* 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. 07-51160

Summary Calendar

ANTONIO HERNANDEZ,

Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Texas

USDC No. 1:06-CV-416

Before SMITH, BARKSDALE, and ELROD, Circuit Judges.

PER CURIAM:*

The Commissioner of Social Security (“Commissioner”) denied Antonio

Hernandez disability benefits under Title II of the Social Security Act, 42 U.S.C.

§ 423, and Hernandez challenged the denial in district court. The court affirmed

the Commissioner’s decision, a decision that Hernandez appeals. We affirm.

United States Court of Appeals

Fifth Circuit

F I L E D

May 13, 2008

Charles R. Fulbruge III

Clerk
No. 07-51160

2

I. Factual and Procedural History

Hernandez is a forty-year-old, Hispanic male with limited English

communication skills: he can speak, read, and write some English but has

trouble understanding English speakers who speak too quickly. In June 1995,

he sustained a back injury performing his dry-walling job, obtained care through

a workers’ compensation claim, and received orders from his treating physicians

to refrain from work. In early 1996, however, he received clearance to return to

work with some lifting restrictions.

Hernandez’s condition deteriorated, and in June 1997 he was diagnosed

with degenerative disc disease and underwent back surgery. Thereafter, he

received several post-surgery evaluations from the Texas Workforce Commission

(“TWC”). In January 1998, he was found to have a 12% total body impairment

rating, which increased to 17% in April 1998. In May 1999, however, TWC found

that he had only a 7% impairment rating. 

No record exists of Hernandez receiving further treatment for his ailment

until 2004, when Dr. Elena Arizmendez examined him in a referral by the Texas

Rehabilitation Commission. Hernandez also obtained a second opinion during

that year from his former physician, Dr. Albert Molnar. The lack of consistent

treatment to that point was allegedly because Hernandez was unaware that he

could continue treatmentthrough workers’ compensation and sought treatment

in Mexico instead.

On April 5, 2004, Hernandez applied for disability benefits due to back

pain and leg weakness. After the Commissioner denied the application initially

and on reconsideration, an administrative law judge (“ALJ”) held a hearing on

December 14, 2005, pursuant to Hernandez’s request. The ALJ found from

Hernandez’s testimony and the medical evidence that Hernandez’s degenerative

disc disease, chronic pain syndrome, and failed back syndrome are “severe”

impairments as defined by 20 C.F.R. § 404.1520(c), but that Hernandez retains

the residual functional capacity to lift ten pounds occasionally and less than ten
No. 07-51160

3

pounds frequently, to stand or walk (not more than one city block) two hours in

an eight-hour workday at one-hour intervals, and to sit six hours in an eighthour workday at one-hour intervals with the option to stand and stretch at his

workstation. In addition, the ALJ found that although Hernandez is “unable to

communicate in English” within the meaning of 20 C.F.R. § 404.1564, he is “able

to read, write, and understand simple English instructions.” 

A vocational expert testified that an individual with Hernandez’s

particular restrictions would be able to perform a significant range of sedentary

work as well as some jobs classified as light work under 20 C.F.R. § 404.1567.

Nevertheless, the ALJ told the vocational expert to identify only sedentary jobs

available to Hernandez. The vocational expert testified that Hernandez would

be able to perform several different jobs, including those of bench assembler,

escort driver, surveillance monitor, addresser, and cutter and paster. 

The ALJ specifically inquired as to whether Hernandez’s English skills

would be sufficient for each of the jobs suggested by the vocational expert. The

ALJ rejected the vocational expert’s opinion that Hernandez could perform the

job of cutter and paster on grounds that it required more English reading

proficiency than Hernandez possessed. The ALJ further rejected the possibility

of escort driver because it might require Hernandez to sit without a break for

more than an hour at a time. The ALJ found, however, that Hernandez would

be capable of performing the job of bench assembler, addresser, or surveillance

monitor, and that each ofthese jobs exists in significant numbers in the national

economy. As a result, the ALJ found that Hernandez is not disabled under 20

C.F.R. § 404.1520(g) and is not entitled to disability benefits.

Thereafter, on June 8, 2006, Hernandez filed his complaint with the

district court seeking review of the final decision pursuant to 42 U.S.C. § 405(g).

A magistrate judge recommended that the decision be affirmed, and the district

court adopted the recommendation on September 17, 2007. Hernandez appeals.
No. 07-51160

1The steps include:(1)whether the claimantis presently performing substantial gainful

activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets

or equals a listed impairment; (4) whether the impairment prevents the claimant from doing

4

II. Standard of Review

Our review of the Commissioner’s decision is limited under 42 U.S.C. §

405(g) to two inquiries: (1) whether substantial evidence supports the decision;

and (2) whether the decision comports with relevantlegal standards. Greenspan

v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). If substantial evidence supports the

Commissioner’s decision, the findings are conclusive and the decision must be

affirmed. Richardson v. Perales, 402 U.S. 389, 401 (1971). “Substantial evidence

is that which is relevant and sufficient for a reasonable mind to accept as

adequate to support a conclusion; it must be more than a scintilla, but it need

not be a preponderance.” Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992);

see also Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994). It is the role of the

Commissioner, and not the courts, to resolve conflicts in the evidence. Brown v.

Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (citation omitted). As a result, this court

“cannot reweigh the evidence, but may only scrutinize the record to determine

whether it contains substantial evidence to support the Commissioner’s

decision.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). A finding of no

substantial evidence is warranted only “where there is a conspicuous absence of

credible choices or no contrary medical evidence.” Johnson v. Bowen, 864 F.2d

340, 343–44 (5th Cir. 1988) (internal quotation marks and citation omitted).

III. Burden of Proof

A claimant is “disabled” as defined in the Social Security Act if he is

unable “to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in

death or which has lasted or can be expected to last for a continuous period of

not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Commissioner uses a

sequential, five-step approach to determine whether a claimant is so disabled.1
No. 07-51160

past relevant work; and (5) whether the impairment prevents the claimant from performing

any other substantial gainful activity. 20 C.F.R. §§ 404.1520(a), 416.920(a).

5

Hernandez carried the burden of proof under the first four parts of the inquiry.

Leggett, 67 F.3d at 564. The burden of proof then shifted to the Commissioner

at the fifth step to establish the existence of other available substantial gainful

employment that Hernandez could perform. Fraga v. Bowen, 810 F.2d 1296,

1301–02 (5th Cir. 1987). Once the Commissioner identified suitable alternative

employment, the burden of proof shifted back to Hernandez to prove that he

could not perform the alternative work identified. Id. at 1302. Throughout the

process, however, the ultimate burden of establishing disability remained with

Hernandez. Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983).

IV. Discussion

Hernandez alleges three points of error in the district court’s

determination that substantial evidence supports the final administrative

decision that he was not disabled within the meaning of the Social Security Act:

first, the Commissioner failed to properly evaluate the physician opinions of

record in assessing Hernandez’s residual functional capacity; second, the

Commissioner’s finding that Hernandez is able to perform other work existing

in significant numbers in the national economy lacks substantial evidence; and

third, the Commissioner failed to properly assess Hernandez’s credibility.

A. Physician Opinions of Record

Hernandez argues that the Commissioner failed to properly consider the

treating and examining physicians’ opinions in determining his residual

functional capacity. As an initial matter, he contends that the Commissioner

erred in finding that “the medical record provides little or no evidence as to the

claimant’s treatment for his impairments from 1999 forward” in light of Dr.

Molnar’s 2004 report, which explains that Hernandez sought treatment in

Mexico during the interim because he was unaware that he could obtain further
No. 07-51160

2 Hernandez also points to a pre-surgery 1997 report of his treating physician, Dr.

GeorgeTipton, whereinDr.Tiptonstates that he discussed Hernandez’s upcoming surgery and

told him that “the more sedentary his occupation the more likely it would be to have long-term

relief of symptoms.” This opinion, however, directly supports the residual functional capacity

finding for a significant range of sedentary work.

6

workers’ compensation treatment in the United States. As the district court

noted, however, Dr. Molnar’s report indicates that the only record of this

treatment in Mexico is a physician’s letter given to him by Hernandez, which is

not included in the record. In addition, the district court correctly observed that

even considering Dr. Molnar’s report and Hernandez’s testimony regarding the

alleged treatment in Mexico, the record is bereft of any specific facts regarding

any medical treatment or diagnosis between Hernandez’s last treatment by Dr.

Molnar in October 1998 and the end of his insured period in December 2001. As

a result, the Commissioner did not err in finding a lack of reliable evidence of

medical treatment after 1999.

Hernandez further argues thatthe Commissioner erred in discounting Dr.

Molnar’s and Dr. Arizmendez’s opinions in their 2004 reports regarding the

extent of his disability.2 Dr. Molnar’s opinion is that “it is very reasonable . . .

that [Hernandez’s] pain . . . is due to his old injury and his old surgical

procedure,” and that “[Hernandez] is probably going to have a difficult time

finding employment, either sitting or standing, or bending or twisting. He

simply cannot do these activities.” Dr. Arizmendez’s opinion is that Hernandez

“is unable to lift more than half a gallon of milk and . . . is developing gout in his

hands,” and that “[h]is return to work . . . will likely be confounded by the lifting

restrictions, the need for frequent changes in position . . . and limitations with

activities . . . given his development of gout.”

It is well settled that although the “opinions, diagnoses, and medical

evidence of a treating physician who is familiar with the claimant’s injuries,

treatments, and responses should be accorded considerable weight in

determining disability,” such evidence is not conclusive; rather, the ALJ bears
No. 07-51160

7

“the sole responsibility for determining the claimant’s disability status.”

Greenspan, 38 F.3d at 237 (internal quotation marks and citations omitted). As

this court has explained:

[W]hen good cause is shown, less weight, little weight, or even no

weight may be given to the physician’s testimony. The good cause

exceptions we have recognized include disregarding statements that

are brief and conclusory, not supported by medically acceptable

clinical laboratory diagnostic techniques, or otherwise unsupported

by the evidence. Scott [v. Heckler, 770 F.2d 482, 485 (5th Cir.

1985)]. In sum, the ALJ “is entitled to determine the credibility of

medical experts as well as lay witnesses and weigh their opinions

accordingly.” Id.; see also 20 C.F.R. § 404.1527(c)(2) (“If any of the

evidence in your case record, including any medical opinion(s), is

inconsistent with other evidence or is internally inconsistent, we

will weigh all the other evidence and see whether we can decide

whether you are disabled based on the evidence we have.”).

Greenspan, 38 F.3d at 237; see also 20 C.F.R. § 404.1527(d) (stating that in

weighing medical opinions,the ALJ should consider the examining relationship,

the treatment relationship, supportability, consistency with the record, and

specialization).

Here, as noted by the district court, Dr. Molnar’s and Dr. Arizmendez’s

2004 reports, conducted almost three years after the expiration of Hernandez’s

insured period, are relevant only insofar as they bear on his condition between

1997, the alleged onset date of the disability, and 2001, the date on which his

benefits ended. See Anthony, 954 F.2d at 295 (explaining that to prove

entitlement to disability benefits under Title II, the claimant must prove not

only that he is disabled, but also that he became disabled before the end of the

insured period). In addition, while both Dr. Molnar and Dr. Arizmendez opined

that Hernandez’s physical symptoms would severely restrict his ability to work,

the ALJ was entitled to disregard these conclusory statements and to rely

instead on the more specific medical diagnosis in Dr. Arizmendez’s report that
No. 07-51160

3 The ALJ was also entitled to discount Dr. Molnar’s and Dr. Arizmendez’s opinions

regarding Hernandez’s physical symptoms upon finding that “[t]here are no objective clinical

or laboratory findings to support [Hernandez’s] allegations of ongoing physical limitations.”

4 The Regulations define a “treating” physicianas a physician who has provided medical

treatment or evaluation and “who has, or has had, an ongoing treatment relationship with”

the claimant. 20 C.F.R. § 404.1502. Given that Dr. Molnar examined Hernandez only two

times during the insured period (and only one time thereafter), the record does not reflect that

they had an ongoing treatment relationship.

8

Hernandez suffers from chronic pain syndrome and failed back syndrome.3

Contrary to Hernandez’s argument, moreover,the ALJ did not“reject” Dr.

Arizmendez’s opinion but afforded it “the greatest weight,” incorporating most

of the limitations outlined in her evaluation in his residual functional capacity

finding. Although Dr. Arizmendez limited Hernandez to working only four hours

a day, the ALJ was nonetheless justified in finding that Hernandez had the

capacity to work eight hours a day, particularly in light of Dr. Arizmendez’s

statement elsewhere in her report that he could sit for a total of six to eight

hours a day and of the treatment records closer in time to the insured period.

Also contrary to Hernandez’s argument, as a consultative examiner

instead of a treating physician, Dr. Molnar’s opinion is not accorded the

controlling weight given to treating physicians.4In addition, as the district court

emphasized, the record contains several assessments made by him during

Hernandez’s insured period that note “contradictions between the Claimant’s

efforts and the results of the examinations.” Accordingly, the Commissioner

properly considered the physician opinions of record, incorporated the

limitations he found consistent with the weight of the evidence as a whole, and

made a residual functional capacity finding that is supported by substantial

evidence.

B. Ability to Perform Other Jobs Cited

Hernandez also argues that in finding that he is able to perform other

work available in significant numbers in the national economy, the

Commissioner erred by identifying jobs that are beyond his residual functional
No. 07-51160

5 Hernandez did not challenge or cross-examine any of the vocational expert’s testimony

at the hearing.

9

capacity. He first contends that a conflict exists between the vocational expert’s

testimony regarding sedentary bench assembler positions and the classification

of assembly positions as requiring light or medium exertional activities in the

Dictionary of Occupational Titles (“DOT”). Again, however, as noted by the

district court, where a vocational expert’s “unchallenged testimony” indicates

thatthe claimant can perform the jobs identified,the ALJ is entitled to rely upon

that testimony despite any conflict with the DOT.5 See Carey v. Apfel, 230 F.3d

131, 146–47 (5th Cir. 2000). In any event, the district court is also correct that

Hernandez has failed to introduce evidence that the job of bench assembler

requires lifting over ten pounds or is a skilled position. 

Hernandez further claims that he cannot perform the work of an addresser

or a surveillance monitor as defined in the DOT because he is “illiterate in

English” and such jobs “require fluency in English.” The record reflects,

however, that the ALJ did not find that Hernandez is illiterate; rather,

substantial evidence supports the ALJ’s finding that Hernandez is “able to read,

write, and understand simple English instructions.” Hernandez completed an

initial disability report himself and indicated that he could speak, understand,

read, and write in English. He also testified at the hearing that he could speak

some English but has trouble understanding English speakers who speak too

quickly, and that he was able to understand English speakers who gave simple

instructions when he performed his previous work. In addition, the record

reflects that the ALJ was aware of Hernandez’s limited English skills, was

careful to inquire into the English proficiency required by each job identified by

the vocational expert, and was satisfied that Hernandez could perform the work

decided upon. Accordingly, substantial evidence supports the Commissioner’s

finding that Hernandez possesses the capacity and the English skills to perform

the jobs of bench assembler, addresser, and surveillance monitor.
No. 07-51160

10

C. Hernandez’s Credibility

Finally, Hernandez argues that the Commissioner’s finding that he lacked

credibility was not based on the proper legal standard because the ALJ simply

declared him not credible without supporting justification. This court has held

that although an ALJ “is bound . . . to explain his reasons for rejecting a

claimant’s complaints of pain,” he is not required to “follow formalistic rules in

his articulation.” Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994). 

Here, the ALJ expressly recognized that he must consider “all symptoms,

including pain, and the extent to which these symptoms can reasonably be

accepted as consistent with the objective medical evidence and other evidence

based on requirements of 20 C.F.R. § 404.1529 and SSR 96-7p.” In so doing, he

gave Hernandez “the benefit of the doubt as to his subjective allegations of pain”

but gave the “greatest weight”to Dr. Arizmendez’s opinion. As the district court

explained, Dr. Arizmendez’s report acknowledges that Hernandez has significant

impairment but notes inconsistencies between Hernandez’s subjective account

of his symptoms and her diagnostic observations. As a result, the ALJ did in fact

consider Hernandez’s subjective complaints but ultimately determined that they

were inconsistent with Dr. Arizmendez’s evaluations—and with those of the

“[o]ther treating practitioners [who had] released him to heavier levels of

exertion” for that matter. An ALJ may discount a claimant’s subjective

complaints when the alleged impairments contradict the medical evidence.

Anthony, 954 F.2d at 295; Jones v. Heckler, 702 F.2d 616, 621 n.4 (5th Cir. 1983).

Accordingly, the Commissioner applied the correct legal standard and

substantial evidence supports his finding regarding Hernandez’s credibility.

V. Conclusion

Finding that substantial evidence and relevant legal standards support

the final administrative decision to deny Hernandez’s application for disability

benefits, we AFFIRM.