IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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

for 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 of the Social Security Commissioner’s decision denying

Henderson social security benefits because she was not disabled as of the last

day of her social security benefits coverage. 

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Factual Background 

United States Court of Appeals

Fifth Circuit

F I L E D

March 25, 2013

Lyle W. Cayce

Clerk

* 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.

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Henderson was born in 1949, making her 53 when she was last insured for

benefits and 58 when the Administrative Law Judge (“ALJ”) rendered his most

recent decision in the case. She has a high 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 is not Henderson’s first. Henderson had previously filed

a claim for benefits—alleging that she had been disabled since 1976—which the

Social Security Administration denied in 1995. Later, Henderson reported

having suffered a stroke, which necessitated a 1996 laser surgery to repair the

affected area of her heart. In October 1997, while working as a licensed practical

nurse, Henderson injured her back while steadying a patient who had started

to fall. 

Later physicians noted that she had a history of mitral valve prolapse. 

Neurosurgeon Marcos A. Ramos, M.D., stated Henderson previously exhibited

cardiac symptoms, and that she had undergone a successful laser surgery. In

December 1997, he noted that she was alert, oriented, talkative, and coherent. 

Thereafter, in 1998, Henderson filed an application alleging disability from the

October 1997 back injury, which the Social Security Administration denied in

1999.

In July 1999, Neurologist Daniel J. Hopson, M.D., noted that Henderson

had a history of mitral valve prolapse and cardiac arrhythmia and had possibly

suffered a small stroke in 1995. He treated her for back and left leg pain. He

noted that she denied any prior neurological symptoms, but that she was

reporting some symptoms of depression and memory loss associated with her

prior stroke. He stated she had 5/5 strength in her lower extremities. Her MRI

and EMG were negative. Hopson saw Henderson twice more in 2000, at which

point he ordered a lumbar spine MRI. The test result was normal, showing no

evidence of disc herniation or stenosis. Hopson’s records for Henderson’s July

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2000 visit noted normal gait, station, and balance, and a strength of 5/5 in the

lower extremities. In January 2001, Hopson said she suffered back injury, and

has resulting neuralgia pain, but given her negative test results he had no

further treatment recommendations. In June 2001, he noted her lumbar pain,

negative neurologic exam, and 5/5 strength assessment. 

A February 2001 record from Steven L. Remer, M.D., noted that

Henderson’s past medical history included a history of mitral valve prolapse, and

a history of cardiac arrhythmia with no recurrent problems. In July 2001,

Henderson returned to Dr. Hopson. He ordered a lumbar CT, which revealed an

annular tear, but no significant disc bulge at any level. Her strength continued

to be 5/5. In July 2002, Hopson 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 for Title II disability insurance

benefits, alleging that she had been disabled since October 10, 1997, due to her

back injury and memory problems. Her insured status ended on June 30, 2002. 

On October 31, 2002, after Henderson had applied for benefits, Dr. Kabel

completed a psychiatric evaluation of her. Henderson reported occasional

depression. Dr. Kabel noted that Henderson had “some cognitive problems” but

stated that a specialist should be consulted for more precise prognosis. He

assessed her Global Assessment of Functioning (“GAF”)—a scale used to rate the

social, occupational, and physiological functioning of adults—score at 60, based

on psychological factors alone. A score of 60 indicates “moderate symptoms,” but

is on the verge of “some mild symptoms.” He noted that she told him she gets

up every morning, has coffee, watches the news, bathes, dresses, cleans the

house, makes the bed, and runs errands. She occasionally dates and 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 was secondary to the stroke and determined that

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Henderson did not have a severe mental impairment, but that what

impairments she did have resulted in mild restriction of daily activities. 

In January 2003, the lumbar spine MRI that Dr. Hopson ordered indicated

a “mild diminution in disc signal intensity without diminution in disc

height . . .[and] no focal disc protrusion or central spine stenosis or foraminal

stenosis.” His office notes from January 2003 indicate he had the impression she

had a memory disorder, but his stated plan was to continue with current pain

and depression medicines and follow up in three months. At the same visit he

also noted that she had normal speech, comprehension, strength, coordination,

gait, and balance. She also reported fatigue and decreased mood to Dr. Hopson. 

He filled out an Estimated Functional Capacity Form, noting that she could

occasionally lift and carry up to ten pounds and sit four hours a day with rests,

but could not perform other postural activities. In June 2003, Hopson noted that

Henderson had sciatic nerve pain, and should stay off work. He noted that her

pain was controlled with analgesics and prescriptions from his office. 

In March 2004, Dr. Mount, a clinical psychologist, performed a

psychological evaluation of Henderson. He noted that her affect and mood were

depressed, 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 2004 and 2005. At the 2005 hearing,

medical expert David Sowell, M.D., testified that Henderson’s motor and sensory

functions were generally 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 no evidence of nerve root compression. Henderson testified

that she had constant pain which required prescription pain relievers and

ibuprofen. She testified that she had been depressed since 2002. She testified

that she performs light housework, but had given up attending church. She said

she speaks to friends on the phone, eats out, and goes to the movies, but only

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finds relief through hot baths. She also testified that she traveled to Shreveport

to visit her daughter every few months. When asked by the ALJ whether she

sought counseling, she replied, “I don’t want to spend my life in a psychiatrist’s

office, and so I don’t go.” After she told the ALJ that doing so would do no good,

he ceased that line of questioning. 

Ultimately, the ALJ denied Henderson’s claim on June 9, 2005, finding

that Henderson was not disabled as of June 30, 2002, the date that she was last

insured. The 2005 decision indicated that degenerative disc disease was

Henderson’s only severe impairment, and that Henderson retained the ability

to perform a significant range of light work. The Appeals Council vacated and

remanded the ALJ’s 2005 decision. The Appeals Council directed the ALJ on

remand to give further consideration to the treating and examining source

opinions, further evaluate Henderson’s subjective complaints, give further

consideration to Henderson’s maximum functional capacity, and obtain

supplemental evidence from a vocational expert. 

Another administrative hearing was held on November 13, 2007. 

Henderson, her daughter, a medical expert, and a vocational expert testified. 

Neurologist Susan Blue, M.D., testified that Henderson did not meet the degree

of limitations necessary to be deemed disabled. Instead, Henderson had

symptoms consistent with a mild radiculopathy. Dr. Blue opined that, based on

the findings in the record, Henderson could lift twenty pounds frequently, lift

forty pounds occasionally, sit for two hours at a time up to six hours a day, and

crawl and bend occasionally. Dr. Blue testified to having reviewed Dr. Hopson’s

records, but stated she did not see any physical justification for his opinion. Dr.

Blue, acknowledging that Henderson experienced some pain, also stated she was

giving Henderson the “benefitthe doubt” because there was insufficient objective

evidence to substantiate the limitations that Henderson claimed. Dr. Blue,

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noting that Henderson had been prescribed numerous medications, opined that

Henderson’s motivation was a problem. 

Vocational expert Tammie Donaldson, M.S., testified that Henderson’s

past work included light, unskilled work as a fundraiser, and light, skilled work

as an office nurse. Donaldson testified that an individual with Henderson’s

specified exertional and nonexertional functional limitations could perform

Henderson’s past relevant fundraising work. Donaldson also identified other

jobs that someone Henderson’s age could perform, taking into account her

education and specified limitations. Donaldson also testified as to how many

thousands of each such possible job were in Texas. 

The ALJ issued a second unfavorable decision on January 23, 2008,

finding that Henderson was not disabled because she was capable of performing

her past relevant work. Specifically, he determined that Henderson had severe

physical and mental impairments, but did not have an impairment that met or

equaled any listing through her date of insurance. The ALJ indicated that

Henderson had mild restrictions in daily activities and moderate difficulties with

concentration, persistence, or pace, but that she had no difficulties with social

functioning and no episodes of decompensation. He found that her impairments

resulted in limitations that restricted her to work that fell between light and

medium. More specifically, the ALJ determined that Henderson retained the

residual functional capacity to lift forty pounds occasionally and twenty pounds

frequently, sit for six of eight hours, and stand/walk two of eight hours (thirty

minutes at a time). She had the ability to understand, remember, and follow

simple and detailed instructions and complete repetitive tasks. According to the

vocational expert’s testimony, Henderson retained the capacity to perform her

light, unskilled past relevant work as a fundraiser. Thus, the ALJ denied her

application. 

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The Appeals Council denied Henderson’s request for review, making the

ALJ’s 2008 decision the Social Security Commissioner’s final opinion. 

Henderson sought judicial review before the District Court for the Eastern

District of Texas. United States Magistrate Judge Don D. Bush recommended

that the District Court affirm the Commissioner’s decision. United States

District Court Judge Richard Schell adopted the Report and Recommendation

of the Magistrate Judge and issued a Final Judgment affirming the

Commissioner’s decision. Henderson appealed. 

II. JURISDICTION 

The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g). 

Henderson timely filed a notice of appeal. This court has jurisdiction pursuant

to 28 U.S.C. § 1291. 

III. DISCUSSION

A. Standard of Review 

The federal courts review the Social Security Commissioner’s denial of

social security benefits only to ascertain whether (1) the final decision is

supported by substantial evidence, and (2) whether the Commissioner used 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 less than

a preponderance. Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994). The Court

of Appeals does not re-weigh the decision, try the issues de novo, or substitute

its judgment for that of the Commissioner. Leggett v. Chater, 67 F.3d 558, 564

(5th Cir. 1995); Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994). Therefore,

a finding of no substantial evidence is appropriate only if there is a conspicuous

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 used. First, a claimant engaged in substantial gainful

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employment at the time of her claim is not disabled. 20 C.F.R. § 404.1520(b). 

Second, the claimant is not disabled if her alleged impairment is not severe. 

Id. § 404.1520(c). Third, if the alleged impairment is severe, the claimant is

considered disabled if her impairment corresponds to an impairment described

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 impairment 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 perform some work in the national economy. Id. § 404.1520(g). At this

stage, the burden shifts to the Commissioner to establish that there are jobs in

the national economy that the claimant can perform, consistent with her

medically determinable impairments, functionallimitations, age, education, and

work experience. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987). 

B. Analysis 

On appeal, Henderson raises two issues, 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 not entirely credible. Although she

raises specific issues, which we discuss below, ultimately, our review is limited

to whether the ALJ applied the correct legal standard and whether there is

substantial evidence supporting his decision. We affirm as to both. 

1. Whether the ALJ properly evaluated Henderson’s mental

impairments 

As to the issue of whether the ALJ properly evaluated Henderson’s mental

impairments, she raises several subissues. She alleges that the ALJ failed to

comply with the Appeals Council’s remand order, that the ALJ did not adequately

analyze her mental impairments, and that the ALJ erred by not sufficiently

discussing his conclusions. Finally, she alleges the ALJ erred in determining her

mental residual functional capacity. We affirm the district 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 failed to comply with the

Appeals Council’s remand order. As discussed above, after the first series of

hearings, the Appeals Council remanded the case to the ALJ with several

instructions: (1) give further consideration to the opinions of those that treated

and examined her as to her mental impairment; (2) evaluate her subjective

complaints; (3) with regard to her residual functional capacity, provide rationale

and references to support assessed limitations; (4) obtain evidence from a

vocational expert concerning appropriate jobs Henderson could perform and their

incidence in the national economy.

This contention is without merit because although Henderson cites some

case law for the proposition that failure to comply with an Appeals Council order

constitutes reversible error, none is mandatory authority. In fact, all three are

district court opinions from outside the Fifth Circuit, and none is published. 

Instead, the clear rule is that remand is warranted only where the ALJ’s decision

fails to apply the proper legal standard 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 was directed to give further consideration to the treating and

examining opinions regarding Henderson’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 weight. “Even though the opinion and diagnosis of a treating

physician 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 . . . or is otherwise

unsupported by the evidence.” Newton v. Apfel, 209 F.3d 448, 455–56 (5th Cir.

2000). In his 2008 decision, the ALJ explained that he gave little weight to

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evidence from Drs. Hopson and Mount because their opinions were inconsistent

with other evidence presented, such as Henderson’s own testimony about her

daily activities and the negative EMGs, MRIs, and normal assessment of her gait

and reflexes during examinations. As required, 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 the ALJ to further evaluate

Henderson’s subjective complaints. He did so. His 2008 decision detailed his

reasons for doubting the credibility of Henderson’s account. He noted that, at the

first hearing, Henderson testified to eating out several times a week, dating

occasionally, cooking, attending movies and visiting her daughter in Shreveport. 

He held that while her impairments could have produced the alleged symptoms,

“her statements concerning the intensity, persistence and limiting effects of these

symptoms are not entirely credible,” presumably due to the personal activities

she completes. 

Third, on remand, the ALJ was to provide explanation and references to

support any assessed limitations regarding her residual functional capacity. 

Before considering step four of the sequential evaluation process, the ALJ must

first determine the claimant’s residual functional capacity. 

20 C.F.R. § 404.1520(e). An individual’s residual functional capacity is her ability

to do physical and mental work activities despite limitations from impairments. 

20 C.F.R. §§ 404.1520(e), 404.1545. The ALJ spent approximately five pages

detailing his findings about her residual functional capacity, relying in part on

testimony of medical experts, including Dr. Hopson, Dr. Kaber, and at least six

others. Medical expert Dr. Sowell 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 remand. Pursuant to this directive, at the hearing upon

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which the ALJ’s ultimate decision was based, vocational expert Tammie

Donaldson offered detailed testimony about job availability for someone with

Henderson’s level of education and impairment. 

Moreover, Henderson, in her request for review in front of the Appeals

Council, argued that the ALJ had not followed the Appeals Council’s remand

instructions. Had the Appeals Council thought that the ALJ had not complied

with its remand order, the Appeals Council could have granted Henderson’s

request for review, which it denied. 

b. Did the ALJ adequately analyze Henderson’s mental impairment? 

Henderson also contends on appeal that the ALJ failed to adequately

analyze her mental impairments at step two of the sequential evaluation process,

specifically in regard to her stroke. The ALJ found that Henderson had two

severe impairments: degenerative disc disease and depression. Having found

that Henderson suffered from severe impairments, the ALJ thus progressed to

step three. Henderson argues that it was error for the ALJ not to find her stroke

to be a severe impairment. The ALJ’s step two determination 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 continued to perform skilled work as a practical nurse for

more than two years after the alleged stroke to substantiate his conclusion that

her stroke was not a severe impairment. See Stone v. Heckler, 752 F.2d 1099,

1101 (5th Cir. 1985) (“[A]n impairment can be considered as not severe only if it

is a slight abnormality [having] such minimal effect on the individual that it

would not be expected to interfere with the individual’s ability to work,

irrespective of age, education or work experience.”) (alterations in original). 

Moreover, Henderson bears the burden of 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 burden at step two of the sequential evaluation process). The ALJ’s

decision cites and applies the correct standard from Stone, 752 F.2d at 1101. The

ALJ acknowledged that Henderson reported having had a stroke, although there

is some inconsistency as to the year of the stroke. He found that she had a

normal brain MRI. The ALJ noted that an examining neurosurgeon found her

to be alert, oriented, and pleasant, with normal thought and speech. He also

noted that although Henderson self-reported memory loss due to a stroke, she

also delivered to him an 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, Dr. Remer, that noted a “history of mild stroke secondary

to arrhythmia with full recovery.” Our review on this point is limited to

determining whether the ALJ applied the correct legal standard. We find that

he did, and thus did not err in finding that only Henderson’s depression and disc

degeneration were severe impairments. 

c. Did the ALJ err by not including the bases for his decision? 

Third, Henderson argues that the ALJ erred in assessing the severity of her

mental impairment by not including any discussion of the bases for his

conclusion. He determined that “[i]n activities of daily living, the claimant has

mild restrictions[,]” no difficulties in social functioning, and “moderate

difficulties” in the area of “concentration, persistence or pace[.]” Specifically,

Henderson argues that the ALJ’s findings were in error because they were

contrary to the level of limitations to which she testified. This argument is

unpersuasive. The ALJ expressly considered the criteria of mental impairment

listings. See 20 C.F.R. Pt. 404, subpt. P app. 1 ¶ 12.04. Further, questions of

credibility concerning pain are within the ALJ’s discretion. Dunbar v. Barnhart,

330 F.3d 670, 672 (5th Cir. 2003) (per curiam) (“The ALJ did not err in

discounting [claimant’s] subjective complaints of pain as inconsistent with other

evidence in the record, including the findings of physicians. The ALJ must

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consider the subjective 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 factors that he was required to consider,

in addition to objective medical evidence, when assessing the credibility 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 reflexes, and normal gait and balance. 

She had occasionally ceased taking pain medications on her own. A residual

functional capacity evaluation report noted that Henderson had demonstrated

inconsistent effort. He noted that Henderson had reported taking care of a pet,

going out to eat, driving, making her bed, bathing, doing chores, dating, and

traveling occasionally to Shreveport. Additionally, the ALJ noted that he

discounted Henderson’s daughter’s testimony because it was vague, did not

contain dates, and contradicted Henderson’s own testimony. Ultimately, as

Henderson’s account of her limitations conflicted with both the state agency

medical consultants 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. Specifically, Henderson claims he

disregarded evidence from Dr. Mount without a proper basis. As discussed above,

see supra III.B.1.(a)., the ALJ did not err in affording little weight to Dr. Mount,

a non-treating physician whose opinions contradicted other 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 claims on appeal that the ALJ erred in only

ruling out her ability to complete complex tasks without accounting for her

“moderate limitations of concentration, persistence, or pace,” that argument is

waived because Henderson failed to raise it before the district court. 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 of her limitations were

not entirely credible. 

Ultimately, Henderson cannot meet her burden to establish that the

Commissioner’s decision applied the wrong legal standard or that the decision is

not supported by substantial evidence. 

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the district court’s judgment

affirming the Commissioner’s decision. 

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