1 Pursuant to 5 TH C IR

. 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that this opinion should not be published and is not precedent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 5 TH C IR

.

R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

September 15, 2003

Charles R. Fulbruge III

Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 02-50968

Summary Calendar

CARMEN SANCHEZ,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

-------------------- Appeal from the United States District Court

for the Western District of Texas

USDC No. SA-00-CV-1551

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

Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM: 1

Carmen Sanchez appeals the district court’s judgment affirming

the Commissioner’s decisi on to deny her application for

supplemental security income. Because Sanchez did not file

objections to the magistrat e judge’s report and recommendation,

review of the district court’s decision is for plain error only.

See Rodriguez v. Bowen

, 857 F.2d 275, 277 (5th Cir. 1988); see also

United States v. Olano

, 507 U.S. 725, 731-37 (1993)(defining plain

error).2

Sanchez argues for the first time in this court that the

administrative law judge (ALJ) erred in finding, at the third step

of the sequential analysis, that she did not have a listed

impairment. Assuming, a rguendo

, that exceptional circumstances

warrant review of Sanchez’s argument, it is utterly without merit.

The medical expert clearly testified that in his opinion, Sanchez

did not have a listed impairment, and Sanchez’s counsel even

questioned the expert as to why he opined that Sanchez did not have

a listed impairment.

Sanchez also argues that the ALJ erred in determining that she

could do sedentary work because the regul ations “require sitting

for six hours out of an eight hour day

-- not less than six hours.”

She notes that the medical expert testified that she could sit for

less than six hours. There is no requirement that in order to do

sedentary work, the claimant be allowed to sit for precisely six

hours per day. S ee 61 Fed. Reg. 34,480. Further, the hypothetical

posed to the vocational expert included the requirement that the

claimant be able to walk and stand for at least two hours in a

workday.

Citing the medical reports submitted as new evidence before

the Appeals Council, Sanche z argues that the ALJ “simply

disregarded” this “most r ecent evidence.” The Appeals Council

considered the additional evidence submitte d by Sanchez, but

determined that it provided no basis for changing the ALJ’s3

decision. Evidence relating to the subsequent deterioration of a

previously non-disabling condition is not material unless it

relates to the time period for which benefits were sought and

denied. See Falco v. Shalala , 27 F.3d 160, 164 (5th Cir. 1994).

The relevant time period was from the date of Sanchez’s initial

application on September 2, 1998, t hrough the ALJ’s decision on

September 15, 1999. Thus, the Appeals Council did not err in

determining that the additional evidence did not provide any basis

for further review. S ee Shave v. Apfel

, 238 F.3d 592, 597 (5th

Cir. 2001).

Sanchez argues that the ALJ disregarded her ps ychological

impairments and that the hypothetical posed to the vocational

expert was flawed because it did not include her psychological

limitations. Other than testimony establishing that she had been

prescribed medication for depression, the only evidence presented

by Sanchez relating to h er psychological limitations was a 1995

evaluation by a psychologist. The ALJ specifically found that the

psycholog ist who performed the 1995 evaluation was not credible.

Moreover, a review of the evaluation reveals that the psychologist

had given only a provisional diagnosis, and that the evaluation was

to be continued the following week. No further evidence relating

to the evaluation was entered into the record. Because the ALJ

properly rejected Sanchez’s assertion of a psychological

limitation, he did not err by not including such limitation in his

hypothetical.4

San chez also argues that the ALJ erred in finding her

allegations of pain not credible. It is within the ALJ’s

discretion to discredit co mplaints of pain based on the

complainant’s testimony of her daily activities in combination with

the medical records. S ee Griego v. Sullivan

, 940 F.2d 942, 945

(5th Cir. 1991); see also 20 C.F.R. § 404.1529 (explaining how the

Social Security Administration evaluates symptoms, including pain).

We find no abuse of discretion with respect to the ALJ’s evaluation

of Sanchez’s assertions of pain.

Finally, Sanchez argues t hat the ALJ erred in failing to

determine whether she could maintain employment for a significant

period of tim e. In support of her argument, she cites W atson v.

Barnhart

, 288 F.3d 212, 218 (5th Cir. 2002). In W atson

, this court

held that a n individual’s ability to maintain employment is

relevant to a determination of disability. I d

. However, this

court has since held that “nothing in Watson suggests that the ALJ

must make a specific finding regardin g the claimant’s ability to

maintain employment in every case.” F rank v. Barnhart

, 326 F.3d

618, 619 (5th Cir. 2003). R ather, “ Watson requires a situation in

which, by its natur e, the claimant’s physical ailment waxes and

wanes in its manifestation of disabling symptoms.” I d

. Because

Sanchez’s case did not present such a situation, the ALJ did not

err by failing to make a separate finding regarding her ability to

maintain employment for a significant period of time.5

AFFIRMED.