* 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that this opinion should not be published and is not precedent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.

United States Court of Appeals

Fifth Circuit

FILED

October 29, 2003

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 03-10222

Summary Calendar

 

CECIL W NALL

Plaintiff - Appellant

v.

JO ANN B BARNHART, COMMISSIONER OF SOCIAL SECURITY

Defendant - Appellee

--------------------

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:02-CV-00259-A

--------------------

Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.

PER CURIAM:*

Cecil W. Nall appeals the affirmance of the Social Security

Commissioner’s denial of his application for disability benefits. 

Nall first argues that substantial evidence did not support the

administrative law judge’s (ALJ’s) assessment of his residual

functional capacity for light work. He argues that the ALJ erred

by not explicitly stating that Nall could maintain light work for

40 hours per week. The ALJ’s resolution of this issue was

subsumed in the analysis regarding Nall’s ability to return to
No. 03-10222

-2-

light work and was supported by substantial evidence. See Frank

v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003). 

Second, Nall argues that the ALJ failed to give appropriate

weight to the opinion of his treating physician. He also argues

that the ALJ had a duty to seek clarification before giving his

doctor’s opinion little or no weight. Because the opinion of his

treating physician was contradicted by other medical evidence

based on personal examination of Nall, the ALJ did not err in

giving the opinion little or no weight without seeking

clarification. See Newton v. Apfel, 209 F.3d 448, 453 (5th Cir.

2000); see also Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.

1994).

Third, Nall argues that the ALJ erred in evaluating the

level of exertion required to perform his past relevant work. 

Nall did not raise this issue below; review is therefore limited

to plain error. See Kinash v. Callahan, 129 F.3d 736, 739 n.10

(5th Cir. 1997). Because Nall has not argued that he is

completely unemployable, he has not shown that he is disabled

within the meaning of the Social Security Act and cannot prevail

under the plain error standard. 42 U.S.C. § 423(d)(1)(A);

Kinash, 129 F.3d at 739 n.10.

Nall last argues that the ALJ erred in finding that his

testimony was not credible, to the extent that he alleged that he

is completely unable to perform any work activity. He argues

that the ALJ failed to apply the factors enumerated in Social
No. 03-10222

-3-

Security Regulation 96-7P. The ALJ applied five of the seven

listed factors in his analysis. Any failure to apply the

remaining two constitutes harmless error as Nall has not alleged

that they apply to his condition. See Frank, 326 F.3d at 622;

see also 1996 WL 374186 (SSR 96-7P). Moreover, substantial

evidence supports the ALJ’s credibility determination and is

therefore entitled to judicial deference. See Villa v. Sullivan,

895 F.2d 1019, 1024 (5th Cir. 1990). The district court’s order

affirming the Commissioner’s denial of benefits to Nall is

AFFIRMED.