* 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this opinion should not be published and is not precedent except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

June 21, 2005

Charles R. Fulbruge III

Clerk

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 04-50814

Summary Calendar

 

GWENDOLYN DOSS,

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. 1:03-CV-492-AA

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

Before DAVIS, SMITH, and DENNIS, Circuit Judges.

PER CURIAM:*

Gwendolyn Doss appeals the district court’s decision

affirming the Commissioner’s denial of social security disability

benefits. Doss argues that the Commissioner’s decision is not

supported by substantial evidence. The decision of the 

Administrative Law Judge (ALJ) that Doss has the residual

functional capacity to perform sedentary work and that she is not

disabled within the meaning of the Social Security Act is

supported by substantial evidence, including the objective
No. 04-50814

-2-

medical evidence, the opinions of Doss’s treating physicians, the

opinions of the medical consultants and experts, the opinion of

the vocational expert, and Doss’s testimony concerning her daily

activities. See Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.

1995).

Doss argues that the ALJ did not address the impact of her

depression on her residual functional capacity to work. The

record indicates that the ALJ considered all the objective

medical evidence presented by Doss, which included notations from

some of her physicians that she suffered from depression. 

However, the ALJ determined that Doss did not have a longitudinal

history of depression and had not been diagnosed with depression

by a psychologist or a psychiatrist. Doss was advised to follow

up with her treating physician concerning her depression. 

Although Doss reported that she was depressed to her physician,

she apparently did not seek treatment or medication for her

depression. Doss’s failure to seek treatment for depression is

an indication of nondisability. See Villa v. Sullivan, 895 F.2d

1019, 1024 (5th Cir. 1990). 

Doss argues that the ALJ failed to evaluate properly her

complaints of pain. The ALJ considered Doss’s testimony that she

suffered from disabling pain, but determined that the objective

medical evidence did not support her allegations or show that she

suffered from disabling pain that is “‘constant, unremitting, and
No. 04-50814

-3-

wholly unresponsive to therapeutic treatment.’” See Falco v.

Shalala, 27 F.3d 160, 163 (5th Cir. 1994). 

Doss argues that the ALJ did not consider the impact of her

obesity on her ability to perform sedentary work and asks the

court to remand the case to allow the ALJ an opportunity to ask

the medical expert more questions concerning her obesity. Doss

did not allege on the administrative level or in the district

court that she was disabled due to her obesity. She may not

raise new arguments for the first time on appeal. See Greenberg

v. Crossroads Systems, Inc., 364 F.3d 657, 669 (5th Cir. 2004). 

Nonetheless, the ALJ considered the objective medical evidence,

including notations of her physicians that she was obese and that

her obesity contributed to her medical problems. Therefore, the

record indicates that ALJ did consider the impact of Doss’s

obesity on her ability to perform sedentary work. 

Doss argues that the ALJ failed to determine whether she was

able to maintain employment. The ALJ’s determination that Doss

had the residual functional capacity to perform sedentary work is

a determination that she is able to sustain work-related

activities on a “regular and continuing basis,” meaning “8 hours

a day for 5 days a week.” See Social Security Ruling 96-8p (July

2, 1996); 20 C.F.R. §§ 404.1545, 416.945. The ALJ is not

required to make a separate determination that a claimant can

maintain employment in every case. See Dunbar v. Barnhart, 330
No. 04-50814

-4-

F.3d 670, 672 (5th Cir. 2003); see also Frank v. Barnhart, 326

F.3d 618, 621 (5th Cir. 2003).

AFFIRMED.