*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this opinion should not be published and is not precedent except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. 96-60574

_____________________

ANNIE B. WHITE,

Plaintiff-Appellant,

versus

JOHN J. CALLAHAN, Acting

Commissioner of Social Security,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Southern District of Mississippi

(3:95-CV 739-WS)

_________________________________________________________________

September 12, 1997

Before JOLLY, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Annie White appeals from the district court’s order adopting

the magistrate judge’s report and recommendation and upholding the

Commissioner’s denial of Social Security disability benefits. We

hold that the record, as a whole, contains substantial evidence

supporting the findings of the administrative law judge (the
2

“ALJ”), and that the ALJ applied the proper legal standards.

Accordingly, we affirm.
1At the administrative hearing, White amended her onset date

to July 1991.

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I

Annie White sought Disability Insurance Benefits and

Supplemental Security Income under the Social Security Act in

November 1991, initially alleging that she had not worked since

1988.1 After conducting an administrative hearing, the ALJ denied

White’s claim on January 27, 1995. The ALJ found that White’s

subjective complaints of pain were not credible and that she could

perform her past relevant work, thus, rendering her outside the

statutory definition of “disabled.” The Appeals Council denied

White’s request for review and she later filed suit in district

court seeking judicial review of the Commissioner’s final decision

pursuant to 42 U.S.C. § 405(g). The magistrate judge, in his

report and recommendation filed June 10, 1996, recommended that the

district court affirm the Commissioner’s decision. The district

court did so on June 28, 1996. This appeal followed.

II

On appeal, White argues that the ALJ erred by finding that she

could perform her past work and by discounting her testimony

concerning her subjective pain. White further maintains that the

ALJ violated this circuit’s case law by basing findings of fact

upon personal observations of White. Finally, White argues that
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the ALJ’s findings are contrary to the vocational expert’s

testimony.

III

Our review of the Commissioner’s decision is limited in scope

to determining whether substantial evidence supports the decision

and whether the correct legal standards were applied. Ripley v.

Chater, 67 F.3d 552, 555 (5th Cir. 1995). “Substantial evidence is

such relevant evidence as a reasonable mind might accept to support

a conclusion. It is more than a mere scintilla and less than a

preponderance.” Id. (citing Greenspan v. Shalala, 38 F.3d 232, 236

(5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1984, 131

L.Ed.2d 871 (1995); Richardson v. Perales, 402 U.S. 389, 401, 91

S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). The Commissioner’s

factual findings which are supported by substantial evidence are

deemed conclusive. 42 U.S.C. § 402(g). This court may not retry

the issue of disability de novo, nor may we reweigh the evidence or

substitute our judgment for that of the Commissioner. Id.; Ripley,

67 F.3d at 555.

The Commissioner engages in a five-step inquiry when

determining questions of disability:

(1) whether the claimant is presently engaging in

substantial gainful activity;

(2) whether the claimant has a severe impairment;
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(3) whether the impairment is listed, or equivalent to

an impairment listed in appendix 1 of the regulation;

(4) whether the impairment prevents the claimant from

doing past relevant work; and

(5) whether the impairment prevents the claimant from

performing any other substantial gainful activity.

Leggett v. Chater, 67 F.3d 558, 564 n.2 (5th Cir. 1995); 20 C.F.R.

§§ 404.1520, 416.920. White met her burden with respect to the

first enumerated factors, but failed to adequately demonstrate to

the ALJ that she could no longer engage in her past relevant work.

The ALJ partly based his decision in this matter on his finding

that White’s subjective complaints of pain were not credible.

An ALJ may discount subjective complaints of pain only after

weighing “the objective medical evidence and assigning articulated

reasons for discrediting” the complaints. Anderson v. Sullivan,

887 F.2d 630, 633 (5th Cir. 1989). To prove a pain-induced

disability, a claimant must demonstrate a “medically determinable

impairment that is capable of producing disabling pain.” Ripley,

67 F.3d at 556; 20 C.F.R. § 404.1529. Once the claimant

establishes such an impairment, the ALJ must consider the

subjective complaints of pain, along with the medical evidence in

determining the individual’s working ability. Ripley, 67 F.3d at

556; 20 C.F.R. § 404.1529. Standing alone, pain is not considered

a disability unless it is “constant, unremitting, and wholly

unresponsive to therapeutic treatment.” Selders v. Sullivan, 914

F.2d 614, 618-19 (5th Cir. 1990).
2White also argues that the ALJ erred by basing findings of

fact and credibility determinations upon personal observations of

White--the so-called “sit and squirm” index. The Fifth Circuit has

held, however, that it is not reversible error for an ALJ to

consider demeanor as one of several factors in evaluating a

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IV

The ALJ articulated in his opinion specific reasons for

refusing to grant credence to White’s subjective complaints of

pain:

Considering the claimant’s residual functional capacity

and reaching a decision herein, the Administrative Law

Judge has evaluated the claimant’s subjective complaints

under Social Security ruling 88-13. While the claimant

alleges shortness of breath and does have a history of

asthma, she is not taking medications for asthma. She

did not allege that dust, fumes, gasses or other

pulmonary irritants make her short of breath. Although

she alleges pain and limited motion, she is not taking

strong pain medications and x-rays do not show evidence

of arthritic limitation. Although she alleges a heart

problem, EKG’s have been interpreted at normal. The

Administrative Law Judge has considered the location,

intensity, duration and frequency of the subjective

complaints, the amount of medication that the claimant

takes, the amount of medical treatment that she has,

treatment other than medication, her daily activities,

and the absence of side effects from medication which the

claimant specifically acknowledged. After a complete and

thorough evaluation, it is found that the claimant’s

subjective complaints are not credible.

ALJ op. at 5; R. at 16. With these specific factual findings,

along with the vocational expert’s testimony that White could

return to her past relevant work, we hold that substantial evidence

supports the Commissioner’s decision to deny White her claim for

benefits.2 Should White develop more serious limitations, she is
claimant’s credibility. Villa v. Sullivan, 895 F.2d 1019, 1024

(5th Cir. 1990). Furthermore, there is no evidence before the

court that the ALJ discounted White’s subjective complaints of pain

due to her demeanor before him in the hearing. This argument is

without merit.

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not barred by this opinion from filing a successive claim for

disability benefits. 

For the foregoing reasons, we AFFIRM the district court’s

decision.

A F F I R M E D.