United States Court of Appeals 

for the Fifth Circuit 

No. 20-40682 

Summary Calendar 

Rosemarie Pena, 

Plaintiff—Appellant, 

versus

Andrew M. Saul, Commissioner of Social Security, 

Defendant—Appellee. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 2:19-CV-235 

Before Davis, Stewart, and Dennis, Circuit Judges.

Per Curiam:*

Claimant Rosemarie Pena appeals the district court’s order adopting 

the magistrate judge’s Memorandum and Recommendation, denying 

Claimant’s motion for summary judgment, affirming the Commissioner of 

*

 Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited 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 Circuit Rule 47.5.4. 

United States Court of Appeals 

Fifth Circuit 

FILED 

May 6, 2021 

Lyle W. Cayce 

Clerk 

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No. 20-40682 

2 

Social Security’s determination, and dismissing Claimant’s case. For the 

reasons stated below, we AFFIRM. 

Claimant alleged disability on August 12, 2016 due to a benign brain 

tumor, scoliosis, diabetes, arthritis in her hips, legs, and lower back, high 

blood pressure, high cholesterol, and being hard of hearing in her right ear. 

Claimant’s application was denied upon initial consideration and again upon 

reconsideration. At Claimant’s request, a hearing was held before an 

administrative law judge (“ALJ”), who concluded that Claimant was not 

disabled from August 12, 2016 through the date of the decision, August 10, 

2018. Claimant’s request that the Appeals Council review this decision was 

denied, thereby making the August 10, 2018 decision final under 42 U.S.C. 

§ 405(g). Claimant timely filed suit on August 16, 2019, seeking a review of 

the final decision of the Commissioner of Social Security (“Commissioner”). 

After a thorough review of the evidence, the magistrate judge issued a 

Memorandum and Recommendation, recommending to the district court 

that the Commissioner’s determination be affirmed, and Claimant’s cause of 

action be dismissed. On September 18, 2020, the district court issued an 

order adopting the Memorandum and Recommendation in its entirety, and 

Claimant timely appealed. 

On appeal, Claimant asserts a range of due process and procedural 

errors but cites to no authority and provides no evidence to support her 

allegations. For the reasons thoroughly detailed by the magistrate judge, we 

conclude that Claimant’s procedural claims are meritless. 

“We review the denial of benefits only to ascertain whether 

substantial evidence supports the final decision and whether the 

Commissioner used the proper legal standards to evaluate the evidence. We 

affirm the Commissioner’s findings whenever supported by substantial 

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3 

evidence.”1 “Substantial evidence is ‘such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.’”2 The crux of this 

case, therefore, is whether substantial evidence supports the ALJ’s 

determination that Claimant was not disabled during the relevant timeframe. 

State medical expert Dr. McCary opined that Claimant was capable of 

light work with standing and/or walking for up to four hours, sitting for about 

six hours in an eight-hour workday, climbing ramps and stairs but not ladders, 

ropes, or scaffolds, frequent balancing, kneeling, and crawling, and 

occasional stopping and crouching. Moreover, state medical expert Dr. 

Spoor opined that Claimant was capable of work with standing and/or 

walking for up to six hours, sitting for about six hours in an eight-hour 

workday, frequently climbing raps and stairs but only occasionally climbing 

ladders, ropes, or scaffolds, frequent balancing, kneeling, crouching, and 

crawling, and occasional stooping. The ALJ gave more weight to Dr. 

McCary’s opinion than Dr. Spoor’s and ultimately concluded that although 

Claimant has some impairments that limit her to a reduced range of light 

work, treatment notes in the record from her physicians and diagnostic test 

results did not support Claimant’s allegations of disabling conditions. 

Based on our review of the record, we are satisfied that substantial 

evidence supports the ALJ’s determination that Claimant has not been under 

a disability, as defined in the Social Security Act, from August 12, 2016 

through August 10, 2018. For those reasons and the ones stated by the 

magistrate judge in his thorough Memorandum and Recommendation, we 

AFFIRM. 

1 Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (citations omitted). 

2 Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. 

Perales, 402 U.S. 389, 401 (1971)).

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