UNITED STATES DISTRICT COURT

 NORTHERN DISTRICT OF TEXAS

 LUBBOCK DIVISION

RENE FLORES, )

)

 Plaintiff, )

)

v. ) CIVIL ACTION NO.

) 5:04-CV-157-BG

 ) ECF

MICHAEL J. ASTRUE, ) 

Commissioner of Social Security, )

)

Defendant. )

REPORT AND RECOMMENDATION

 Plaintiff Rene Flores seeks judicial review of a decision of the Commissioner of

Social Security denying his application for Disability Insurance Benefits (DIB).

The United States District Judge reassigned this case to the United States Magistrate Judge

for all proceedings. Flores did not, however, consent to the jurisdiction of the United States

Magistrate Judge. Pursuant to the order reassigning this case, the undersigned now files this

Report and Recommendation. After reviewing the administrative record and the arguments

of both parties, this court recommends that the District Court affirm the Commissioner’s

decision. 

I. Standard of Review

The court is statutorily limited to determining whether the Commissioner’s decision

is supported by substantial evidence and whether proper legal standards were used to

evaluate the evidence. 42 U.S.C. § 405(g); Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir.

2002) (citing Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)). The Commissioner’s
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decision is granted great deference and will not be disturbed unless the court cannot find

substantial evidence in the record to support the Commissioner’s decision or finds that the

Commissioner made an error of law. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

II. Facts

Flores has a history of back and shoulder impairments. He underwent a number of

procedures on his left shoulder. He underwent arthroscopic repair of a torn rotator cuff that

resulted from left shoulder dislocation in June 1998. (Tr. 573, 576-77, 584.) He suffered

impingement in the left shoulder and underwent decompression and ligament release in

April 2002. (Tr. 112.) In May 2004 he underwent arthroscopic repair for a tear in his left

shoulder. (Tr. 681.) 

The medical records indicate that Flores’ back problems began in April 2001. At that

time he worked as a delivery driver for a florist and was involved in a motor vehicle accident

while driving a delivery truck. (Tr. 122.) An MRI of Flores’ spine showed mild

degenerative disc disease and minimal bulging, and it was believed that the conditions were

preexisting and unrelated to the accident. Id. A physician diagnosed stress aggravation of

preexisting degenerative disc disease and facet joint arthrosis. (Tr. 122.) Flores continued

to work. (Tr. 123.) Nearly one year later in March 2002 Flores complained of back pain that

varied in intensity throughout the day and that was helped somewhat with medication.

(Tr. 608.) A physician treated his pain with an epidural steroid injection at that time, and he

underwent another injection in April 2002. (Tr. 85, 610.) Flores stopped working in May

2002 to undergo a lumbar fusion and applied for DIB on August 20, 2002. (Tr. 336-38, 397.)
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He was thirty-two years old at that time. (Tr. 336.) 

 Following surgery Flores experienced improved range of motion, experienced no

radiation, and although he complained of some aching and stiffness, his physician believed

the fusion had “taken well.” (Tr. 104, 106.) However, Flores sought treatment in an

emergency room thereafter for back pain. (Tr. 90.) An x-ray showed that his spine was

within normal limits with the exception of a surgical scar. (Tr. 80.) Flores continued to

complain of back pain, and in January 2003 a physician assessed low back pain caused by

degenerative disc disease. (Tr. 215.) The physician noted no loss of gross motor strength

but referred Flores to physical therapy. (Tr. 211.) In April 2003 Flores complained of back

pain and shooting pain in his right leg. (Tr. 188.) His physician noted that an MRI in

February 2003 and a CT Scan showed no gross abnormalities; he determined that Flores

suffered from failed back surgery syndrome, radicular pain in his right leg, and lumbar

sympathetic arthropathy. (Tr. 190.) In 2004 diagnostic studies showed significant facet

degenerative joint disease at the L4-5 level, a bulging disc at the L3-4 level, and a right L5-

S1 radiculopathy. (Tr. 571, 713, 757.) Physicians continued to diagnose Flores with failed

back surgery syndrome and treated his pain with medications, including hydrocodone, and

with other conservative measures. (Tr. 258, 270, 282, 722, 727-28.) 

The Administrative Law Judge (ALJ) determined that Flores’ problems with his left

shoulder and back were severe impairments but that his testimony regarding his pain and

functional limitations was not credible and that he was capable of performing sedentary jobs
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with a sit/stand option and that he was not disabled. (Tr. 391-92.) 

III. Discussion

Flores contends the ALJ failed to properly consider the evidence. He specifically

complains of the ALJ’s rejection of an opinion from his treating physician and of the ALJ’s

rejection of his allegations of pain. In regard to the physician’s opinion, Flores complains

the ALJ rejected the physician’s opinion on grounds that the record lacked evidence of

neurological abnormalities. He contests the ALJ’s conclusion and points to evidence of

atrophy, radiculopathy, sensory and motor loss, and nerve root compromise. 

The ALJ did not err. A treating physician’s opinion is not conclusive; responsibility

for determining a claimant’s disability status lies with the Commissioner. Myers v. Apfel,

238 F.3d 617, 621 (5th Cir. 2001). Therefore, when good cause is shown, the ALJ may

assign little or no weight to a treating physician’s opinion. Id. (citing Greenspan v. Shalala,

38 F.3d 232, 237 (5th Cir. 1994)). Good cause may exist when the treating physician’s

opinion is conclusory, unsupported by medically acceptable clinical, laboratory, or diagnostic

techniques, or is otherwise unsupported by the evidence. Greenspan, 38 F.3d at 237. 

The opinion at issue in this case is a “Physical Residual Functional Capacity

Questionnaire” completed by Chad Gray, M.D. (Tr. 659-64, 671.) Dr. Gray indicated on the

form that Flores suffered from failed back surgery syndrome and right radiculopathy and pain

and weakness in his right leg. (Tr. 659.) He indicated that Flores was capable of sitting and

standing no more than thirty minutes at a time. (Tr. 661.) He indicated, however, that this

opinion was based on Flores’ subjective report. Id. He also indicated that Flores was
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capable of standing/walking less than two hours in an eight-hour workday, that he would

need to take unscheduled breaks during the workday, that he was capable of lifting less than

ten pounds occasionally, and that his impairments or treatment would require him to be

absent from work more than three times per month. (Tr. 661-63.) In regard to a question as

to how often and long Flores would need to walk, Dr. Gray indicated that he could not

answer the question accurately. (Tr. 662.) In regard to a question regarding whether Flores

would need to elevate his legs during prolonged sitting, Dr. Gray wrote, “unknown.” Id. In

regard to a question concerning Flores’ ability to use his arms, hands, and fingers, he wrote,

“cannot answer.” (Tr. 663.) 

The ALJ noted the “good cause exceptions” and cited medical evidence that was

contrary to Dr. Gray’s opinion. He noted, for example, that Dr. Gray had indicated in other

records that an MRI scan in 2003 showed no abnormalities and that an MRI scan in

March 2004 was negative for acute abnormalities. (Tr. 389; see Tr. 188, 568.) The ALJ also

noted that on March 26, 2004, nearly three months before Dr. Gray completed the form at

issue, the physician noted that Flores was “doing very well” and was taking less pain

medication, and that he was intact neurologically. (Tr. 389; see Tr. 738.) Although Flores

points to other evidence indicating that he suffered from neurological abnormalities, other

evidence shows that he did not. For example, Dr. Gray noted on August 21, 2003, that Flores

had not experienced a decrease in neurological function. (Tr. 282.) It was noted on

June 3, 2004, that Flores exhibited 4/5 strength in his right lower extremity and 5/5 strength

in his left lower extremity, and this assessment was confirmed by electromyography.
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(Tr. 672, 699-700.) In a case in which the evidence indicates a mixed record concerning a

claimant’s health problems and limitations upon his ability to work, it is the ALJ’s

responsibility to weigh the evidence; the court is then charged with determining whether

there is substantial evidence in the record as a whole to support the ALJ’s determination.

Chambliss v. Massanari, 269 F.3d 520, 523 (5th Cir. 2001) (citation omitted). Substantial

evidence supports the ALJ’s determination. 

The ALJ did not err in assessing Flores’ credibility. The responsibility for

determining whether pain is disabling lies with the ALJ and his decision in this regard is

entitled to considerable judicial deference. Chambliss, 269 F.3d at 522; Hollis v. Bowen, 837

F.2d 1378, 1384 (5th Cir. 1988) (citing Jones v. Bowen, 829 F.2d 524, 527 (5th Cir. 1987)).

However, the ALJ must indicate the degree to which he finds the claimant’s testimony

credible and, in cases in which an ALJ discredits a claimant’s testimony, he must indicate the

basis for his decision. Abshire v. Bowen, 848 F.2d 638, 642 (5th Cir. 1988); Scharlow v.

Schweiker, 655 F.2d 645, 649 (5th Cir. 1981); see also S.S.R. 96-7p, WL 374186 (the ALJ’s

decision must include findings that are “sufficiently specific to make clear to the individual

and to any subsequent reviewers the weight the adjudicator gave to the individual’s

statements and the reasons for that weight). 

The ALJ concluded that Flores’ testimony was not credible and provided a number

of reasons for his conclusion. The ALJ noted that there was “little in the way of neurological

deficits or any muscle wasting.” (Tr. 390.) The ALJ’s finding is correct. A physician noted

“some atrophy” in Flores’ right extremity (Tr. 851), but other physicians noted that motor
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function and motor strength were within normal limits. (Tr. 189, 211, 991). The ALJ also

noted that Flores used a cane at the hearing, but that there was no record of a physician

prescribing the cane and there was no evidence of muscle atrophy characteristic of consistent

cane usage. (Tr. 390.) The record supports this conclusion. (Tr. 672.) Finally, the ALJ

noted that Flores was not using the cane at the hearing in a manner appropriate for a person

complaining of right leg pain; he noted that Flores used the cane on his left side rather than

on his right side. (Tr. 390.) Flores does not dispute this conclusion. 

The ALJ also noted that the medical records did not support Flores’ testimony that he

burned himself with a heating pad because he had lost sensation in his back. (Tr. 388.)

The ALJ is correct. The record includes notations of loss of pain sensation in Flores’ left leg

and a decrease in sensory abilities in his right leg. (Tr. 189, 805, 812.) The medical records

do not, however, demonstrate sensory loss in Flores’ back. (See, e.g., Tr. 690, 771, 777, 779,

991.) Finally, the ALJ noted that inconsistency between Flores’ testimony regarding his

appetite and the medical records materially harmed Flores’ credibility. (Tr. 387.) Flores

testified that he had a “very poor” appetite and that he had lost twenty-five pounds, but

subsequent records showed that he was on a diet to lose weight. (Tr. 189, 387, 398.)

In addition, the records show that on August 21, 2003, Flores was measured at five feet six

inches tall and weighed 205 pounds; he weighed 209 pounds on January 12, 2004; and he

weighed 211 pounds on May 21, 2004. (Tr. 310, 695, 779.) As the ALJ found, Flores’

testimony regarding his appetite is contradicted by the records and calls into question his

credibility. 
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Finally, Flores complains that the ALJ discounted his allegations of pain on grounds

that records from 2004 and 2005 reflected that he underwent pain management only and that

he failed to consider evidence of his inability to pay for any other types of treatment or

procedures. Flores is incorrect. The ALJ merely noted that the records from 2004 and 2005

contained documentation of Flores’ subjective complaints and the medications prescribed to

treat his pain but did not include evidence that would establish medical abnormalities.

(Tr. 389.) 

 The ALJ’s decision should stand. Flores’ own testimony supports the ALJ’s decision

that he can perform sedentary work with a sit/stand option. Flores testified that he read the

newspaper and watched television during the day. (Tr. 418-19.) He testified that he used a

cane and experienced difficulty reaching with his left arm, but he also testified that he was

right-handed. (Tr. 422-23.) He testified that he could walk approximately one-quarter block,

stand for approximately fifteen minutes, sit for approximately fifteen minutes before needing

to change positions, and lift approximately ten pounds. Id. Flores’ testimony, together with

the objective medical evidence, provides substantial evidence to support the ALJ’s ultimate

conclusion.

IV. Recommendation

Based on the foregoing discussion of the issues, evidence and the law, this court

recommends that the United States District Court affirm the Commissioner’s decision and

dismiss Flores’ complaint with prejudice. 
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V. Right to Object

Pursuant to 28 U.S.C. § 636(b)(1), any party has the right to serve and file written

objections to the Report and Recommendation within ten days after being served with a copy

of this document. The filing of objections is necessary to obtain de novo review by the

United States District Court. A party’s failure to file written objections within ten days shall

bar such a party, except upon grounds of plain error, from attacking on appeal the factual

findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto

Ass’n, 79 F.3d 1415, 1429 (5th Cir. 1996) (en banc).

Dated: December 19, 2007.

______________________________________

NANCY M. KOENIG

United States Magistrate Judge