* 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. 07-50829

Summary Calendar

JUDY BRYANT

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. 6:06-CV-15

Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Judy Bryant seeks review of the Commissioner of Social Security’s final

decision to deny her application for disability benefits. Because the

Commissioner’s decision is supported by substantial evidence and is consistent

with applicable law, we AFFIRM. 

I.

In November 2002 Bryant filed an application for Disability Insurance

Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI

United States Court of Appeals

Fifth Circuit

F I L E D

April 2, 2008

Charles R. Fulbruge III

Clerk
No. 07-50829

2

of the Social Security Act. Bryant alleged that she was unable to work due to

deterioration of bones, scoliosis, spina bifida, nerve damage, and pain. Her

claims were denied initially and upon reconsideration. On July 9, 2004, Bryant

received a hearing before the Administrative Law Judge. The ALJ denied

benefits upon determining that Bryant is not disabled under the Social Security

Act. The ALJ found that Bryant has a disorder of the spine and that the

disorder is a severe impairmentthat does not meet or equal requirements of any

of the impairments listed in the Listing of Impairments. The ALJ further found

that Bryant had the residual functional capacity 

to lift and/or carry 10 pounds occasionally and less than

10 pounds frequently, to stand and/or walk for about 6

hours in an 8-hour workday, to sit for about 8 hours in

an 8 hour workday with a need to alter sitting and

standing periodically, never to kneel or crawl,

occasionally to climb, balance, crouch or stoop, and

never to work in vibrations, around moving machinery,

or at unprotected heights. 

Therefore, the ALJ found that Bryant has the residual functional capacity to

perform less than the full range of sedentary work. He found that there are a

significant number of jobs in the national economy that she can perform. The

Appeals Council denied Bryant’s request for review, making the ALJ’s decision

the final decision of the Commissioner. 

Bryant appealed to the district court. The parties consented to proceed

before a magistrate judge, who affirmed the decision of the ALJ. 

II.

Bryant contends on appeal, as she did in the district court, that the ALJ’s

decision that she has the residual functional capacity to perform a significant

number of jobs is not supported by substantial evidence. She also contends that

the ALJ did not give proper weightto the records and opinion of her treating and
No. 07-50829

1 Dr. Cindrich performed an L5-S1 decompression, instrumentation and iliac crest

fusion for arthrodesis. 

3

examining doctors. Finally, Bryant contends that the ALJ did not use the

appropriate legal standard to determine that her testimony was not credible. 

III. 

We review the Commissioner’s decision to deny social security benefits

only to determine whether the decision is supported by substantial evidence and

based on proper legal standards. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir.

2002). 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.” Richardson v. Perales, 402 U.S. 389, 401 (1971). We may not

reweigh the evidence or substitute our own judgment for that of the

Commissioner. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). 

The magistrate judge’s order carefully addresses Bryant’s claims. We

agree with the reasoning and decision of the magistrate judge that the ALJ’s

decision was supported by substantial evidence and based on proper legal

standards. In the light of the magistrate judge’s thorough and well-reasoned

order, only a few of Bryant’s arguments need be addressed here. 

A.

Bryant contends that the ALJ did not give proper weight to the opinion of

one of her treating doctors, Patrick Cindrich, and did not sufficiently resolve

conflicts in the evidence. 

Dr. Cindrich performed back surgery on Bryant in August 2003.1 Bryant

was examined by Dr. Brett Bolte in November 2003. The ALJ noted Dr. Bolte’s

findings that Bryant’s cervical range of motion is normal without significant

complaints of pain and his diagnosis of spondylolistheses and low back pain

status postlaminectomy. Dr. Bolte reported that Bryant was not stable and that

no long-term evaluation of her residual functional capacity was possible. Dr.
No. 07-50829

2 Section 404.1527 relates to the evaluation of opinion evidence to determine disability

for Federal Old-Age, Survivors and Disability Insurance. 20 C.F.R. § 416.927 contains

identical provisions concerning the evaluation of opinion evidence to determine disability for

SSI. 

4

Bolte evaluated her shortterm function,finding that Byrant can lift and/or carry

10 pounds occasionally and less than 10 pounds frequently, that she can stand

and/or walk for about 6 hours in an 8-hour workday, that she can sit for about

6 hours in an 8-hour workday, that she must alternate sitting and standing

periodically to relieve pain or discomfort, that she never can kneel or crawl, that

she occasionally can climb ramps or stairs, balance, crouch or stoop, and that she

has a limited ability to work in vibrations, around moving machinery or at

unprotected heights. 

In May 2004, Dr. Cindrich found that Bryant continued with back pain

and that her persistent spondylolisthesis required additional surgery. On July

7, Dr. Cindrich scheduled an anterior lateral interbody fusion of the lumbar

spine on July 14, with a post operative recovery period of six to eight weeks. 

Bryant contends that evidence from Dr. Cindrich, provided after Dr.

Bolte’s examination and report, indicates that the ALJ’s finding was not

supported by substantial evidence and that the ALJ did not use the correct legal

standard to evaluate her treating doctor’s evidence. Bryant contends that the

ALJ could not reject the opinion of her treating physician without performing a

detailed analysis of the treating physician’s views under the criteria set forth in

20 C.F.R. § 404.1527(d).2 Section 404.1527(d) provides that, “[u]nless we give a

treating source’s opinion controlling weight . . . we consider all the following

factors in deciding the weight we give to any medical opinion.” The section then

lists six factors: examining relationship, treatment relationship, supportability,

consistency with the record, and specialization. 

Contrary to Bryant’s assertion, the ALJ did not reject Dr. Cindrich’s

opinion. The ALJ noted Dr. Cindrich’s May and July 2004 findings and
No. 07-50829

5

considered the impact of the additional surgery in determining whether Bryant

was disabled. Bryant argues that “[s]urgery is not performed on perfectly

healthy backs which create no limitation on the individual.” The fact that Dr.

Cindrich ordered additional back surgery does not refute the other evidence in

the record supporting the ALJ’s determination of Bryant’s residual functional

capacity. Dr. Cindrich made no statements regarding Bryant’s limitations after

the expected recovery period of six to eight weeks. Dr. Cindrich’s opinion was

not inconsistent with the other evidence and was taken into account by the ALJ.

The ALJ found that Bryant has a disorder of the spine. Dr. Cindrich’s

2004 opinions indicated that Bryant had spondylolisthesis that would require an

additional surgery. The ALJ’s finding did not conflict with Dr. Cindrich’s

opinion. Dr. Cindrich did not provide an opinion relating to whether Bryant was

disabled or what her residual functional capacity would be, other than to state

that the surgery required a six to eight week recovery. In addition, although the

ALJ did not list the factors stated in § 404.1527(d), the decision indicates that

he considered those factors in evaluating Dr. Cindrich’s medical opinion. The

ALJ cited sections 404.1527 and 414.927 and supplemental Social Security

Rulings 96-2p and 96-6p in the decision. The decision also details Dr. Cindrich’s

examining and treatment relationship with Bryant, as reflected by the evidence

submitted. The ALJ noted Dr. Cindrich’s specialization as a neurosurgeon. The

ALJ also noted that Dr. Cindrich did not state that Bryant would be disabled

and did not note any restrictions, indicating that Dr. Cindrich’s opinion was

consistent with the other medical evidence. In sum, the ALJ’s decision reflects

that he considered the relevant factors in weighing Dr. Cindrich’s opinion and

did not use an inappropriate legal standard.
No. 07-50829

3 SSR 96-8p provides that “[t]he RFC assessment must include a narrative discussion

describing how the evidence supports each conclusion, citing specific medical facts (e.g.

laboratory findings) andnonmedical evidence (e.g., daily activities, observations). In assessing

RFC, the adjudicator must discuss the individual’s ability to perform sustained work activities

in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days

a week, or an equivalent work schedule), and describe the maximum amount of each workrelated activity the individual can perform based on the evidence available in the case record.”

4 Although the ALJ did not make a finding regarding Bryant’s ability to push or pull,

Bryant does not assert the lack of such a finding as error. Moreover, on the face of the

applicable regulation, sedentary work does not involve pushing or pulling. 20 C.F.R. §

404.1567(a) (“Sedentary work involves lifting no more than 10 pounds at a time and

occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a

sedentary job is defined as one which involves sitting, a certain amount of walking and

standing is often necessary in carrying out job duties. Jobs are sedentary if walking and

standing are required occasionally and other sedentary criteria are met.”). Cf. 20 C.F.R. §

404.1567(b) (“Light work involves lifting no more than 20 pounds at a time with frequent

lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be

very little, a job is in this category when it requires a good deal of walking or standing, or when

it involves sitting most of the time with some pushing and pulling of arm or leg controls.”).

6

B.

Bryant also contends that the ALJ failed to include an adequate narrative

discussion addressing her residual functional capacity, as required by Social

Security Ruling 96-8p.3 Although the Social Security Administration’s rulings

are not binding on this court, we have consulted them “when the statute at issue

provides little guidance.” Meyers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001). In

Meyers, we found that the ALJ erred by not fully addressing the plaintiff’s

residual functional capacity, failing to fully address standing, walking, and

pushing/pulling or whether the plaintiff could perform functions on a regular

and continuing basis. Id. at 621. Moreover, the court found that the medical

evidence as a whole conflicted with the ALJ’s findings. Id. 

The ALJ here specifically addressed Bryant’s ability to lift, carry, stand,

walk, sit, kneel, crawl, climb, balance, crouch and stoop.4 He addressed the

frequency with which Bryant could perform the activities described during an

eight hour workday. The discussion of Bryant’s residual functional capcity also
No. 07-50829

7

addressed the primary evidence upon which the findings were based: Bryant’s

testimony; the opinion of her treating physician, Dr. Cindrich; and the opinion

of the examining physician, Dr. Bolte. The ALJ stated that he gave less weight

to the opinions of physicians who only examined Bryant’s medical records.

Bryant does not identify any evidence of particular limitations that were not

found by the ALJ. 

Bryant also asserts that some of the jobs the vocational expert referenced

at her hearing are not sedentary, but instead are described in the Dictionary of

Occupational Titles (“DOT”) as “light” in terms of exertional requirements. The

vocational expert testified, however, that all of the jobs she cited were at the

“sedentary, unskilled level.” Bryant’s counsel had an opportunity at the hearing

to cross-examine the expert regarding her classification of the jobs she cited, but

did not do so. See Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000)

(“[C]laimants should not be permitted to scan the record for implied or

unexplained conflicts between the specific testimony of an expert witness and

the voluminous provisions of the DOT, and then present that conflict as

reversible error, when the conflict was not deemed sufficientto merit adversarial

development in the administrative hearing.”). Accordingly, the ALJ’s

determination of Bryant’s residualfunctional capacity was notinconsistent with

SSR 96-8p and was supported by substantial evidence.

IV.

For the foregoing reasons, and for the reasons given by the magistrate

judge in his thorough opinion, we hold that the ALJ’s decision was supported by

substantial evidence and based upon the proper legal standards. The decision

of the district court is therefore

AFFIRMED.