* 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.

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-50628

Summary Calendar

DOMINIQUE HOELCK,

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 

1:06-CV-526

Before WIENER, GARZA, and BENAVIDES, Circuit Judges.

PER CURIAM:*

The plaintiff-appellant, Dominique Hoelck, appeals the district court’s

order affirming the decision of the Commissioner of the Social Security

Administration (“Commissioner”) that the plaintiff was not disabled within the

meaning of the Social Security Act and thus not entitled to either Disability

Insurance Benefits (“DIB”), 42 U.S.C. § 423, or Supplemental Security Income

(“SSI”), 42 U.S.C. § 1382c(a)(3). We AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

January 7, 2008

Charles R. Fulbruge III

Clerk
No. 07-50628

2

Alleging that she could no longer work after February 6, 2003 due to

clinical depression, the plaintiff applied for DIB and SSI benefits. Apart from

depression, the plaintiff suffered other physical and mental ailments that

allegedly contributed to her disability, including, for example, osteoporosis,

fibromyalgia, bipolar disorder, and anxiety disorder. Her application was

denied. The plaintiff requested and was granted a hearing on her claim for

benefits. After hearing testimony from the plaintiff, a medical expert, and a

vocational expert and receiving and reviewing additional evidence documenting

the plaintiff’s various conditions, an administrative law judge (“ALJ”) for the

Social Security Administration (“SSA”) determined that the plaintiff was not

entitled to benefits. The ALJ concluded that the plaintiff’s conditions, while

severe, were not disabling and that the plaintiff retained the capacity for work

that exists in significant numbers in the national economy. The Appeals Council

for the SSA denied the plaintiff’s request for review. As a result, the ALJ’s

decision became the final decision of the Commissioner. The plaintiff then

sought review of that decision in the district court pursuant to 42 U.S.C.

§§ 405(g) and 1383(c)(3). The district court affirmed the Commissioner’s

decision, and the plaintiff now appeals. 

On appeal, the plaintiff raises four arguments. First, the plaintiff argues

that the ALJ did not properly consider the plaintiff’s physical and mental

impairments. Second, the plaintiff argues that the ALJ did not properly

consider the opinion of her treating physician. Third, the plaintiff argues that

the ALJ erred in assessing the plaintiff’s credibility with respect to her

subjective complaints. Fourth, the plaintiff argues that the ALJ’s finding that

the plaintiff could perform the light work jobs identified by the vocational expert

was not supported by substantial evidence. These arguments are without merit.

Our review of the final decision of the Commissioner is limited to two

inquiries: “(1) whether the Commissioner applied the proper legal standard; and
No. 07-50628

1 GAF is an acronym for Global Assessment of Functioning. “GAF is a standard

measurement of an individual’s overall functioning level ‘with respect only to psychological,

social, and occupational functioning.” Boyd v. Apfel, 239 F.3d 698, 700 n.2 (5th Cir. 2001)

(quoting AMERICAN PSYCHIATRIC ASS’N DIAGNOSTIC AND STATISTICAL MANUAL at 32 (4th ed.

1994)).

3

(2) whether the Commissioner’s decision is supported by substantial evidence.”

Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002); Brock v. Chater, 84 F.3d

726, 728 (5th Cir. 1996). We may neither reweigh the evidence nor substitute

our judgment for that of the Commissioner. Audler v. Astrue, 501 F.3d 446, 447

(5th Cir. 2007); Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990).

First, the Commissioner properly considered the plaintiff’s physical and

mental impairments. Hoelck argues that the ALJ did not give any explanation

for the conclusions he reached regarding her residual functional capacity

(“RFC”). This is incorrect; the ALJ offered a thorough explanation for his RFC

finding, which adequately discussed and mentioned Hoelck’s various alleged

physical and mental impairments and which was supported by substantial

evidence. 

Hoelck also accuses the ALJ of impermissibly picking and choosing only

that evidence supporting the ALJ’s finding. Specifically, Hoelck complains that

the ALJ considered only her higher GAF scores, ignoring the lowest of three

GAF scores in the record and the one most suggestive of disability.1 While the

ALJ did not expressly mention the lowest GAF score, the ALJ noted the medical

visit in which the plaintiff received that score, suggesting that the ALJ did in

fact consider it. Moreover, as the district court correctly noted, this lowest GAF

score was assessed by a non-physician at the initiation of treatment and, as

such, did not come from an acceptable medical source. See 20 C.F.R.

§§ 404.1513, 416.913(a). We find no error in the ALJ’s failure to expressly

mention the lowest GAF score, which the ALJ could have permissibly concluded

was entitled to less weight. See Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir.
No. 07-50628

4

1991) (“It was within the discretion ofthe ALJ to determine the credibility of the

various medical reports in the record . . . .”).

Hoelck also complains about the ALJ’s reliance on the highest GAF score,

arguing that it was produced by a non-examining physician. Her contention is

not supported by the record. As the record shows, the physician that assessed

that score was in fact an examining physician. In sum, we conclude that the

Commissioner properly considered the plaintiff’s physical and mental

impairments.

Second, the ALJ properly considered the opinion of Hoelck’s treating

physician. Contrary to Hoelck’s assertion, the ALJ did not reject the opinion of

Hoelck’s treating physician. Rather, the record reflects that the ALJ properly

considered the opinion of Hoelck’s treating physician in addition to the opinion

of another examining physician. Also, Hoelck argues that the ALJ failed to

consider evidence of her poor concentration and fatigue. However, there is no

indication that the ALJ failed to consider these symptoms in reaching the

broader conclusion that the plaintiff suffered from depression, bipolar disorder,

and anxiety disorder. To the extent that the ALJ failed to consider the plaintiff’s

allegations of poor concentration and fatigue, a point which we doubt, the

plaintiff has failed to demonstrate any prejudice based on such failure. See

Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996) (“We will not reverse the

decision of the ALJ for lack of substantial evidence where the claimant makes

no showing that he was prejudiced in any way by the deficiencies he alleges.”).

Even crediting the plaintiff’s allegations of poor concentration and fatigue, the

ALJ’s decision was based on substantial evidence.

Third, the ALJ did not err in assessing the plaintiff’s credibility with

respect to her subjective complaints. The ALJ properly considered the record as

a whole, including the available medical evidence and the nature and extent of

the plaintiff’s daily activities, in determining that the plaintiff’s subjective
No. 07-50628

2 Hoelck points outthatthe ALJ mistakenly described Hoelckas attending church three

times a week when in fact Hoelck reported going to church only once per week. Hoelck,

however, was not prejudiced by this minor mistake. Despite this mistake, the ALJ’s decision

is supported by substantial evidence. 

5

complaints were not fully credible. See Hollis v. Bowen, 837 F.2d 1378, 1384–85

(5th Cir. 1998) (explaining that the lack of objective factors supporting subjective

allegations of pain were properly considered in determining credibility); see also

Leggett v. Chater, 67 F.3d 558, 565 (5th Cir. 1995) (considering a plaintiff’s daily

activities as support for the ALJ’s findings that the plaintiff was capable of

performing past relevant work). The ALJ’s credibility findings with respect to

the plaintiff’s subjective complaints are supported by substantial evidence.2

Fourth and finally, the ALJ’s finding that the plaintiff could perform the

light work jobs identified by the vocational expert was supported by substantial

evidence. The ALJ described three jobs that Hoelck was capable of performing:

officer order caller, final assembler, and production line worker. Hoelck points

out that the last two jobs described by the ALJ were never identified by the

vocational expert. As such, Hoelck argues that the ALJ’s finding that Hoelck

could perform these other lightjobs, not mentioned by the vocational expert, was

not supported by substantial evidence. Any error in this regard was harmless

because the ALJ correctly identified, at the very least, one job that Hoelck could

perform. See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (applying the

harmless error doctrine in the disability benefits context). The plaintiff did not

satisfy her burden of rebutting the ALJ’s finding that she could perform the job

of order caller, of which there are a significant number of jobs in the national

economy. See Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999) (explaining

that once the Commissioner establishes that a claimantis capable of performing
No. 07-50628

3 Hoelck argues that she could not perform the jobs identified by the vocational expert

because she would inevitably miss more than two days of work per month and the vocational

expert testified that the customary tolerance for absences in those jobs was no more than two

days per month. The ALJ’s did not expressly address this point. Nonetheless, we cannot say

the ALJ erred. Hoelck’s own treating physician testified that she could maintain appropriate

behavior with psychiatric consultation. Based on the record as a whole, the ALJ’s conclusions

regarding plaintiff’s disability are supported by substantial evidence. 

6

other gainful employment, the claimant must prove that the claimant cannot in

fact perform the alternate work).3

The Commissioner’s decision is supported by substantial evidence.

Finding no reversible error, we AFFIRM.