* 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. 07-51176 

Summary Calendar

LARRY WEIMER, 

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. 1:06-CV-744

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Larry Weimer appeals the district court’s decision

upholding the Commissioner’s denial of his claim for Disability Insurance

Benefits (“DIB”) and Supplemental Security Income (“SSI”) payments under

Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 423 and

1382c(a)(3). For the following reasons, we AFFIRM.

United States Court of Appeals

Fifth Circuit

F I L E D

July 1, 2008

Charles R. Fulbruge III

Clerk
No. 07-51176

2

A. Factual and Procedural Background

The record indicates that Weimer is a high school graduate with one year

of post-secondary education. He underwent treatment for a number of ailments

beginning in April 1997, after he was involved in a vehicle collision which

resulted in injuries to his right elbow and his cervical vertabrae. Before the

collision, Weimer was a school and commercial bus driver for a number of years.

Weimer’s treating physician for his elbow injury was Dr. Carolyn M. Hyde,

who treated Weimer from April 9, 1997 until January 27, 1999. On January 28,

1998, Dr. Hyde completed a “Texas Rehabilitation Commission Vocational Rehab

Division assessment of residual functioning capacity.” In the assessment, she

concluded that Weimer: (1) had a grade III open complex interacticular fracture

of the right distal humerus; (2) had the potential for arthritis and permanent

weakness, as well as limited motion of the right elbow; (3) had a cervical spine

fracture, which was treated by Dr. Matthew Hummell; (4) had incomplete

flexion/extension of the right elbow and some limitation in neck motion, which

might effect his ability to drive; (5) could perform standing and sitting up to

seventy-five percent of the time; (6) could walk up to one mile; (7) could climb

two flights of stairs; and (8) could bend limitedly. In March 1998, Dr. Hyde’s

records showed that despite some moderate pain, there was significant

improvement to Weimer’s right elbow, as well as improvements in other areas.

Dr. Hyde indicated that Weimer was “relatively functional” and that he “seemed

to be satisfied with the plan to retrain him for other work.” Dr. Hyde

documented continued improvements in Weimer’s elbow until his last visit in

January 1999. At that time, Dr. Hyde stated that he “is off work for any kind of

manual labor until I see him back in three months. It would be preferable that

he complete his training in school and get a nonphysical and nonmanual job

before I would release him to work.” This record reveals that this was the last
No. 07-51176

3

contact that Weimer had with a physician before seeking DIB and SSI on March

4, 2003.

In Weimer’s applications for DIB and SSI, he alleged a disability onset

date of April 1, 2001. He listed a neck injury, a right arm injury, ulcers,

Charcot-Marie-Tooth disease, and a broken right collar bone as the illnesses,

injuries, or conditions limiting his ability to work. According to Weimer, these

impairments prevented him from climbing, riding a bicycle, or using a tractor

trailer. In addition, he stated that his right arm could not lift more than twenty

pounds nor move in a turning motion. He also stated that he could not drive and

that his balance is off when he sits or squats. He indicated that the conditions

first bothered him on April 6, 1997, and that he became unable to work because

of these impairments on April 1, 2001. He noted that he worked intermittently

with a “rehab agency” but completely stopped working due to the listed

impairments on January 1, 2003. Weimer had an in-person interview with a

Social Security representative in March 2003. In the report from this interview,

the representative noted that Weimer stated repeatedly that he had not been to

a doctor since 1999, including the emergency room. 

On April 26, 2003, Weimer met with Dr. Jerrod Taylor for a consultive

exam. Weimer discussed his medical history with Dr. Taylor, including his

physical limitations as he saw them. Dr. Taylor concluded that Weimer’s

abdomen was normal and with no tenderness. He also noted that he had a

normal gait and station, that he was able to stand on heels and toes and bend

allthe way over and return to standing upright without difficulty,that his motor

strength was 5/5, and that his straight-leg raising was negative. On April 27,

2003, Weimer underwent an x-ray of his cervical spine; it revealed no evidence

of fractures or subluxations, though it did show degenerative disc disease at the

C4-C5 and C6-C7 levels. Dr. Taylor concluded that there was “no objective

findings to suggest significant amount of functional impairment.” He also stated
No. 07-51176

1 The record is unclear as to whether Weimer took ulcer medication at any time from

April 1997 though August 2003.

4

that Weimer could perform employment duties including sitting, standing,

ambulating, and lifting objects less than twenty pounds.

Thereafter, a number of physicians reviewed Dr.Taylor’s report and made

independent findings. Dr. Howard D. Bronstein concluded that Weimer had no

symptoms of an ulcer and noted that he was not on any ulcer medication.1

Similarly, Dr. Richard J. Gross reviewed Dr. Taylor’s report with regard to

Weimer’s complaints of ulcers and found no objective exam, x-ray, or endoscopic

evidence to demonstrate ulcer disease. He noted the abdominal exam Dr. Taylor

performed on Weimer was normal without any tenderness, and that Weimer had

not received any physician treatment for his ulcers since the time period from

1997 to 1999. Dr. Avigdor I. Niv concluded that there was no objective evidence

to support Weimer’s contention of Charcot-Marie-Tooth disease. He also found

no evidence of any musculoskeletal impairment to impact Weimer’s ability to

work. Dr. Reynaldo Salazar agreed that Weimer’s allegation of

Charcot-Marie-Tooth disease was not supported by the medical evidence

available. Dr. Salazar also concluded that Weimer’s allegations of neck and

right arm tenderness were not fully supported by the medical evidence in the

record or by an x-ray of the cervical spine. 

Weimer’s applications were denied. On July 9, 2003, he submitted a

“Reconsideration Disability Report,” explaining that his conditions had

worsened. Weimer was denied reconsideration on August 11, 2003. Thereafter,

during the time period of August 2003 through January 2004, he sought medical

treatment at the Austin/Travis County Community Health Centers for his

complaints of peptic ulcer disease, right arm pain, and knee pain. Weimer

requested a hearing before an ALJ, which was conducted on May 12, 2004.
No. 07-51176

5

Before the ALJ, Weimer testified that he had broken his hand several

times, which caused pain in cold weather. He indicated that he had broken his

shoulder in a bicycle accidentin 1976. He also stated that everyone in his family

had Charcot-Marie-Tooth disease, and that the disease caused him to have leg

cramps and a chest deformity. He testified that he was developing problems

with his knees which prevented him from squatting; his ankles caused him pain;

and he had gout in his feet. He testified that his neck injuries arose as a result

of the accident in 1997. He stated that his ulcers caused vomiting as well as

sensitivity to certain smells. In addition, Weimer testified that he could walk up

to a half-mile and “sit fine.” However, he stated that Dr. Hyde advised him not

to lift more than twenty pounds, and that he could not do sideways repetitive

motions because of his shoulder.

Donna Yeager, a vocational expert, testified before the ALJ regarding

Weimer’s past work experience and answered hypotheticals presented to her by

the ALJ. Yeager testified that Weimer’s past work as a bus driver would be

classified as semi-skilled and medium in exertional demands. The ALJ then

asked Yeager to consider, hypothetically, whether there is work available for an

individual who possesses the strength to perform a wide range of light work, but

could not perform repetitive reaching or rotation of the right arm, or rotate his

head from right to left more than 1/3 of the work day, and with the ability to

perform only one or two step tasks. Yeager testified that although such an

individual would be precluded from work as a bus driver, he could work as a

counter clerk, a cashier II, or an investigator of dealer accounts. She testified

that a substantial number of jobs in each field existed nationally and in Texas.

The ALJ found that Weimer was not entitled to DIB or SSI, based on her

conclusion that there were significant jobs in the national economy as well as in

Texas that Weimer could perform. The Appeals Council denied Weimer’s
No. 07-51176

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request for review. The district court affirmed the decision of the ALJ. Weimer

timely appeals.

B. Discussion

On appeal, Weimer argues the following: (1) the ALJ failed to properly

consider the opinion of his treating physicians; (2) the ALJ failed to take into

account certain impairments in determining his residual functioning capacity;

and (3) the ALJ failed to make a determination regarding whether he could

sustain employment.

Under the Social Security Act, 42 U.S.C. § 405(g), this Court’s review of

the Commissioner’s final decision is limited to determining whether substantial

evidence supports the final decision, and whether the proper legal standards

were used to evaluate the evidence. Waters v. Barnhart, 276 F.3d 716, 718 (5th

Cir. 2002). Where the Commissioner’s findings are supported by substantial

evidence, they are conclusive and must be affirmed. Newton v. Apfel, 209 F.3d

448, 452 (5th Cir. 2000). “Substantial evidence is more than a scintilla, less than

a preponderance, and is such that a reasonable mind might acceptit as adequate

to support a conclusion.” Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992).

While we must scrutinize the record to determine the reasonableness of the

decision reached by the ALJ, we must not reweigh the evidence, try the issues

de novo, or substitute our judgment for that of the ALJ’s. Id.

To evaluate a claim of disability, the ALJ conducts the following five-step

sequential inquiry: (1) if a claimantis engaged in substantial gainful activity, he

will not be found disabled regardless of the medical findings, 20 C.F.R §

404.1520(b); (2) a claimant who does not have a “severe impairment” will not be

found to be disabled, 20 C.F.R § 404.1520(c); (3) a claimant who meets the

criteria in the list of impairments in Appendix 1 of the regulations will be

considered disabled without consideration of vocational factors, 20 C.F.R §

404.1520(d); (4) if a claimant can still perform his past work, he is not disabled,
No. 07-51176

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20 C.F.R § 404.1520(e); and (5) if a claimant’s impairment prevents him from

performing his past work, other factors including age, education, past work

experience, and residual functional capacity must be considered to determine if

other work can be performed, 20 C.F.R. § 404.1520(f). In evaluating Weimer’s

claim under this five-step inquiry the ALJ determined that steps one through

four were met. However, the ALJ determined that based on a review of “all of

the medical opinions in the record regarding the severity of claimant’s

impairment,” Weimer had residual functional capacity sufficient “to perform a

wide range of light work.”

Weimer first contends that the ALJ failed to properly consider the opinion

of his treating physician. We disagree. This Court has consistently

acknowledged that the opinion of the treating physician is entitled to great

weight. See 20 C.F.R. § 404.1527(d)(2); Greenspan v. Shalala, 38 F.3d 232, 237

(5th Cir. 1994). Here, the ALJ not only summarized the medical evidence

contained in Dr. Hyde’s reports, but she also specifically indicated that her

residual functional capacity assessment was based on the opinion of Dr. Hyde.

In particular, the ALJ determined that:

[Weimer can] occasionally lift 20 pounds, frequently lift

10 pounds, stand/walk 6 hours in an 8-hour workday,

and sit 6 hours in an 8-hour workday. The claimant

should avoid repetitive reaching and rotation of right

arm with limited rotation of the head. The claimant

has the ability to perform simple, unskilled 1-2 step

repetitive tasks. This opinion is based on the opinion of

Dr. Hyde.

This finding is consistent with Dr. Hyde’s January 1999 assessment, which was

the last time Dr. Hyde met with Weimer regarding his ability to work. Because

the ALJ’s determination of Weimer’s residual functioning capacity relied heavily

on the opinion of his treating physician, Weimer’s contention thatthe ALJ failed

to accord proper weight to Dr. Hyde’s opinion is without merit. 
No. 07-51176

8

Second, Weimer asserts that the ALJ failed to consider certain

impairments identified by his treating physicians, specifically Dr. Hyde.

Contrary to Weimer’s assertion, the ALJ’s decision specifically discussed Dr.

Hyde’s reports and, as noted above, the ALJ stated that her determination of

Weimer’s residual functional capacity was based on the opinion of Dr. Hyde. In

support of his position, Weimer also directs this Court’s attention to a few brief,

generally illegible notations in the hundreds of pages of medical documentation

contained in the record. This evidence shows that Weimer sought treatment

from the Austin/Travis County Community Health Center for complaints of

peptic ulcers, right arm pain, and knee pain during the period from August 2003

to January 2004. According to Weimer, these notations support his contention

that he suffers from ulcers, arthritis, and knee and hand impairments. 

The ALJ acknowledged that Weimer may experience some pain, but

concluded that the severity was not as great as Weimer had testified and that

his allegations of Charcot-Marie-Tooth disease and ulcers were not supported by

the totality of the medical evidence. See Chambliss v. Massanari, 269 F.3d 520,

522 (5th Cir. 2001) (noting that “[s]ubjective complaints of pain must also be

corroborated by objective medical evidence”). Our review of the record reveals

that substantial evidence supports the ALJ’s decision. Weimer did not present

any evidence to substantiate his claim that he has Charcot-Marie-Tooth disease.

Dr. Taylor’s findings do not support Weimer’s allegations of ulcers, and after a

physical examination of Weimer, he also concluded that there were“no objective

findings to suggest a significant amount of functional impairment. His ability

to perform employment duties that would include sitting, standing, ambulating,

and the lifting of objects less than twenty pounds appears to be grossly intact.

His cognition and motor skills are also normal.” These conclusions are also

consistent with Dr. Hyde’s opinion. Accordingly, based on this record, we cannot

conclude that the ALJ’s determination was unreasonable.
No. 07-51176

2 However, it should be noted that Weimer’s representative was present when the ALJ

questioned Yeager, but did not attempt to correct any perceived deficiencies in the ALJ’s

hypothetical questions. Weimer himself was also present.

3 Specifically, the ALJ asked Yeager the following question:

The first hypothetical I want you to consider assumes the

strength to perform a wide range of light work. However, there

would be, with respect to the right arm, no repetitive reaching

or rotation of the right arm. In addition, the hypothetical

9

Weimer next contends that because the ALJ erred in determining his

residual functional capacity,the ALJ’s finding thatthere are jobs in the national

economy that he could perform is also improper. Because we have already

determined that the ALJ’s finding regarding Weimer’s residual functional

capacity is supported by substantial evidence, this Court need only determine

whether the ALJ properly determined that there are jobs in the national

economy that Weimer can perform. We conclude that she did. In the present

case, the ALJ’s finding that Weimer could perform jobs in the national economy

was based on a hypothetical question presented to a vocational expert. This

Court has created a two-parttestfor determining whether an ALJ’s hypothetical

question constitutes reversible error: first, the question must include all

disabilities of the claimant recognized by the ALJ; and second, the claimant or

his representative should be allowed to correct deficiencies in the ALJ’s question.

Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). Here, we need not reach

the second prong of this test because we find that the hypothetical question

posed by the ALJ reasonably incorporates the disabilities recognized by the

ALJ.2 Specifically, the ALJ determined that Weimer could perform light work,

which involves lifting no more than 20 pounds at a time and frequent carrying

of objects weighing up to 10 pounds; he should avoid repetitive reaching and

rotation ofthe right arm with limited rotation of the head; and he has the ability

to perform simple, unskilled, one or two step repetitive acts. The hypothetical

questions included each of these factors.3 Cf. Morris v. Bowen, 864 F.2d 333, 336
No. 07-51176

individual would, with respect to rotation of the head, would

perform no, no more than occasional or up to 1/3 of the day of

rotating the head to the right and the left. In other words, the

plaintiff would visually affix on a, an object in front of the

workstation and not laterally. . . . And finally the hypothetical

individual would perform one or two step repetitive tasks to

address a possible non-exertionalimpairmentthatwe mightfind

out about later. Given these limitations, would any past work

be available. 

10

(5th Cir. 1988) (holding that hypothetical question was “too abstract to reflect

[the claimant’s] particular disabilities”). Accordingly, the ALJ properly

concluded thatthere are jobs in the national economy that Weimer can perform.

Finally, Weimer asserts that the ALJ erred by failing to address whether

he is capable of sustained employment. This Court has previously acknowledged

that “in order to support a finding of disability, the claimant’s intermittently

recurring symptoms must be of a sufficient frequency or severity to prevent the

claimant from holding a job for a significant period of time.” Frank v. Barnhart,

326 F.3d 618, 619 (5th Cir. 2003). The Court has also noted that “[u]sually the

issue of whether the claimant can maintain employment for a significant period

of time will be subsumed in the analysis regarding the claimant’s ability to

obtain employment.” Id. Only in rare circumstances is an ALJ required to make

a separate determination regarding whether a claimant is able to maintain

employment. See id. (citing Watson v. Barnhart, 288 F.3d 212 (5th Cir.2002)).

This is not such a case. Accordingly, we hold that the ALJ’s finding regarding

Weimer’s residual functional capacity also included a determination that he

could in fact maintain employment. 

C. CONCLUSION

For the foregoing reasons, we AFFIRM the ruling of the district court.