                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                     November 17, 2005
                          FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                                                                          Clerk

                                No. 05-50722

                             Summary Calendar


                             Christina Palomo
                                             Plaintiff-Appellant,

                                   versus

                        Jo Anne B. Barnhart,
           Commissioner of Social Security Administration
                                          Defendant-Appellee.




             Appeal from the United States District Court
                   For the Western District of Texas


                              ( 5:04-CV-326 )

Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.

PER CURIAM:*

      Plaintiff-appellant Christina Palomo appeals an order of the

United States District Court affirming the final decision of the

Commissioner of the Social Security Administration, Jo Anne B.

Barnhart    (“Commissioner”),      that   Palomo    was   not    entitled      to

disability     income   benefits    and   supplemental     security      income

benefits under Titles II and XVI of the Social Security Act, 42

U.S.C. §§ 423, 1382c.      We affirm.


      *
       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should not be published and is not precedent except under the limited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.
                                    I

       On June 21, 2001, Christina Palomo, then a 20-year old female

with a ninth grade education and vocational experience as a fast-

food worker, alleged disability beginning on June 21, 1999, due to

high blood pressure, pseudotumor cerebri, asthma, obesity, Bell’s

palsy, and headaches. Following the five-step analysis pursuant to

20 C.F.R. §§ 404.1520(b-f) & 416.920(b-f), the ALJ weighed several

doctors’ diagnoses, assessed Palomo’s work history and residual

functional   capacity    (“RFC”),   and   considered   testimony   from   a

vocational expert.      The ALJ concluded that Palomo was capable of

performing a significant range of sedentary work.          Thus, the ALJ

concluded that Palomo was not “disabled” under the Social Security

Act.    The Appeals Council denied Palomo’s request for review,

making the determination of the ALJ the final decision of the

Commissioner.

       Pursuant to 42 U.S.C. § 205, Palomo sought review of the

Commissioner’s decision in the United States District Court for the

Western District of Texas.     The district court referred the matter

to a magistrate, who recommended that the Commissioner’s decision

be affirmed.    After Palomo filed objections, the district court

entered an order adopting the magistrate’s recommendation.         Palomo

timely filed a notice of appeal.        We have jurisdiction pursuant to

28 U.S.C. § 1291.

                                    II



                                    2
     Our       review    is     limited       to     determining        whether    the

Commissioner’s decision is supported by substantial evidence and

whether the proper legal standards were applied.1                         Substantial

evidence is such relevant evidence as a reasonable mind might

accept    to   support    a    conclusion.2         “It    must   be    more   than   a

scintilla, but it need not be a preponderance.”3                     Any findings of

fact by the Commissioner supported by substantial evidence are

conclusive.4       We    “cannot   reweigh         the   evidence,     but   may   only

scrutinize the record to determine whether it contains substantial

evidence to support the Commissioner’s decision.”5

     Palomo attacks the Commissioner’s decision on a number of

grounds, none of them with merit.              First, Palomo argues that the

ALJ erred by failing to give proper consideration to the opinions

of her treating physicians.           Second, Palomo argues that the ALJ

erred     by   failing    to     consider      her       mental   and     educational

limitations, as reported by Lester Harrell, Ph.D.                       Third, Palomo

argues that the ALJ erred by failing to give a proper rationale for

his credibility evaluation.           Fourth, Palomo argues that the ALJ

erred in finding that she had a high school education.                         Fifth,



     1
        See Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
     2
        See Richardson v. Perales, 402 U.S. 389, 401 (1979).

     3
        Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
     4
        42 U.S.C. § 205(g).
     5
        Leggett, 67 F.3d at 564.

                                          3
Palomo argues that the ALJ incorrectly allocated the burden of

proof.    We consider each argument in turn.6

                                       A

      Palomo argues that the ALJ failed to give greater weight to

the opinions of her treating physicians.               We conclude that the

ALJ’s findings are supported by substantial evidence. The ultimate

determination of disability is reserved for the Commissioner,7 and

an ALJ must take into consideration all of the evidence from the

claimant’s treating physicians.8           In order to discredit evidence

from a treating physician, the ALJ must present good cause.9                 An

ALJ may diminish the weight of a treating physician’s opinion when

it is unsupported by the evidence.10

      Here, the ALJ properly discounted the opinions of Robert

Shumaker,    M.D.,   and   Antonio   Guerra,    M.D.      Although   both   Dr.

Shumaker     and   Dr.   Guerra   initially    reported    that    Palomo   was

disabled, each subsequently provided reports contradicting their


      6
       Palomo presents two additional arguments on appeal. First, Palomo argues
that the severity of her impairment “waxes and wanes,” which renders her unable
to maintain employment. See Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003).
Second, Palomo argues that the ALJ’s RFC assessment is deficient because it did
not include limitations due to blurred vision and headaches.     Since neither
argument was presented to the ALJ or to the district court, we decline to
consider them for the first time on appeal. Greenberg v. Crossroads Systems,
Inc., 364 F.3d 657, 669 (5th Cir. 2004).
      7
       See Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990).
      8
       See Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001).

      9
       Id.

      10
         Shave v. Apfel, 238 F.3d 592, 595 (5th Cir. 2001); Newton v. Apfel, 209
F.3d 448, 456 (5th Cir. 2000).

                                       4
initial assessment. Dr. Shumaker stated that Palomo could lift and

carry less than ten pounds, and stand and walk for at least two

hours of an eight-hour workday; Dr. Guerra stated that Palomo could

lift and carry six-to-ten pounds, stand and walk two-to-four hours

per workday, and sit four-to-six hours per workday.          Moreover, Dr.

Guerra stated that Palomo was able to perform her past relevant

work as a drive-through cashier at a fast-food restaurant.              The

inconsistency in the treating physicians’ reports provides good

cause for not giving their testimony greater weight.

      These findings are consistent with the evidence presented at

the hearing before the ALJ by Michael Perkins, M.D.          Specifically,

Dr. Perkins testified that Palomo retained the functional capacity

to occasionally lift twenty pounds, frequently lift ten pounds,

stand and walk at least two hours per workday, and sit six hours

per workday. Dr. Perkins’s testimony provides substantial evidence

to   support   the   ALJ’s   determination   that   Palomo   retained   the

residual functional capacity for a wide range of sedentary work.

We find no error in the ALJ’s analysis.

                                     B

      Second, Palomo argues that the ALJ failed to consider the

mental and educational limitations reported by Lester Harrell,

Ph.D.   Specifically, Dr. Harrell found that Palomo was functioning

in the borderline range of intellectual functioning and that she

had a sixth-grade spelling level and fifth-grade reading level.



                                     5
      We conclude that the ALJ properly considered this evidence.

The ALJ specifically noted that Palomo’s intellectual functioning

was in the borderline range. Furthermore, the ALJ stated that this

level of functioning would not preclude Palomo from performing

unskilled work activity, which requires little or no judgment and

involves simple tasks that can be learned on the job in a short

period of time.     Moreover, Dr. Harrell never testified that Palomo

was unable to perform unskilled work, which does not require

academic skills or vocational preparation. We find no error in the

ALJ’s analysis.

                                       C

      Third, Palomo argues that the ALJ failed to provide a proper

rationale for its finding that her subjective complaints were not

entirely credible.      We defer to the ALJ’s findings, as it has the

responsibility to resolve questions of credibility.11             A claimant’s

subjective complaints must be corroborated, at least in part, by

objective medical evidence.12

      As the magistrate reported, the ALJ thoroughly discussed the

medical records which included extensive information on Palomo’s

complaints, impairments, aggravating factors, and treatment. Here,

      11
       See Dunbar v. Barnhart, 330 F.3d 670, 671 (5th Cir. 2003); Masterson v.
Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). In assessing credibility, we have
stated that “[s]ubjective evidence need not take precedence over objective
evidence.” Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1994).
      12
         See Wren v. Sullivan, 925 F.2d 123, 128-29 (5th Cir. 19991); see also 20
C.F.R. § 404.1508 (“A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only
by your statement of symptoms.”); 20 C.F.R. § 416.908 (same).

                                       6
the ALJ found that Palomo’s physical examinations were essentially

normal and that Palomo’s symptoms were reasonably well-controlled

with medication, even during two pregnancies.                  Moreover, the ALJ

noted gaps         in   Palomo’s    medical     treatment   from   March    2000    to

September 2000 and from December 2001 to January 2003.                      On this

evidence, we find that the ALJ could have reasonably concluded that

Palomo’s symptoms were not as severe as she alleged.                       Thus, the

ALJ’s findings are supported by substantial evidence.

                                            D

      Fourth, Palomo asserts that the ALJ erred in finding that she

had a high school education when, in fact, she had only completed

the ninth grade.          At most, this error is harmless.13           The social

security regulations consider a ninth-grade education to be a

“limited education,” which allows the person to perform unskilled

work.14     Here, the ALJ considered evidence from a vocational expert

that identified unskilled jobs that were within Palomo’s residual

functional capacity.         Moreover, Palomo has failed to show that her

ninth      grade    education      would   prevent   her    from   performing      the

unskilled work identified by the vocational expert and adopted by




      13
         See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (“Procedural
perfection in administrative proceedings is not required.”); see also Morris v.
Bowen, 864 F.2d 333, 335-36 (5th Cir. 1988) (applying harmless error standard in
social security case).

      14
       See 20 C.F.R. § 404.1564(b)(3) (“We generally consider that a 7th grade
through the 11th grade level of formal education is a limited education.”); see
also 20 C.F.R. § 416.964(b)(3) (same).

                                            7
the ALJ.        Thus, Palomo cannot show that the ALJ’s error affected

her substantial rights.

                                          E

      Fifth, Palomo contends that the ALJ and the district court

erroneously placed the burden of proof on Palomo to show that she

was not able to perform the work identified by the vocational

expert.       Palomo asserts that she is only required to show that she

cannot perform her past relevant work.               We disagree.        Under the

fifth-step of the evaluation process, the Commission bears the

burden of showing that there exists work in significant numbers in

the national economy that the claimant can perform.15                    Once such

jobs are identified, the burden shifts back to the claimant to

rebut      this   finding.16     The   ALJ    followed   this   burden-shifting

approach, and we reject Palomo’s contention to the contrary.

                                        III

      For the foregoing reasons, the Commissioner’s final decision

denying Palomo’s claim for benefits under the Social Security Act

is AFFIRMED.




      15
           See Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999).
      16
         See id.; Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000); Vaughan v.
Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (holding that claimant failed to meet
her burden of proof under disability test where she offered no evidence that she
was incapable of performing the type of work that the ALJ determined was
available).

                                          8
