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. 08-60901

VANESSA M QUALLS

Plaintiff - Appellant

v.

MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY

Defendant - Appellee

Appeal from the United States District Court 

for the Northern District of Mississippi

USDC No. 1:05-CV-242

Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PER CURIAM:*

Vanessa M. Qualls appeals the district court’s decision affirming the

Administrative Law Judge’s determination that she is not disabled and is

therefore ineligible for Social Security disability benefits. For the following

reasons, we affirm.

FACTS AND PROCEEDINGS

A. Procedural History

United States Court of Appeals

Fifth Circuit

F I L E D

August 4, 2009

Charles R. Fulbruge III

Clerk
No. 08-60901

2

Vanessa M. Qualls (“Qualls”) filed an application for disability on July 19,

2001, alleging a disability onset date of December 15, 2000. She represented

that she was no longer able to work due to Sjogren’s Syndrome, headaches,

arthritis, pain in her neck and lower back, and the placement of metal rods in

her femur bones. Five doctors treated Qualls for varying periods of time. Two

others reviewed her case on a consultative basis. This appeal centers around the

different diagnostic assessments of these doctors. 

Qualls’s disability application was denied by the Social Security

Administration’s (“SSA”). She sought reconsideration and her application was

again denied. Subsequently, Qualls applied for review from an Administrative

Law Judge (“ALJ”) who determined that she was not disabled. The Appeals

Council denied her request for review. Qualls then filed suit against the

Commissioner of the SSA (“Commissioner”) in federal court seeking to overturn

the ALJ’s disability determination. Among the twelve points of error raised by

Qualls—all of which were found to be without merit—the district court

determined that the ALJ did not err in declining to give Qualls’s treating

physician’s opinion controlling weight and committed harmless error in stating

that surgery had eliminated a defect in her back. Qualls timely appealed,

raising these two grounds of error. 

B. Medical History

While Qualls claimed a disability onset date of December 2000, her

relevant medical history began prior to this date and involved seven physicians.

Prior to 2000, Dr. Dwight Johnson (“Johnson”) provided treatment to

Qualls. In 1988, she was involved in a car accident. Her injuries included two

broken femurs which required surgery to repair and rods were installed in her

legs. Qualls complained of pain from the accident, particularly in her thighs and

lower back. She was in a second car accident in the 1990s. In 1994, a lesion was

removed from her lip. The pathology report noted findings consistent with an
No. 08-60901

3

early or mild involvement with Sjogren’s Syndrome. Qualls was never diagnosed

with Sjogren’s Syndrome and did not receive treatment for it.

Dr. Patrick Tucker (“Tucker”) treated Qualls between June 2000 and

November 2001. During her visits, she complained of vertigo, headache, and leg

pain. Dr. Tucker prescribed muscle relaxers and pain pills, referring Qualls to

Dr. Victor Gray (“Gray”) for her leg pain. 

Dr. Gray examined Qualls and provided care from March to November

2001. His medical notes indicate that Qualls complained of back pain. Dr. Gray

performed a variety of x-rays and MRI’s of Qualls’s lumbar spine. He found a

mild central disc protrusion and ordered epidural pain injections. Qualls

continued to report back pain throughout this period but Dr. Gray found that she

was resting “fine” with medication.

In August 2001, Qualls began treatment under Dr. Ken Staggs (“Staggs”).

Qualls remained under his care until December 2001. During this period, Qualls

reported continued back pain and Dr. Staggs ordered further epidural injections.

The pain nonetheless continued. In December 2001, during her last visit with

Dr. Staggs, Qualls was informed that the physician had found a posterior

annular tear in her spine and suggested a lumbar support orthotic. The

following month, Qualls underwent an annuloplasty to repair the annular tear.

Surgery was not effective.

Under the recommendation of her attorney, in November 2001, Qualls

visited Dr. Carl Welch (“Welch”). She reported leg and back pain, attributing it

to the 1988 car accident. Dr. Welch completed a Medical Source Statement, a

residual functionality assessment which sets forth, in the physician’s opinion,

the physical limitations of a Social Security benefit applicant. Dr. Welch

asserted that Qualls suffered limitations incompatible with even sedentary work

on a full-time basis. Qualls did not receive treatment from Dr. Welch nor did she

continue under his care after this consultative visit. 
No. 08-60901

 After the administrative hearing, Dr. Steuer wrote a letter indicating that the nerve 1

blocks Qualls had previously undergone had offered her only temporary relief but no long-term

benefits. He also stated that Qualls suffered from some component of disability and disk

disease. 

4

Qualls began treatment under Dr. Michael Steuer (“Steuer”) in August

2002. She continued to report back pain and told Dr. Steuer that she had

recently suffered a fall. During her continued care under Dr. Steuer, Qualls

reported significant improvement, experienced relief with medication, and had

only moderate difficulty in performing daily activities. Dr. Steuer performed a

nerve root block and noted substantial improvement. Nevertheless, in February

2003, Dr. Steuer completed a Medical Source Statement in which he indicated

that Qualls suffered such severe physical limitations that she was unable to

perform even sedentary work.1

In April 2003, at the ALJ’s request, Qualls was evaluated by Dr. James

Galyon (“Galyon”) on a one-time basis. Dr. Galyon completed a Medical Source

Statement in which he determined that Qualls, though hampered by physical

limitations, retained the ability to perform a range of sedentary work.

STANDARD OF REVIEW

Our review of the ALJ’s disability determination “is limited to ascertaining

whether (1) the final decision is supported by substantial evidence and (2) that

proper legal standards were used to evaluate the evidence.” Brown v. Apfel, 192

F.3d 492, 496 (5th Cir. 1999) (internal quotations omitted). “If the [ALJ’s]

findings are supported by substantial evidence, they are conclusive and must be

affirmed.” Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). “Substantial

evidence is more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Consol.

Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938). “In applying the

‘substantial evidence’ test, we must carefully scrutinize the record to determine
No. 08-60901

5

if, in fact, such evidence is present. However, we may not reweigh the evidence

in the record, nor try the issues de novo, nor substitute our judgment for that of

the [ALJ], even if the evidence preponderates against the [ALJ’s] decision.”

Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988). “Conflicts in the evidence

are for the [ALJ] and not the courts to resolve.” Selder, 914 F.2d at 617. Only

where there is a “conspicuous absence of credible choices or no contrary medical

evidence” will we find that the substantial evidence standard has not been met.

Johnson, 864 F.2d at 343–44 (internal quotations omitted). 

DISCUSSION

I. The ALJ’s mistake

Qualls argues that the district court erred in its determination that the

ALJ’s error in setting forth one of her physical ailments was harmless. The ALJ

stated that Qualls’s annular tear had been “eliminated” when, in fact, surgery

had not repaired the defect. Qualls speculates that, without this error, the ALJ

may have found her testimony credible, assessed the medical evidence in a

different light, and determined that her limitations were much more severe—so

severe as to find her disabled. The ALJ’s mistake, Qualls argues, entitles her to

reversal and a new disability determination hearing.

“Procedural perfection in administrative proceedings is not required. This

court will not vacate a judgment unless the substantial rights of a party have

been affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). Where the

resulting disability determination remains unchanged, even if some of the

reasoning underlying that decision is erroneous, no substantial rights have been

affected. See id. “The procedural improprieties alleged by [Qualls] will therefore

constitute a basis for remand only if such improprieties would cast into doubt the

existence of substantial evidence to support the ALJ’s decision.” Morris v.

Bowen, 864 F.2d 333, 335 (5th Cir. 1988). 
No. 08-60901

6

Qualls’s attack on the ALJ’s decision is without merit. She has failed to

show that the ALJ’s disability determination would have been different if the

ALJ had not mistakenly noted that her annular tear had been repaired. A

review of the record reveals that the ALJ did not make his decision in reliance

on the determination that surgery had eliminated the defect. In fact, the

surgery is only mentioned once in the eight page opinion—in the ALJ’s review

of Qualls’s medical history. 

Rather, in analyzing her physical limitations, the ALJ heard testimony

from Qualls, reviewed the medical records submitted, and solicited the opinion

of a vocational expert. None of these are alleged to have labored under the same

misconception with respect to Qualls’s annular tear. The effectiveness of the

annuloplasty had no impact on the ALJ’s disability determination and Qualls’s

speculation that the ALJ’s decision would have been different without this

technical error is unfounded. As the district court pointed out, despite the error,

the ALJ found that Qualls was severely impaired due to back pain. The question

was never whether Qualls suffered nor whether the annular tear had been

repaired but the extent to which this suffering affected her ability to work. 

With respect to the effect that the ALJ’s mistake may have had on the

determination that Qualls was not credible, the record reveals that the

assessment of the annular tear played no part in this analysis. The ALJ

compared Qualls’s testimony with the physical pain she described to her doctors,

noting that while Qualls stated that she experienced daily back pain at a level

of 9 on a 10-point scale, she consistently told Dr. Steuer that her pain level was

only between 4 to 6. At the hearing, she represented that she was very limited

in her ability to perform household chores but had previously told doctors that

she performed these without much difficulty. She further testified that her pain

was only marginally alleviated by medication despite having told her treating

physicians that Oxycontin was extremely effective in controlling her pain. The
No. 08-60901

7

ALJ pointed out other inconsistencies. Among these, Qualls: 1) testified that her

back impairment was the result of a 1988 car accident which severely limited

her physical abilities but continued to work for many years thereafter and

maintained an active lifestyle; 2) stated that she could only sit for twenty

minutes but her testimony was belied by the fact that she testified to having

taken a car trip to the Smokey Mountains; 3) wore an arm brace during the

hearing and claimed that it was to treat her Sjogren’s Syndrome but later

admitted that she has only begun wearing the brace a few days prior to the

hearing, no physician record substantiated the need for the brace, and she had

never been treated for Sjogren’s Syndrome; 4) engaged in ongoing pain behavior

during the hearing as well as flailing maneuvers of her arms, none of which had

ever been previously communicated to doctors or formed part of her medical

records. As is evident from the record, Qualls was discredited by inconsistencies

in her testimony, the medical record before the ALJ, and her behavior during the

hearing, not the ALJ’s mistake. 

Because the ALJ’s decision would not have been different without the

error regarding Qualls’s annular tear, was not based on the effectiveness of the

annuloplasty in any event, and did not affect Qualls’s substantial rights, the

mistake was harmless. Mays, 837 F.2d at 1364. Accordingly, Qualls is not

entitled to reversal or a new disability hearing.

II. The treating physician’s opinion

Qualls asserts that the district court erred in its determination that the

opinion of her treating physician, Dr. Steuer, did not meet the legal standard for

controlling weight. She argues that Dr. Steuer’s opinion, which found her

disabled, should have been given controlling weight because she saw him

numerous times before applying for disability and he completed a Medical

Source Statement. Essentially, Qualls maintains that Dr. Steuer’s disability

determination should prevail over contrary evidence in the record and that the
No. 08-60901

8

ALJ committed an error of law by failing to give his opinion controlling weight.

Qualls also argues that the ALJ gave Dr. Steuer’s opinion no weight and failed

to perform the statutory analysis required when making this decision. 

Where the ALJ rejects the opinion of the treating physician, we have held

that, “absent reliable medical evidence from a treating or examining physician

controverting the claimant’s treating specialist, an ALJ may reject the opinion

of the treating physician only if the ALJ performs a detailed analysis of the

treating physician’s views under the criteria set forth in 20 C.F.R. §

404.1527(d)(2).” Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). Under the

statutory analysis, the ALJ must evaluate: (i) the “[l]ength of the treatment

relationship and the frequency of examination,” (ii) the “[n]ature and extent of

the treatment relationship,” (iii) the supporting evidence presented by the

physician, (iv) the level of consistency between the physician’s opinion and the

record, (v) the physician’s specialization, and (vi) any other relevant factors. 20

C.F.R. § 404.1527(d)(2)–(6). The opinion of a treating physician “may be

assigned little or no weight when good cause is shown. Good cause may permit

an ALJ to discount the weight of a treating physician relative to other experts

where the treating physician’s evidence is conclusory, is unsupported by

medically acceptable clinical, laboratory, or diagnostic techniques, or is

otherwise unsupported by the evidence.” Newton, 209 F.3d at 455–56 (citation

omitted); see also Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995) (in

determining whether to give a treating physician’s opinion controlling weight,

the ALJ must look to whether the opinion is “‘well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not inconsistent

with . . . other substantial evidence’” (quoting 20 C.F.R. § 404.1527(d)(2))).

“[A]lthough the opinion of an examining physician is generally entitled to more

weight than the opinion of a non-examining physician, the ALJ is free to reject
No. 08-60901

 While the ALJ stated that he “weighed the medical opinions of record with 2

consideration of the factors set out in . . . 20 CFR 404.1527” he failed to set forth these factors

or provide an analysis of each element. 

9

the opinion of any physician when the evidence supports a contrary conclusion.”

Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (quotation omitted). 

The ALJ did not follow the statutory analysis specified in Newton for

rejecting a treating physician’s opinion. Nevertheless, Qualls’s challenge fails 2

and the district court properly determined that the ALJ did not err in declining

to give Dr. Seuer’s opinion controlling weight.

As an initial matter, the record does not support the assertion that the

ALJ completely discounted Dr. Steuer’s opinion. The ALJ only rejected parts of

Dr. Steuer’s opinion; specifically, those that did not conform to his own clinical

notes and contradicted the record. In its extensive analysis of each physician’s

opinion, the ALJ pointed out that Dr. Steuer consistently documented

improvement in Qualls’s pain but then, with no explanation of the sudden

change, opined that Qualls was so severely limited as to be unable to perform

even sedentary work. This was inconsistent with both his own clinical notes and

the opinions of the other examining physicians. 

The ALJ properly declined to give Dr. Steuer’s opinion controlling weight

and did not err by failing to perform the statutory analysis outlined in Newton.

First, Newton specifically states that the statutory steps must be followed

“absent reliable medical evidence from a treating or examining physician

controverting the claimant’s treating specialist.” 209 F.3d at 453. The ALJ was

presented with substantial evidence which contradicted Dr. Steuer’s opinion.

Qualls was seen by five treating physicians and, despite evidence that she

informed several doctors that she sought disability benefits, she obtained a

Medical Source Statement from only one—Dr. Steuer. From October to

December 2002, Dr. Steuer documented excellent improvement in Qualls’s
No. 08-60901

10

symptoms and indicated that she had only moderate difficulty in performing the

activities of daily life. Nevertheless, the Medical Source Statement he filled out

two months later stated that Qualls was incapable of performing even sedentary

work. Nothing in Qualls’s medical record explains the sudden change and the

inconsistency between Dr. Steuer’s Medical Source Statement and his clinical

notes. On the contrary, Dr. Tucker and Dr. Staggs, Qualls’s prior physicians,

determined that her limitations were not disabling. Two other doctors, Dr.

Welch and Dr. Galyon, also completed Medical Source Statements after

examining Qualls. While Dr. Welch determined that she was so disabled as to

be unable to perform even sedentary work, Dr. Galyon disagreed. The ALJ gave

Dr. Welch’s opinion little weight, finding it to diverge from the record and

Qualls’s own claims. Dr. Welch opined that Qualls suffered from a range of

physical limitations of which Qualls had never complained and which none of

her treating physicians had ever observed. By contrast, Dr. Galyon’s opinion

was supported by the independent medical analysis of Qualls’s other treating

physicians, Dr. Tucker and Dr. Staggs, as well as Dr. Steuer’s own clinical notes.

Second, even if we read Newton as requiring the ALJ to set forth its

analysis of the five statutory elements when declining to give controlling weight

to a treating physician, Newton does not apply. The Newton court limited its

holding to cases where the ALJ rejects the sole relevant medical opinion before

it. In Newton, “the ALJ summarily rejected the opinions of [claimant’s] treating

physician, based only on the testimony of a non-specialty medical expert who

had not examined the claimant.” 209 F.3d at 458. Newton was not a case with

“competing first-hand medical evidence” where the ALJ found “as a factual

matter that one doctor’s opinion [wa]s more well-founded than another. . . . Nor

[wa]s this a case where the ALJ weigh[ed] the treating physician’s opinion on

disability against the medical opinion of other physicians who [had] treated or

examined the claimant and [had] specific medical bases for a contrary opinion.”
No. 08-60901

11

Id. The Newton court also dealt with an incomplete record. None of these

factors are present here. As previously noted, the ALJ’s decision was based on

the medical opinion of doctors who had treated and examined Qualls. These

physicians had informed, first-hand, knowledge to support their opinions. 

Because Dr. Steuer’s opinion was not “well-supported by medically

acceptable clinical and laboratory diagnostic techniques” and was “inconsistent

with . . . other substantial evidence” in the record, the ALJ was not required to

give his opinion controlling weight. Martinez, 64 F.3d at 176 (quotation

omitted). The ALJ applied the proper legal standard and his decision is

supported by substantial evidence. See Brown, 192 F.3d at 496. 

CONCLUSION

The judgment of the district court is AFFIRMED.