal mental status examinations and can generally perform activities of daily living.
In this case, the ALJ engaged in a thorough discussion of Plaintiff's mental limitations and the medical evidence. She rejected the opinions of Dr. Mosbacker regarding Plaintiff's mental condition-essentially that Plaintiff could not complete a normal workday or workweek without disruptions from psychologically based symptoms-because the treatment records and mental status examinations did not confirm any psychiatric hospitalizations or mental health treatment, as well as documented Plaintiff's stability on her medical regimen. (Tr. 42.) The ALJ also found Dr. Harris's opinion only partially persuasive, as previously noted, rejecting the part of his opinion regarding Plaintiff's difficulties sustaining concentration, persistence, and pace, finding that these conclusions were based solely on Plaintiff's subjective report and not the objective medical evidence by any more than a mild degree. (Tr. 43.) Finally, the ALJ reemphasized her conclusion that Plaintiff has no more than mild or minimal limited mental functional abilities in the four functional areas of the PRT, consistent with the findings of Dr. Chen, and rejected in part the opinion of the SAPC at the reconsideration level, Stacey Fiore, who found moderate rather than mild limitations in the area of concentration, persistence, and pace. (Tr. 44.)
The ALJ does not commit legal error by declining to include mental limitations in a claimant's RFC, so long as the ALJ considered the limiting effects and restrictions of all impairments in the RFC analysis, even those that are non-severe. See Goins v. Comm'r, Soc. Sec. Admin., No. 4:22-CV-870-P, 2023 WL 4475633, at *6 (N.D. Tex. June 16, 2023), report and recommendation adopted, No. 4:22-CV-0870-P, 2023 WL 4485941 (N.D. Tex. July 11, 2023) (“The ALJ, after continuing to consider Goins non-severe mental impairments of depression and anxiety throughout his decision, ultimately decided not to include any mental limitations in the RFC determination, finding that the medical evidence in the record indicated that such limitations were not needed.”); Boller v. Comm'r, SSA, No. 421CV01001SDJCAN, 2022 WL 18586837, at *10 (E.D. Tex. Dec. 12, 2022), report and recommendation adopted, No. 4:21-CV-1001-SDJ, 2023 WL 1765909 (E.D. Tex. Feb. 3, 2023) (“Thus, unlike in Castillo, where the ALJ singularly relied on the non-severity finding in his RFC assessment, the same did not occur here where the ALJ relies on other medical evidence and dedicated multiple paragraphs in explaining his rationale.”); Gonzales v. Colvin, No. 3:15-CV-0685-D, 2016 WL 107843, at *6-7 (N.D. Tex. Jan. 11, 2016) (affirming lack of mental limitations in RFC because ALJ considered medical records, examinations, and sufficiently considered mental impairments in calculating RFC). Here, the ALJ discussed the medical evidence and specifically referenced the PRT findings-the evidence pertaining to Plaintiff's non-severe mental limitations-in fashioning the RFC. Moreover, substantial evidence supports the ultimate conclusion not to include mental limitations in the RFC. This case is therefore not analogous to Castillo and does not require remand.
V. Conclusion
Based on the foregoing, the undersigned concludes that the that the Commissioner did not commit any reversible legal error in the underlying administrative proceedings, and the Commissioner's decision that Plaintiff is not disabled is supported by substantial evidence. Accordingly, the undersigned recommends that the Commissioner's decision be AFFIRMED.
VI. Instructions for Service and Notice of Right to Object/Appeal.
The United States District Clerk shall serve a copy of this report and recommendation on all parties by either (1) electronic transmittal to all parties represented by attorneys registered as a “filing user” with the clerk of court, or (2) by mailing a copy to those not registered by certified mail, return receipt requested. Written objections to this report and recommendation must be filed within fourteen (14) days after being served with a copy of same, unless this time period is modified by the district court. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b). Objections are limited to no more than 20 pages unless leave of court is granted. The party shall file the objections with the Clerk of Court and serve the objections on all other parties. A party filing objections must specifically identify those findings, conclusions or recommendations to which objections are being made and the basis for such objections; the district court need not consider frivolous, conclusive or general objections. A party's failure to file written objections to the proposed findings, conclusions and recommendations contained in this report shall bar the party from a de novo determination by the district court. Thomas v. Arn, 474 U.S. 140, 149-52 (1985); Acuna v. Brown & Root, Inc., 200 F.3d 335, 340 (5th Cir. 2000). Additionally, failure to file timely written objections to the proposed findings, conclusions and recommendations contained in this report and recommendation shall bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the un-objected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).