IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 14-20563

LINDA RAMIREZ, 

 Plaintiff – Appellant,

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant – Appellee.

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:13-CV-3607

Before STEWART, Chief Judge, and KING and ELROD, Circuit Judges.

PER CURIAM:*

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

Ramirez disability benefits under Title II of the Social Security Act (the “Act”), 

42 U.S.C. § 423, and Ramirez challenged the denial in district court. The 

district court affirmed the Commissioner’s denial, a decision that Ramirez

appeals. We reverse the judgment of the district court and remand the case 

* 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.

United States Court of Appeals

Fifth Circuit

FILED

April 10, 2015

Lyle W. Cayce

Clerk

 

 Case: 14-20563 Document: 00513001033 Page: 1 Date Filed: 04/10/2015
No. 14-20563

with instructions that it be remanded to the Commissioner for further 

proceedings consistent with this opinion.

I.

On May 17, 2011, Ramirez applied for disability insurance benefits and 

supplemental security income, alleging a disability onset date of April 15, 2011, 

due to degenerative joint disease, status post arthroscopy of the right knee with 

medial and lateral meniscectomy, chondroplasty of medial and lateral condyle, 

partial synorectomy, degenerative disc disease, diabetes mellitus, obesity, 

sleep apnea, asthma, and depression. Following the Commissioner’s initial 

denial of Ramirez’s claims, an administrative law judge (“ALJ”) held a hearing 

on June 29, 2012, at Ramirez’s request. ROA. 74–100. Ramirez appeared at 

the hearing and testified with the assistance of an attorney. Herman Litt, a 

vocational expert (“VE”), was also present and testified as an expert witness.

On August 24, 2012, the ALJ rendered a decision unfavorable to 

Ramirez, finding that she was not disabled within the meaning of the Act and 

was not entitled to the requested benefits. The ALJ first found that Ramirez 

had not engaged in substantial gainful activity since April 15, 2011. Next, the 

ALJ determined that Ramirez suffered from the following severe impairments: 

degenerative joint disease, status post arthroscopy of the right knee with 

medial and lateral meniscectomy, chondroplasty of medial and lateral condyle, 

partial synorectomy, diabetes mellitus, and obesity. The ALJ found, however, 

that these impairments, either singly or in combination, were not severe 

enough to meet or medically equal one of the impairments listed in Appendix 

1, Subpart P, 20 C.F.R. § 404.

The ALJ then determined that Ramirez retained the residual functional 

capacity (“RFC”) to perform sedentary work as defined by 20 C.F.R. §§ 

404.1567(a) and 416.967(a) (able to lift up to ten pounds, sit, and occasionally 

walk and stand). The ALJ found that Ramirez could perform unskilled work 

2

 Case: 14-20563 Document: 00513001033 Page: 2 Date Filed: 04/10/2015
No. 14-20563

and could occasionally kneel, stoop, crouch, crawl, and climb stairs and ramps, 

but she could not climb ladders, ropes, or scaffolds. In making these findings, 

the ALJ stated that she gave “little weight” to the opinions of the two nonexamining state agency medical consultants because “other medical opinions 

are more consistent with the record as a whole.” By contrast, the ALJ gave 

“some weight” to the opinions of Ramirez’s treating physicians because “the 

evidence shows the claimant is capable of sedentary work . . . and the opinions 

are mostly consistent with the evidence of record.” The ALJ further found that 

Ramirez’s “statements concerning the intensity, persistence and limiting 

effects of [her] symptoms are not credible to the extent they are inconsistent 

with” the ALJ’s RFC assessment, noting that at the hearing Ramirez testified 

she was able to “care for her children, prepare simple meals, drive, shop, watch 

television, read, and pay bills.” 

Based upon her RFC assessment, the ALJ concluded that Ramirez was 

unable to perform any of her past relevant work. Relying upon her RFC 

assessment and the vocational expert’s testimony, and considering Ramirez’s 

age, educational background, and work experience, the ALJ determined that 

Ramirez could perform other available work as an optical goods worker, a 

jewelry preparer, and a sorter. Therefore, the ALJ found that Ramirez was not 

disabled and was not entitled to the benefits that she had requested.

After the Appeals Council denied Ramirez’s request for review, she filed 

her complaint in the district court, seeking review of the final administrative 

decision pursuant to 42 U.S.C. § 405(g). The parties filed cross motions for 

summary judgment. The district court granted the Commissioner’s motion and 

denied Ramirez’s motion, entering judgment against Ramirez and declaring 

that she take nothing. Ramirez timely noticed this appeal.

3

 Case: 14-20563 Document: 00513001033 Page: 3 Date Filed: 04/10/2015
No. 14-20563

II.

We review de novo the district court’s grant of summary judgment, 

applying the same standard that the district court applied. Spellman v. 

Shalala, 1 F.3d 357, 360 (5th Cir. 1993). Our review of the Commissioner’s 

decision, like the district court’s review, is limited under 42 U.S.C. § 405(g) to 

two inquiries: (1) whether substantial evidence of record supports the decision; 

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

v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). “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). 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). 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.

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

4

 Case: 14-20563 Document: 00513001033 Page: 4 Date Filed: 04/10/2015
No. 14-20563

disabled.1 The burden of proof is on the claimant at the first four steps. 

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

fifth step to establish the existence of other available substantial gainful 

employment that a claimant can perform. Fraga v. Bowen, 810 F.2d 1296, 

1301–02 (5th Cir. 1987). If the Commissioner identifies such employment, the 

burden shifts back to the claimant to prove that she could not perform the 

alternative work identified. Id. at 1302. Throughout the process, the ultimate 

burden of establishing disability remains with the claimant. Hames v. Heckler, 

707 F.2d 162, 165 (5th Cir. 1983).

Under regulations promulgated by the Commissioner, a claimant is able 

to perform sedentary work—the classification assigned to the least physically 

demanding form of employment—if she can sit and lift up to ten pounds at a 

time, although occasional walking and standing may be required. 20 C.F.R. §§ 

404.1567(a) and 416.967(a). Social Security Ruling 83–10 elaborates on this 

definition of “sedentary work,” providing that “standing or walking should 

generally total no more than about 2 hours of an 8–hour workday, and sitting 

should generally total approximately 6 hours of an 8–hour workday.” SSR 83–

10; see also 20 C.F.R. § 402.35(b)(2) (with exceptions not applicable in this case, 

Social Security Rulings “are binding on all components of the Social Security 

Administration”); Myers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001) (“The Social 

Security Administration’s rulings are not binding on this court, but they may 

be consulted when the statute at issue provides little guidance. The Fifth 

1 The steps include: (1) whether the claimant is 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 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)(4), 

416.920(a)(4).

5

 

 Case: 14-20563 Document: 00513001033 Page: 5 Date Filed: 04/10/2015
No. 14-20563

Circuit has frequently relied upon the rulings in evaluating ALJ’s decisions.” 

(internal citations omitted)).2

Even so, Social Security Ruling 96–9p clarifies that the inability to 

exactly fulfill these requirements does not automatically result in a 

determination that the claimant is disabled—it merely means that the 

claimant is unable to perform the full range of sedentary occupations. SSR 96–

9p. Only when the claimant’s ability to perform “the full range of sedentary 

work is significantly eroded” will a finding of disabled usually apply, as certain 

sedentary jobs may have less demanding requirements than others. Id.

(emphasis added). For example, if an individual is able to stand and walk for 

a total of only a few minutes per workday, her occupational base will be 

significantly eroded and a disability finding will likely be appropriate. Id. 

Conversely, a claimant may not be disabled if she is able to stand and walk for 

slightly less than two hours per workday. Id. Likewise, the fact that a 

claimant must periodically alternate between sitting and standing or walking 

will not automatically require a disability finding, especially where the need 

can be accommodated by scheduled breaks and a lunch period. Id.

IV.

Ramirez asserts two points of error in the district court’s determination 

that substantial evidence supports the final administrative decision that she 

was not disabled within the meaning of the Act. Ramirez argues that the ALJ

failed to properly assess her credibility. Ramirez also argues that in 

determining her RFC, the ALJ either failed to give sufficient weight to the

opinions of her treating physicians or misunderstood the definition of 

sedentary work. We address these arguments in turn.

2 The parties do not contest in this appeal the validity of any particular Social Security 

Ruling, and for purposes of this appeal, we assume without deciding that the Rulings cited 

in this opinion represent proper interpretations of the Social Security Act.

6

 

 Case: 14-20563 Document: 00513001033 Page: 6 Date Filed: 04/10/2015
No. 14-20563

A.

Ramirez contends that the ALJ erred when she discounted Ramirez’s

“statements concerning the intensity, persistence and limiting effects of [her] 

symptoms.” In choosing not to credit these subjective complaints, the ALJ 

catalogued medical evidence and portions of Ramirez’s testimony that 

suggested her symptoms were not as severe as she had asserted. The ALJ

noted that after her initial knee injury, Ramirez did not seek treatment and 

her symptoms improved. In February 2011, x-rays of Ramirez’s knees were 

“unremarkable,” although an MRI two months later showed a ligament tear. 

In September 2011, Ramirez underwent knee surgery to repair the ligament 

tear, and her symptoms improved; according to post-operative treatment notes, 

Ramirez “only had minimal swelling, improved range of motion, no crepitus or 

grinding, no significant pain, and she was doing much better.” In June 2011, 

Ramirez’s diabetes was improving, and by January 2012, her “diabetic control 

[was] much better.” The ALJ observed that at the hearing, Ramirez testified 

she stopped taking medication for her diabetes in May 2012, and her treating 

physician said she had a fair to good prognosis. Finally, the ALJ noted that 

Ramirez testified at the hearing that she could care for her children, cook 

simple meals, drive, and shop, among other activities. 

Ramirez argues that the ALJ discounted her subjective complaints solely 

based on her activities of daily living and that this was insufficient. This 

argument begins with a flawed premise. As we have described above, in 

making her credibility determination, the ALJ did not simply rely on Ramirez’s 

activities of daily living—she also relied extensively on Ramirez’s medical 

records, which generally reflected improvement of her symptoms over time. 

We accord “great deference” to an ALJ’s assessment of a claimant’s credibility. 

Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000). The ALJ “is entitled to 

determine the credibility of medical experts as well as lay witnesses and weigh 

7

 Case: 14-20563 Document: 00513001033 Page: 7 Date Filed: 04/10/2015
No. 14-20563

their opinions accordingly.” Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985). 

As we have often noted, it is the role of the Commissioner, and not the courts, 

to resolve conflicts in the evidence. See, e.g., Brown, 192 F.3d at 496. 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, 67 F.3d at 564. A finding of no substantial 

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

choices or no contrary medical evidence.” Johnson, 864 F.2d at 343–44 

(internal quotation marks and citation omitted). 

Here, the ALJ carefully weighed Ramirez’s subjective complaints against 

contrary medical evidence and Ramirez’s testimony regarding her daily 

activities. Therefore, in choosing to discount Ramirez’s subjective complaints, 

the ALJ applied correct legal standards and made a permissible choice based 

on substantial evidence.

B.

Ramirez also argues that in making her RFC determination, the ALJ 

either failed to give sufficient weight to the opinions of her treating physicians 

or misunderstood the definition of sedentary work. We agree. 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 “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 

8

 Case: 14-20563 Document: 00513001033 Page: 8 Date Filed: 04/10/2015
No. 14-20563

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).

As noted above, Social Security Rulings provide that as the term is used 

in 20 C.F.R. §§ 404.1567(a) and 416.967(a), “sedentary work” generally 

requires about six hours of sitting and no more than about two hours of 

standing or walking per workday. SSR 83–10; SSR 96–9p. The ALJ found that 

Ramirez has the RFC to perform sedentary work as defined in 20 C.F.R. §§ 

404.1567(a) and 416.967(a), and she did not find that Ramirez’s ability to 

perform the full range of sedentary work was eroded. In making this RFC 

finding, the ALJ stated that she gave “some weight” to the opinions of 

Ramirez’s treating physicians. However, none of Ramirez’s treating physicians

ever opined that Ramirez could sit for six hours per workday. On December 

30, 2011, and again on April 12, 2012, Dr. David Navid—Ramirez’s orthopedic 

surgeon—opined that Ramirez could sit for a maximum of four hours per 

workday but could not stand or walk at all. Dr. Navid also opined that Ramirez 

could lift and carry weight for two hours per workday. In May 2012, two other 

treating physicians offered opinions on Ramirez’s medical conditions and 

ability to work. Dr. Pamela Nguyen, Ramirez’s family practitioner, opined that 

9

 Case: 14-20563 Document: 00513001033 Page: 9 Date Filed: 04/10/2015
No. 14-20563

Ramirez could sit for only two hours and stand or walk for only one hour per 

eight-hour workday and she would require unscheduled breaks, but Ramirez 

could occasionally lift and carry up to ten pounds. Dr. Nguyen expected that 

Ramirez’s impairments would last for at least twelve months; however, she 

also opined that Ramirez could perform full-time jobs that required her to keep 

her neck in a constant position. Dr. Nguyen also opined that Ramirez could 

frequently lift—and occasionally carry—up to five pounds. Dr. Jeffrey 

Bowman, Ramirez’s podiatrist, opined that Ramirez could sit for only four 

hours per workday but could also walk for four hours, although she could not 

stand still or lift any weight. 

The Commissioner observes that none of Ramirez’s treating physicians 

opined that she was disabled. This fact may indeed inform an ALJ’s decision. 

See Vaughan v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995); Harper v. Sullivan, 

887 F.2d 92, 97 (5th Cir. 1989). In this case, however, the treating physicians’ 

unanimous agreement that Ramirez cannot sit for six hours per workday is 

inconsistent with the ALJ’s finding that Ramirez has the RFC to perform the 

full range of sedentary work. 

The Commissioner also notes that Drs. Navid and Bowman concluded

Ramirez’s impairments would not last longer than six months and would 

improve with treatment, and even Dr. Nguyen concluded Ramirez’s prognosis 

was fair to good and her conditions would improve once she lost weight. 

However, Ramirez has alleged a disability onset date of April 15, 2011, and 

none of Ramirez’s treating physicians opined that by April 15, 2012, she was 

or would be able to sit for six hours per workday. Therefore, unless the ALJ 

were to find that Ramirez’s severe impairments began after April 15, 2011 or 

otherwise lasted or would last for less than twelve months—a finding that she 

did not make—the opinions of Ramirez’s treating physicians could not support 

10

 Case: 14-20563 Document: 00513001033 Page: 10 Date Filed: 04/10/2015
No. 14-20563

the ALJ’s RFC determination. As of May 2012, Ramirez’s treating physicians 

had agreed that she lacked the ability to sit for six hours per workday. 

Thus, to support her finding that Ramirez had the RFC to perform the 

full range of sedentary work, the ALJ would have to disregard some of the 

opinions of Ramirez’s treating physicians, not simply accord them less than 

controlling weight. The ALJ did not state that she disregarded the opinions of 

Ramirez’s treating physicians, much less show good cause for doing so. 

Therefore, the ALJ’s decision does not comport with proper legal standards. 

We are not prepared to say whether the ALJ erred in her ultimate conclusion 

that Ramirez is not disabled. Even if Ramirez is unable to sit for six hours 

each workday, perhaps she still has the RFC to perform a significant subset of 

sedentary work that can accommodate her impairments. That is not for us to 

determine, at least not today. Rather, on remand, the ALJ should state 

whether she in fact gives any weight to the opinions of Ramirez’s treating 

physicians regarding Ramirez’s capacity to sit for prolonged durations, where

all concluded that she could not sit for six hours per workday. If the ALJ gives 

weight to their opinions on this issue and finds that Ramirez lacks the ability 

to sit for six hours per workday, she should consider whether Ramirez is 

nonetheless able to engage in any substantial gainful activity. If, on the other 

hand, the ALJ does not credit the opinions of Ramirez’s treating physicians on 

this issue and finds that Ramirez has the RFC to perform the full range of 

sedentary work as defined by 20 C.F.R. §§ 404.1567(a) and 416.967(a), she 

should explain her reasons for disregarding the opinions of the treating 

physicians.

V.

Because the final administrative decision to deny Ramirez’s application 

for supplemental security income benefits does not comport with proper legal 

standards, we REVERSE the judgment of the district court and remand the 

11

 Case: 14-20563 Document: 00513001033 Page: 11 Date Filed: 04/10/2015
No. 14-20563

case with instructions that it be remanded to the Commissioner for further 

proceedings consistent with this opinion.

12

 Case: 14-20563 Document: 00513001033 Page: 12 Date Filed: 04/10/2015