* Pursuant to Local 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this opinion should not be published and is not precedent except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 Local Rule 47.5.4.

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-11061

LATISA SKALIJ,

Plaintiff-Appellant,

VERSUS

SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

For the Northern District of Texas

(4:94-CV-361)

December 4, 1996

Before JOLLY, JONES, and PARKER, Circuit Judges.

PER CURIAM:*

Latisa Skalij (“Skalij”) appeals the district court’s order

granting summary judgment in favor of the Commissioner of Social

Security (“Commissioner”), thereby affirming the Commissioner’s

denial of Skalij’s application for supplemental security income
2

(“SSI”) benefits. For the following reasons, we affirm.

FACTS AND PROCEEDINGS BELOW

Skalij applied for SSI benefits, alleging that a back and neck

injury prevented her from being gainfully employed. Her claim was

denied both initially and on reconsideration. Skalij then

requested a hearing before an administrative law judge (“ALJ”). At

the hearing before the ALJ, Skalij alleged disability due to

depression as well as due to her previously alleged back and neck

injury. The ALJ ordered that Skalij undergo psychiatric evaluation

and psychological testing. After receiving two psychiatric and

psychological diagnoses, the ALJ issued a decision finding that

Skalij was not disabled and denying her claim for SSI benefits. 

Skalij requested review by the Appeals Council. The Appeals

Council remanded the case to the ALJ for testimony from a

vocational expert and to make more thorough findings. After a

supplemental hearing, the ALJ again issued a decision finding that

Skalij was not disabled and denying her claim for benefits.

Skalij requested another review by the Appeals Council and she

attached to her request new evidence concerning her psychiatric

condition. The Appeals Council denied her request for review.

Skalij then filed suit in district court, seeking review of the

Commissioner’s decision. She again attached the new evidence

concerning her psychiatric condition. In granting the Commissioner

summary judgment, the district court affirmed the Commissioner’s
3

denial of SSI benefits. Skalij now appeals to this Court.

DISCUSSION

A. The Commissioner’s Decision

At the hearing before the ALJ, Skalij had the burden of

proving a medically determinable physical or mental impairment

lasting at least twelve months which prevents her from engaging in

substantial gainful activity. See 42 U.S.C. § 423(d)(1)(a).

Substantial gainful activity is defined as work activity involving

significant physical or mental abilities for pay or profit. 20

C.F.R. § 404.1572. The claimant must also show that she is no

longer capable of performing her current or past relevant work. 20

C.F.R. § 404.920(e). If the claimant satisfies this burden, then

the Commissioner must show that the claimant is capable of engaging

is some type of substantial activity and that other jobs exist for

the claimant in the national economy. Ferguson v. Schweiker, 641

F.2d 243, 246 (5th Cir. 1981). Once the Commissioner makes such a

showing, the burden of proof shifts back to the claimant to rebut

this finding. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).

The ALJ uses a five-step sequential process to make

determinations of disability for SSI benefits. The ALJ determines

(1) if the claimant is not working in a substantial gainful

activity, (2) whether the claimant has a severe impairment, (3) if

the claimant’s impairment meets or equals a listed impairment in

Appendix 1 of the regulations, (4) if the impairment prevents the
1 Skalij does not challenge the Commissioner’s finding that her back

and neck injury did not render her disabled.

4

claimant from doing past relevant work, and (5) whether the

impairment prevents the claimant from doing any other work. See 20

C.F.R. § 416.920.

Our review of a denial of disability benefits is limited to

two inquiries: (1) whether substantial evidence supports the

Commissioner’s decision, and (2) whether the decision of the

Commissioner comports with relevant legal standards. Carrier v.

Sullivan, 944 F.2d 243, 245 (5th Cir. 1991). Substantial evidence

is more than a mere scintilla of evidence, but less than a

preponderance of the evidence. Villa v. Sullivan, 895 F.2d 1019,

1021-22 (5th Cir. 1990). A finding of no substantial evidence is

appropriate only if there are no credible evidentiary choices or

medical findings to support the decision. Johnson v. Bowen, 864

F.2d 340, 343-44 (5th Cir. 1988). We may neither reweigh the

evidence in the record nor substitute our judgment for the

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

1988).

Skalij contends that the Commissioner’s decision regarding her

mental impairment is not supported by substantial evidence.1 In

support of her contention, she points to her somewhat contradictory

psychological evaluations. Because the claimant has the burden of

establishing the existence of a disability, Skalij has the burden
2 After the supplemental hearing, Skalij submitted a second assessment

form from this same physician reflecting different conclusions. In this

second assessment form, the physician ranked Skalij as having “poor or no

ability” in some of the work-related ability categories. However, unlike

this physician’s first assessment, this second assessment was not

accompanied by any medical findings or documentation, and thus lacked an

explanation for the changed assessment. As we have previously held, it is

not error for an ALJ to disregard conclusory medical opinions not supported

by evidence. Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995). 

5

of showing that the Commissioner’s decision is not supported by

substantial evidence in the record. Scharlow v. Schweiker, 655

F.2d 645, 648 (5th Cir. 1981). 

We find that substantial evidence in the record supports the

ALJ’s finding that Skalij’s impairment did not prevent her being

gainfully employed. Skalij underwent two psychiatric evaluations.

In the first, the physician evaluated Skalij in various categories

relating to work-related functions as good, fair, above average,

and average. Supporting medical records and documentation

accompanied his evaluation.2 In a second assessment, a different

physician ranked Skalij in the same categories as fair and “poor to

no ability” and noted that medical intervention might eliminate

some of her symptoms. The ALJ found that the first evaluation

should be given more weight. Credibility is generally accorded to

the ALJ as the finder of fact, and his credibility evaluation is

entitled to deference. Carrier v. Sullivan, 944 F.2d 243, 247 (5th

Cir. 1991); Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991).

The Commissioner is entitled to determine the credibility of

medical experts and to weigh their opinions accordingly. Moore v.
6

Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). In fact, it is well

established that it is for the Commissioner, and not the courts, to

choose between conflicting medical opinions. Bradley v. Bowen, 809

F.2d 1054, 1057 (5th Cir. 1987); Jones v. Heckler, 702 F.2d 616,

621 (5th Cir. 1983).

At the supplemental hearing held by the ALJ, a vocational

expert testified that a person of Skalij’s age and education, whose

functional capacity required her to sit and stand at will, with no

greater than light exertional demands, and with limited exposure to

the public, could perform simple assembly jobs, of which there were

many available in the local economy. The first psychiatric

examination together with the vocational expert’s testimony provide

substantial evidence to support the decision of the Commissioner.

B. Consideration of New Evidence

Skalij next argues that the district court erred in refusing

to remand Skalij’s claim for consideration in light of her new

evidence. We may remand an SSI claim to the Commissioner for

consideration of evidence presented for the first time during

judicial review only when (1) the evidence is new and material, and

(2) there is good cause for the failure to incorporate the evidence

into the administrative record. 42 U.S.C. § 405(g); Latham v.

Shalala, 36 F.3d 482, 483 (5th Cir. 1994). New evidence is

material only if it relates to the time period for which the

disability benefits were denied, and there is a reasonable
7

probability that such evidence would alter the Commissioner’s

decision. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). To

demonstrate “good cause,” the claimant must provide an excusable

explanation for not submitting the records earlier in the

proceeding. Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989)

(reviewing good cause). 

Skalij presented a significant amount of medical evidence for

the first time to the district court. This evidence included

medical records of testing and treatment by physicians and a diary

kept by Skalij. Even assuming arguendo that this evidence is

material, Skalij has not shown good cause for her failure to submit

the evidence during the course of the administrative proceedings.

A cover letter accompanying the new evidence is dated a date prior

to the Appeals Council’s second review. Skalij offers as

explanation for her failure to incorporate this evidence into the

administrative record only the explanation that the records were

misfiled in her attorney’s office. This explanation is

insufficient. See Id. Accordingly, we hold that the district

court did not err in refusing to remand Skalij’s claim to the

Commissioner for consideration of the new evidence.

CONCLUSION

For the foregoing reasons, we AFFIRM.