07-51211

* 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 R. 47.5, the court has determined that this opinion should not be published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. 07-51211

Summary Calendar

GLORIA J PINEDA

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. 5:06-CV-844

Before REAVLEY, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Gloria Pineda appeals the denial of her claim for disability and

supplemental security income benefits. The Social Security Administration

denied her applications for benefits both initially and upon reconsideration.

After a hearing, an Administrative Law Judge (“ALJ”) determined that Pineda

was not disabled. The Appeals Council denied her request for review, making

the determination of the ALJ the final decision of the Commissioner of Social

United States Court of Appeals

Fifth Circuit

F I L E D

August 11, 2008

Charles R. Fulbruge III

Clerk
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2

Security Administration. The district court affirmed, and we now do the same.

Pineda alleges that she is disabled mainly due to back, right shoulder, and

neck pain and impairment. She claims a disability onset date of March 19, 2002.

There is a five-step sequential procedure for making a disability determination

under the Social Security Act. This procedure was set forth in Crowley v. Apfel,

197 F.3d 194 (5th Cir. 1999):

The Social Security Act defines “disability” as the “inability 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.” To

determine whether a claimant is disabled, and thus entitled to

disability benefits, a five-step analysis is employed. First, the

claimant must not be presently working at any substantial gainful

activity. Second, the claimant must have an impairment or

combination of impairments that are severe. An impairment or

combination of impairments is “severe” if it “significantly limits [a

claimant’s] physical or mental ability to do basic work activities.”

Third, the claimant’s impairment must meet or equal an

impairment listed in the appendix to the regulations. Fourth, the

impairment must prevent the claimant from returning to his past

relevant work. Fifth, the impairment must prevent the claimant

from doing any relevant work, considering the claimant’s residual

functional capacity, age, education, and past work experience. At

steps one through four, the burden of proof rests upon the claimant

to show he is disabled. If the claimant acquits this responsibility,

at step five the burden shifts to the Commissioner to show that

there is other gainful employment the claimant is capable of

performing in spite of his existing impairments. If the

Commissioner meets this burden, the claimant must then prove he

in fact cannot perform the alternate work.

Id. at 197–98 (internal footnotes omitted). In relevant part, the ALJ found that

Ms. Pineda is not presently working at any substantial gainful activity, she has
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a combination of impairments that are severe, these impairments do not meet

or equal the listed impairments, she has no past relevant work activity, and she

retains the residual functional capacity (RFC) to perform light exertional work,

with the additional restrictions of no more than occasional bending, stooping,

crouching, kneeling, and crawling; with no frequent, repetitive gross right arm

movements. Most importantly, the ALJ found that given her RFC, age,

education, and past work experience, Ms. Pineda can perform other jobs existing

in significant numbers in the national economy. Based on these findings, the

ALJ determined that Ms. Pineda was not “disabled,” as defined in the Social

Security Act.

The Commissioner’s determination that Pineda was not disabled because

she could perform available jobs must be affirmed unless that determination is

either not supported by substantial evidence or involved an erroneous

application of legal standards. Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000).

Pineda maintains that the ALJ’s determination of her RFC was not

supported by substantial evidence and that the ALJ applied incorrect legal

standards. Contrary to Pineda’s argument, the ALJ properly assessed her RFC

by considering all of the relevant evidence, including the opinions of examining

and non-examining physicians, as well as the combination of all of her alleged

impairments. He carefully reviewed the objective medical evidence. The ALJ

also specifically acknowledged that in making the RFC assessment he must and

did “consider all symptoms, including, pain, and the extent to which these

symptoms can reasonably be accepted as consistent with the objective medical

evidence and other evidence based on the requirements of 20 C.F.R. § 416.929

and Social Security Rule 96-7p.” In sum, the ALJ applied the proper legal

standards in determining Pineda’s RFC.
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Specifically, Pineda argues that the ALJ failed to accord proper weight to

the opinions of treating and examining physicians. We reject this argument.

The opinion of a treating physician who is familiar with the claimant’s

impairments, treatments, and responses should be accorded great weight in

determining disability. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). But

the treating physician’s opinions are not conclusive. Id. The ALJ has sole

responsibility for determining disability status, and “the ALJ is free to rejectthe

opinion of any physician when the evidence supports a contrary conclusion.” Id.

(internal quotation marks omitted). The opinions may be assigned little or no

weight when good cause is shown. Good cause may permit discounting the

weight of a treating physician relative to other experts where the treating

physician’s evidence is conclusory, is unsupported by medically acceptable

clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the

evidence. Id. at 455–56. A treating physician’s opinion can also be rebutted

when there is competing first-hand medical evidence, or if there is other medical

evidence from physicians who have treated or examined the claimant and have

specific medical bases for a contrary opinion. See id. at 458.

Here, as the ALJ properly noted, the record does not contain any specific

opinions from treating or examining physicians, based on objective evidence,

indicating that Ms. Pineda has limitations greater than those determined by the

ALJ. To the extent that the isolated opinions of various physicians and experts

are in tension with one another,the ALJ was justified in accepting the testimony

and findings of some over others. For example, Ms. Pineda says that the ALJ’s

findings with respect to her RFC did not sufficiently account for the severity of

her cervical spine impairment, as it was described by particular treating
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physicians. But in 2002 an examining physician, Dr. Misra, provided a clinic

impression of Pineda’s medical condition that revealed little more than a cervical

strain, with her extremity strength and reflexes normal. In 2004, Dr. Misra

found that although there was tenderness in the cervical spine, Pineda’s motor

strength and deep tendon reflexes were normal. Notably, Dr. Jones, the

consultative examiner, also opined in 2004 that Pineda had full motion of the

cervical spine and that she was capable of medium level work activity. See

Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (holding that in certain

circumstances the ALJ can choose the opinion of a consultant who examined the

claimant over the opinion of a treating physician). Finally, Dr. Cox, a testifying

medical expert, said that although an MRI indicated that Pineda was subject to

mild to moderate disc herniation in the cervical spine and mild degenerative

changes in the lumbar spine, she was capable of performing light work activity.

Pineda argues that the ALJ’s determinations with respect to her neck,

shoulder, back, and knee impairments also were not supported by substantial

evidence. For example, she says that the ALJ did not properly address her knee

and lower back impairments. But this assertion is not supported by the record.

Dr. Singh, who examined the claimantin 2002, noted that back pain complained

of earlier had improved by December 2002. Neither Dr. Singh nor Dr. Misra

suggested that any problem with the plaintiff’s lower back or her knee was a

severe impairment. Dr. Jones stated that plaintiff had mild bilateral knee varus

but indicated that this did not preclude her from kneeling frequently and, in

fact, the ALJ imposed a limitation of only occasional kneeling. Dr. Jones noted

markedly increased lumbar lardosis, yet he found that she could work at the

medium exertional level. When considering the record as a whole, there was
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substantial evidence to support all of the ALJ’s findings and his determination

of Pineda’s RFC. 

Pineda also argues that the ALJ’s decision that she can perform work

existing in significant numbers in the national economy is not support by

substantial evidence. In response to a hypothetical question posed by the ALJ

that correctly incorporated Pineda’s RFC, age, education, and past work

experience, a vocational expert testified that Pineda could work as a hand

packer, office cleaner, or laundry folder. Based on the evidence in record and the

vocational expert’s testimony, the ALJ determined that there were jobs for

Pineda in the national economy. Pineda argues that the ALJ erred because

some ofthe jobs the vocational expert said she could perform are described in the

Dictionary of Occupational Title (DOT) as having exertional requirements that

exceed her capabilities. 

Substantial evidence supported the ALJ determination that Pineda could

perform jobs that exist in significant numbers in the national economy. As an

initial matter, we note that an ALJ utilizes vocational experts because of their

knowledge of job requirements and working conditions. Vaughan v. Shalala, 58

F.3d 129, 132 (5th Cir. 1995). Here, the ALJ correctly described Pineda’s

limitations to the vocational expert, so we should accord weight to his testimony

delineating jobs that met Pineda’s exertional and other capabilities. Pineda

argues that there is not substantial evidence for the ALJ’s determination

because at least some of the jobs that roughly correspond to those identified by

the vocational expert are described in the DOT as exceeding her exertional level.

But these supposed conflicts do not create reversible error here. The record as

a whole supports the ALJ’s determinations. Moreover, claimants cannot scan

the record for implied conflicts between the specific testimony of an expert
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witness and the voluminous provisions of the DOT and then present these

apparent conflicts as reversible error, at least when as here the claimant’s

counsel did not explore the supposed conflicts when cross-examining the

vocational expert. See Carey, 230 F.3d at 146–47. 

Finally, we reject Pineda’s argument that the ALJ’s determination that

her testimony was not credible was not based on the proper legal standard. In

judging the claimant’s credibility, the ALJ can consider such things as medical

reports, the claimant’s daily activities, and the medications the claimant is

taking. Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991). The ALJ must

weight the objective medical evidence and assign articulated reasons for

discrediting the claimant’s subjective complaints. Falco v. Shalala, 27 F.3d 160,

163 (5th Cir. 1994). But it is not required that the ALJ follow formalistic rules

in evaluating credibility. Id. at 164. Here, the ALJ evaluated the intensity and

persistence of Pineda’s alleged symptoms. His decision reflects that he

considered all of the relevant factors as delineated in the case law and

regulations. There is more than substantial evidence in the record to support

the ALJ’s determination to accord limited weight to Pineda’s complaints of

disabling plain. 

AFFIRMED.