### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-40578 Summary Calendar

DONNA M. HENDERSON, Plaintiff–Appellant
v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant–Appellee

Appeal from the United States District Court f or the Eastern District of Texas

4:10-cv-222 Before SMITH, PRADO, and HIGGINSON, Circuit Judges. PER CURIAM: * Plaintiff–Appellant Donna Henderson (“Henderson”) appeals the district court’s affirmance o f t he Social Security Commissioner’s decision denying Henderson s ocial securi t y benefits b ecause she was not di sabled as of the last day of her social security benefits coverage.

I. FACTUAL AND PROCEDURAL BACKGROUND A. Factual Background U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D March 25, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. Case: 12-40578 Document: 00512185626 Page: 1 Date Filed: 03/25/2013No. 12-40578

Henderson was born in 1949, making her 53 when she was l ast insured for benefits and 58 when the A dministrative Law Judge (“ALJ”) rendered his most recent decision in the case. She has ahigh school degree and last worked as a licensed practical nurse in 1997. She was insured for social security benefits through June 30, 2002. The present claim i s not Henderson’s first. H e n d e r s o n had previously filed

a claim for benefits—alleging that she had been disabled since 1976—which the Social Security A dministration denied in 1995. Late r, Henderson reported having suffered a stroke, which necessitated a 1996 l a ser surgery t o repair the affected area o f her heart. In October 1997, while working as a licensed practical
nurse, Henderson injured her back wh i l e steadying a patient who had started to fall. Later physicians noted that s h e h a d a history of mitral valve prolapse. Neurosurgeon Marcos A. R amos, M.D., stated Henderson previously exhibited cardiac s y mptoms, and that s he had undergone a successful laser surgery. In December 1997, h e noted that she was alert, oriented, talkative, and c oherent. Thereafter, in 1 998, Henderson f iled an application alleging disability from the October 1997 back injury, which the Social Security Administration denied in 1999. In July 1999, N eurologist Daniel J. Hopson, M .D., noted that Henderson had a h istory of m itral valve prolapse a nd cardiac arrhythmia and had possibly suffered a small s troke in 19 9 5

. H e t r eated h er for back and left leg p ain. He noted that she denied any prior neurological s y m p t o ms, but that she was reporting s o m e s ymptoms of depression and memory loss associated with her prior s troke. He s tated she h ad 5/5 strength in her lower e xtremities. Her MRI and EMG were negative. H opson saw Henderson twice m ore in 2000, at which point he ordered a lumbar spine MRI. The test result was normal, showing no evidence of disc h erniation or stenosis. Hopson’s records for H enderson ’ s J uly

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2000 visit noted normal gait, station, and balance, and a strength o f 5/5 in the lower extremities. In January 2001, H opson said she suffered back injury, and has resulting neuralgia pain, but given h er negative test resul t s h e h ad no further treatment recommendations. In J une 2001, he noted her l umbar pain, negative neurologic exam, and 5/5 strength assessment. A February 2001 record from Steven L. R emer, M.D., noted that Henderson’s past medical history included a history of mitr al v alve p ro l ap se, and

a history of c ar d iac arrhythmia with no recurrent p r oblems. In July 2001, Henderson r eturned to Dr. Hopson. He ordered a lumbar CT, which revealed an annular tear, but n o significant disc bulge at a ny level. Her strength continued to be 5/5. In July 2002, H opson reported that Henderson had 5/5 motor strength, chronic lumbar pain with a recent flare-up, but no motor or sensory loss. On July 22, 2002, Henderson applied again f or Title II disability insurance benefits, alleging that she had been disabled since October 10, 1997, due to her back i n jury and memory problems. Her insured status ended on June 3 0, 2002. On October 31, 2002, after Henderson had applied f or b enefits, Dr. Kabel completed a psychiatric ev aluation of her. H e n derson reported occasional depression. Dr. Kabel noted that H enderson had “some cognitive problems” but stated that a s p ecialist should be consulted for more precise prognosis. He assessed h e r Gl obal Assessment o f Functioning (“GAF”)—a scale u sed to rate the social, occupational, and physiological functioning of adults—score at 60, based

on psychological factors alone. A score o f 60 i ndicates “moderate symptoms,” but is on the verge of “some mild symptoms. ” H e n o t ed that she told h im she gets

u p every morning, has c offee, watches the news, bathes, dresses, cleans the house, makes the bed, and runs errands. She occasionally dates a nd has a friend with whom she goes out to eat or to the movies. In December 2002, state medical consultant A. Boulos, M.D., stated that Henderson’s depression w as secondary to t h e stroke and determined that

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Henderson did not h ave a severe m ental impairm e n t , but that what impairments she did have resulted in mild restriction of daily activities. In January 2 0 03, the lumbar spine MRI that Dr. Hopson ordered i ndicated

a “mild diminution in disc signal intensity without diminution in disc h e ight

. . . [and] no focal disc protrusion or central spine stenosis or for a m i n a l stenosis.” His office notes from January 2003 indicate he had the impression she had a memory disorder, but h is stated plan was to conti n u e w i t h c urrent pain and depression medicines and follow up in three months. At the same visit he also noted that she had normal speech, c omprehension, strength, coordination, gait, and balance. She also reported fatigue and decreased mood to Dr. Hopson. He fi l l e d o u t an Estimated Functional Capacity Form, noting that she could occasionally lift a nd carry up to ten pounds and s it four hours a day with rests, but c ould not p erform other postural activities. In June 2003, Hopson n oted that Henderson had sciatic nerve p ain, and should s tay off work. He noted that her pain was controlled with analgesics and prescriptions from his office. In March 200 4 , Dr. Mount, a clinical psychologist, performed a psychological evaluation of Henderson. He noted that her affect and mood were depress e d , she had some suicidal ideation, tearfulness, and anxiety. He diagnosed a mood disorder and a GAF of 45, indicating “serious symptoms.” Administrative hearings were held in 2 0 04 and 2005. At the 2005 hearing, medical expert David S o well, M.D., testified that Henderson’s m o t o r a n d s e n s o ry functio n s w e r e g enerally intact, and that there was a general lack of findings that could confirm her reported pain. He said she had degenerative disc disease, but that there was n o evidence of n erve root compression. Henderson testified that she had constant pain which required prescription pa i n r elievers and ibuprofen. She testified that she had b een depressed since 2002. She testified that she p erforms light housework, but had given up attending church. She said

s h e speaks to friends on the phone, eats out, and goes to the movies, but o n l y
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finds r elief through hot baths. She also testified that she traveled to Shreveport to visit her d a ughter every few months. Wh e n asked by the ALJ whether she sought counseling, she replied, “I don’t want t o spend my life in a psychiatrist’s office, and so I d on’t go.” After she told th e ALJ that doing so would do no good, he ceased that line of questioning. Ultimately, the ALJ d enied Henderson’s claim o n June 9 , 2005, finding that Henderson w as not disabled as of June 30, 2002, the date that s he was last insured. The 20 0 5 d e c i sion indicated that d e generative disc disease was Henderson’s only severe i m p a i r m ent, and that Henderson retained the ability to perform a significant range of light work. The Appeals Council vacated and

reman d e d t h e ALJ’s 2005 decision. The Appeals Council directed the ALJ on remand to give further c o n s i deration to the treating and e xamining source opinions, further eval u ate H enderson’s s ubjective complaints, give further consideration t o Henderson’s maxi m u m functional capacity, and obtain supplemental evidence from a vocational expert. Another administrat i v e hearing was held on N ovember 1 3, 2007. Henderson, her daughter, a medical expert, and a vocational expert testified. Neurologist Susan Blue, M.D., testified that Henderson did n ot meet the degree of limitations necessary to be deemed disabled. Ins t e a d , H enderson had symptoms consistent with a mild radiculopathy. Dr. Blue opined that, based on the f indings in the record, H enderson could lift t wenty pound s f r e q u e ntly, lift forty pounds occasionally, sit for two hours at a time up t o six hours a day, and crawl a nd bend occasionally. Dr. Blue testified to having reviewed Dr. H opson’s records, but stated she did not see any physical justification f or his opinion. Dr. Blue, acknowledging that Henderson e xperi e nc e d s o m e pain, also stated she was giving H e n d e r s o n th e “b e n e f it th e doubt” because there w as i nsufficient objective evidence to substantiate the limitations that Henderson c l a i med. Dr. Blue,

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noting that H enderson had been prescribed numerous medications, opined that Henderson’s motivation was a problem. Vocational expert Tammie Donaldson, M .S., t estified that H ende r s o n ’ s past work included light, unskilled work as a fundraiser, and light, skilled work

as an o ffice nurse. Donaldson testified that an individual w ith Henderson’s specified exertional and n o n e xertional f unctional limitations could perform Henderson’s p ast relevant fundraising work. Donaldson also identified other j obs that s o meone Henderson’s a ge could perform, taking into account h e r educat i o n and specified limitations. Donaldson also testified a s to h ow many thousands of each such possible job were in Texas. The ALJ issued a s econd unfavorable decision o n J anuary 2 3 , 2008, finding that Henderson was n ot disabled because she was capable of performing her past relevant work. Specifically, he determined that H enderson had severe physical and mental impairments, but did n ot have an impairment that met or equaled any listing t h r o u gh her date of insurance. The ALJ indicated that Henderson had mild restricti o n s i n d aily activiti e s a n d m oderate difficulties with concentration, persistence, o r p a c e , but that she had no difficulties w ith social functioning and no episodes of decompensation. He found th at her impairments resulted in limitations that restricted h er to wor k that fell b etween light and medium. More specificall y , the ALJ determined that H enderson retained the residual functional capacity to lift forty pounds occasionally and twenty pounds frequently, sit for six o f e i gh t h ours, and stand/walk two of eight hours (thirty minutes at a tim e )

. S h e h ad the ability to understand, remember, and follow simple and detailed instructions and c omplete repetitive tasks. According to the vocational expert’s testimony, Henderson retained the capacity to perform her light, unskilled p ast relevant work as a fundraiser. Thus, t h e ALJ denied her application.

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The Appeals Council denied Henderson’s request for review, making the ALJ’s 2 008 decision the S ocial Security Commissione r ’s final opinion. Henderson sought j udicial review before the District Court f or the Eastern District of Texas. United States Magistrate Judge Don D. B ush recommended that the D i s t r ict Court affirm the Commissioner’s decision. United States District C o u r t Judge Richard Schell adopted the Report and Recommendation

o f the M agistrate J udge and issued a Final Judgment affirming t h e Commissioner’s decision. Henderson appealed. II. JURISDICTION The District Court had jurisdiction p ursuant to 42 U.S. C

. § 405(g). Henderson timely f

iled a notice of appeal. This c ourt has jurisdiction pursuant to 28 U.S.C. § 1291. III. DISCUSSION A. Standard of Review The federal courts review t h e Social Security Commissioner’s denial of social security benefits only t o ascertain whether (1) the final decision is supported by substantial evidence, and (2) whether the Commissioner u sed the
proper legal standards to evaluate the evidence. Newton v. Apfel , 209 F.3d 448, 452 (5th Cir. 2000). Substantial evidence is more than a scintilla, but l ess than

a preponderance. F

alco v. Shalala , 27 F.3d 160, 162 (5th Cir. 1 994). The Court of Appeals does not re-weigh the decision, try the issues de n ovo, or substitute its judgment f

or that of the Commissioner. L eggett v. Chater , 67 F.3d 5 58, 564 (5th Cir. 1995); Bowling v. Shalala , 36 F.3d 431, 4 34 (5th Cir. 1994). Therefore,

a finding of no substantial evidence is appropriate only if there is a c onspicuous absence of credible evidence to support the decision. See Johnson v. Bowen , 864 F.2d 340, 343–44 (5th Cir. 1988). In determining whether a claimant is disabled under Title II, a five-step “sequential evaluation” is u sed. First, a claimant engaged i n substantial gainful

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employment at the time of her claim i s not disabled. 20 C. F

. R

. § 4 04.1520(b). Second, the claimant is not disabled i f h e r alleged impairment is not severe. Id

. § 4 04.1520(c). Third, if the al l eged impairment i s severe, th e claimant is considered disabled if her impairment corresponds to an impairment d escribed in 20 C.F.R., Subpart P, Appendix 1. Id

. § 404.1520(d). Fourth, a claimant with

a severe impairment that does not correspond to a listed i m p a i rment is not considered to be disabled if she is capable of performing her past work. Id

. § 404.1520(e), (f). The fifth step involves determining whether the claimant could p erfo r m s ome work in the national economy. Id

. § 404.1520(g). At this stage, the burden s hifts to the Commissioner t o establish that there are jobs in the national economy that the claimant can perform, c o n s i s t e nt with her medically determinable impairments, function al li m it ati o n s , a ge , e du c ati o n , a nd work experience. Bowen v. Yuckert , 482 U.S. 137, 146 n.5 (1987). B. Analysis On appeal, Henderson raises two i s s u es, the first of which has several subpoints. First, she argues that the ALJ failed to set forth a proper evaluation of her mental impairments. Second, she disputes the ALJ’s determination that Henderson’s account of her limitations was n ot entirely credible. Although she raises specific issues, which we discuss below, ultimately, our r eview is limited to whether the ALJ applied the co r r ect legal standard a nd whether there is substantial evidence supporting his decision. We affirm as to both. 1. W hether the ALJ properly e valuated Henderson’s mental impairments As to the issue of whether the ALJ p r operly evaluated Henderson’s mental impairments, she raises several subissues. She alleges that t h e ALJ failed to comply with the Appeals C o u ncil’s remand order, that the ALJ did not adequately anal y z e her mental i mpairments, and that the ALJ erred by not sufficiently discussing his conclusions. Finally, she alleges the ALJ erred in determining her mental residual functional capacity. W e affirm t h e d i s trict court as to all four.
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a. Did the ALJ fail to comply with the remand order? Henderson first alleges that, on remand, the ALJ f ailed to comply with the Appeals Council’s remand o rder. As discussed above, afte r t h e f i r s t series of hearings, the Appeals Council remanded the c a s e t o the ALJ with several instructions: (1) give further consideration to the opinions of those that treated and examined h e r a s to her mental impairment; (2) evaluate her subjective complaints; (3) with regard to her residual functional capacity, provide rationale

a n d r e f e rences to support assessed limitations; (4) obtain evidence from a vocational e xp e rt c o nc e rni n g a ppropriate j obs Henderson could perform and their incidence in the national economy. This c ontention is without merit because although H enderson cites some

case law for the proposition th at failure to comply with an Appeals C ouncil order constitutes reversible error, n one is mandatory authority. In fact, all three are di s t r i c t court opinions from outside the Fifth C ircuit, and none i s published. Instead, the clear rule is that r emand is warranted only where the ALJ’s decision fails t o apply the proper legal s t andard or the decision is not supported by substantial evidence. In an abundance of thoroughness, we note however, that the ALJ addressed each category that he was directed to evaluate on remand. First, the ALJ wa s dir e c ted to give further consideration to the treating and examining o p inions regardin g H e n d erson’s mental impairment. As the magistrate judge’s Report and Recommendation notes, the ALJ did not entirely reject Dr. Hopson and Dr. Mount’s opinions, but instead afforded them little evidentiary weigh t

. “Even though the opinion and diagnosis of a treating
p h y s ician should be afforded considerable weight in determining disability

. . . [t]he opinions may be assigned little or no weight when good cause is shown[,] .

. . [like] where the treating physician’s evidence is conclusory

. . . o r is otherwise unsupported by the evidence.” Newton v. Apfel , 209 F.3d 4 48, 455–56 (5th Cir. 2000). In his 2008 decision, the ALJ explained that he gave littl e w e i ght to

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evidence from Drs. Hopson and Mount because their opinions were inconsistent with o ther evidence p r e s e n t e d, such as Henderson’s own testimony about her daily activities and the n egative EMGs, MRIs, and normal assessment of her gait and reflexes during examinations. As r e quired, the ALJ addressed the factors that must be considered before an ALJ can decline to give a treating physician’s opinion controlling weight. See Newton , 209 F.3d at 456. Second, the Appeals Council directed t h e ALJ to f urther evaluate Henderson’s subjective c omplaints. He did so. His 2008 d ecision detailed his

reasons for doubting the credibility of Henderson’s account. H e noted that, at the first hearing, Henderson testified t o eating o u t several times a week, dating occasionally, c ooking, attending movies a nd visiting her d aughter i n S hreveport. He held that while her impairments could h ave produced the alleged symptoms, “her statements c oncerning the intensity, persistence and lim iti n g e f f e c t s of these
sy m p t o m s are not entirely credible,” presumably due to the personal activities she completes. Third, on r e m a n d , the ALJ was t o provide explanation and references to

s upport any assessed limitations regarding her residual functional capac i t y . Before considering s tep four of the sequential evaluation process, the ALJ must fi r s t d e t e r m i n e t h e c l a i m a n t ’ s r e s i d u a l fu n c t i o n a l c a p a c i t y . 20 C.F.R. § 404.1520(e). An individual’s residual func ti onal capacity is her ability to do p hysical and mental work activities despite limitations f rom impairments. 20 C.F.R. §§ 404.1520(e), 404.1545. The ALJ s p e nt approximately five pages detailing his findings about her residual functional capa c i t y , relying in part on testimony of medical experts, including Dr. Hopson, Dr. Kaber, and at least six others. Medical e xpert D r. Sowe ll testified that Henderson had a residual functional capacity for medium-level work. Finally, the Appeals Council had directed the ALJ to obtain the testimony of a vocational expert on r emand. Pursuant to this directive, at the hearing upon

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which the ALJ’s ultimate decision was based, vocational expert Ta m m ie Donaldson o ffered detailed testimony about job availabil i t y f o r someone with Henderson’s level of education and impairment. Moreover, Henderson, in her request for r eview in front o f the Appeals Council, a r g u e d that the ALJ had n ot followed the Appeals Council’s remand i n s t r u ctions. Had the Appeals Council thought that the ALJ had not co m p l i e d with its remand order, the Appeals Council could have grant e d Henderson’s request for review, which it denied. b. Did the ALJ adequately analyze Henderson’s mental impairment? Henderson also c ontends on appeal t h a t the ALJ f ailed to adequately analyze her mental impairments at s tep two of the sequential evaluation process, specifically in r egard to her stroke. The ALJ found that Hend e r s o n h ad two

severe impairments: degenerati ve disc disease and depression. Having found that Henderson suffered from severe impairments, the ALJ thus p r ogressed t o step three. H enderson argues that it w as error for the ALJ not t o find her stroke to be a severe i mpairment. The ALJ’s step two d e termination states in part: “the claimant worked after her stroke and it did not constitute a severe impairment.” Henderson argues this statement erroneously implies that because she worked after the stroke, it cannot have been severe. The ALJ could appropriately use the fact that Henderson c ontinued to p erform skilled work as a practical nu r s e for

more than two years after the alleged stroke to substantiate his c onclusion that her stroke was not a severe impairment. See Stone v. Heckle r , 7 5 2 F

. 2 d 1099, 1101 (5th Cir. 1 985) (“[A]n i mpairment can be considered as not severe only if it is a slight abnormality [having] such minimal effect on the indivi d u a l that it would n ot be expected to interfere w ith t he individual’s ability to work, irrespective of age, education or work experience.”) (alterations in original). Moreov e r , H e n d e r s o n b e ar s th e b ur d e n o f establishing a severe impairment from the stroke. See Bowen v. Yuckert , 482 U.S. at 146 n.5 (stating that plaintiff

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bears the b urden at step two of the sequential evaluation p r o c e s s )

. The ALJ’s decision cites and applies the correct s tandard from Stone , 752 F.2d at 1101. The ALJ acknowledged that Henderson reported having had a stroke, although there is some inconsistency as t o the year of the stroke. He found tha t she had a normal brain MRI. The ALJ noted that a n e x a m ining n e urosurgeon found her to be alert, oriented, and pleasant, with n o r mal thought and speech. He also noted that although Henderson self-re p o r t e d m emory l o ss due to a s troke, she also d elivered to him a n articulate four-page letter she had written containing a well-crafted and concise medical history. The ALJ had before him the report of

a treating physician, D r. Remer, that noted a “h istory o f mild stroke secondary to arrhythmia with full recovery.” Our review o n this point i s l i m i t ed to determining whether the ALJ applied the c orrect l e g a l standard. We find that he did, and thus did not err in finding th at only Henderson’s depression and disc degeneration were severe impairments. c. Did the ALJ err by not including the bases for his decision? Third, Hende r s o n ar gu es that the ALJ erred in assessing the severity of her

m e n tal impairment by not including any discussion o f the bases for h i s conclusion. He determined that “[i]n activities of daily living, the claimant has mild restrictions[,]” no difficulties in s ocial functioni n g , and “moderate diffic u l t i es” in the area of “concentration, persistence or p ace[.]” Specifically, Henderson argues that the ALJ’s findings were in error because they w e r e contrary to the level of limitations to which she testified. This ar g ument is unpersuasive. The ALJ expressly considered the criteria of mental impairment listings. Se e 20 C.F.R. Pt. 404, subpt. P app. 1 ¶ 1 2.04. Further, questions of credibility concerning pain are within the ALJ’s discretion. Dunbar v. Barnhart , 330 F.3d 670, 672 (5th Cir. 2003) (per curia m ) ( “ T h e ALJ did not err in discounting [claimant’s] subjective complaints of pain as inconsistent with other evidence in the record, i ncluding the findings o f physicians. The ALJ must

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consider the su bjective evidence of pain, but it is within his discretion to determine the pain’s disabling nature.” (internal quotation marks omitted)). Here, the ALJ outlined the seven f actors that he was r equired to consider, in addition to o bj e c t i ve medical evidence, when assessing th e c r edibility of a claimant. As discussed above, the ALJ did not err in determining that Henderson’s reports about the intensity, persistence, and limiting effects of her symptoms were not credible. He noted that medical examinations revealed full muscle strength, intact sensations and refl e x e s , a n d normal gait and balance. She h a d o c c a s i o nally ceased taking pain medications on h er own. A residual functional capacity evaluation report noted that Henderson had demonstrated inconsistent effort. He noted that Henderson had reported taking c are of a pet, going out to eat, driving, making her bed, bath i n g , d o i ng chores, dating, and tra v e l i ng occasionally to Shreveport. Additionally, the ALJ noted that he discounted Henderson’s dau ghter’s testimony because it was vague, did not contain dates, and c ontradicted Henderson’s own testimony. Ultimately, as Henderson’s account o f her li m i tations conflicted w ith both the state agency medical con s u l tants and the medical experts, the ALJ was well within his discretion to afford her testimony little credibility. d. Did the ALJ err in determining Henderson’s mental residual functional capacity ? Finally, Henderson argues that the ALJ erred in determining Henderson’s mental residual functional capacity. Specifica l l y, H enderson claims he disregarded evidence f rom Dr. Mount without a p ro p e r b asis. As discussed above,

see s upra III.B.1.(a)., the ALJ did n ot err i n affording little w eight to Dr. Mount,

a non-treating physician whos e o p i nions contradicted o ther medical evidence and testimony. See 20 C .F.R. § 404.1527(c). The opinion of an examining doctor must be considered, but need not be given controlling weight. Id

.

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To the extent that Henderson c laims on appeal that the ALJ e rred in only

r u ling out her ability to complete complex t asks w ithout a ccounting for her “moderate limitations of concentrat i o n , persistence, or pace,” that argument is waived because Henderson failed to raise it before the district c o urt. See City of Dall. v. Hall , 562 F.3d 712, 723–24 (5th Cir. 2009). 2. Whether the ALJ erred in discounting Henderson’s credibility Henderson’s second point of error is that the ALJ erred in discounting her credibility. As discussed above, see supra III.B.1.(a) and (c), the ALJ adequately supported his determination that Henderson’s allegations o f he r limitations were not entirely credible. Ultimately, Hen d e rson cannot meet her b urden to e stablish that the Commissioner’s d ecision applied the wrong legal standard or that the d ecision is not supported by substantial evidence. IV. CONCLUSION For the foregoing r easons, we AFFIRM the district court’s judgm e nt affirming the Commissioner’s decision.

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