                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS
                                                                  December 20, 2006
                         FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                                                                       Clerk

                                 06-50420
                             Summary Calendar



     JOETTA WILSON,

                                           Plaintiff-Appellant,

                                      v.

     JO ANNE B BARNHART,
     Commissioner of Social Security,

                                           Defendant-Appellee.



         Appeal from the United States District Court for the
                   Western District of Texas, Austin
                             No. 1:05-CV-23



Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

     Joetta    Wilson,   a   social   security   claimant,    appeals      the

district court’s decision to affirm the administrative law judge’s

finding that she was not under a disability.        We affirm.

     I.     BACKGROUND

     In 2001, Wilson filed an application for supplemental security

income (SSI) under Title XVI of the Social Security Act, 42 U.S.C.


     *
       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this opinion should not be published and is not precedent except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.
§ 401, et seq., alleging that her inability to work began on

October 1, 2001.        The Commissioner found that Wilson was not

disabled.      After    the     Commissioner     denied   her     request    for

reconsideration,       Wilson     requested      a    hearing      before     an

administrative law judge (ALJ).

     After a hearing, the ALJ found that Wilson had not engaged in

substantial gainful activity since the alleged onset of disability.

The ALJ concluded that Wilson’s conditions, including diabetes and

moderate degenerative joint disease, did not “meet or medically

equal one of the listed impairments” in the regulations.               The ALJ

found that Wilson had the residual functional capacity to perform

a significant range of light work.            The ALJ therefore found that

Wilson was not disabled and denied the disability benefits.

     After exhausting her administrative remedies, Wilson sought

review in federal district court under § 205(g) of the Social

Security Act, 42 U.S.C. § 405(g).           A magistrate judge recommended

affirming the Commissioner’s decision, and the district court

accepted the    recommendation        and   entered   judgment    accordingly.

Wilson appeals.

     II.    STANDARD OF REVIEW

     We review a 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,



                                        2
209 F.3d 448, 452 (5th Cir. 2000).   A final decision is supported

by substantial evidence if we find relevant evidence sufficient to

establish that a reasonable mind could reach the same conclusion

reached by the Commissioner.     See id.    In our review of the

evidence, we do not substitute our judgment for the Commissioner’s

judgment.   See id.    If there are conflicts in the evidence, we

accept the Commissioner’s resolution of those conflicts so long as

that resolution is supported by substantial evidence.   See id.

     III. ANALYSIS

     Wilson argues that substantial evidence does not support the

ALJ’s decision finding that she was not disabled as defined in the

Social Security Act.   The ALJ uses a sequential five-step inquiry

to evaluate disability claims:

     (1) whether the claimant is currently engaged in
     substantial gainful activity (whether the claimant is
     working); (2) whether the claimant has a severe
     impairment; (3) whether the claimant’s impairment meets
     or equals the severity of an impairment listed in 20
     C.F.R., Part 404, Subpart B, Appendix 1; (4) whether the
     impairment prevents the claimant from doing past relevant
     work (whether the claimant can return to his old job);
     and (5) whether the impairment prevents the claimant from
     doing any other work.

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).

     More specifically, Wilson contends that substantial evidence

does not support the finding made pursuant to step five—that she

had the residual functional capacity to perform the work of a

ticket taker, an office helper and a cashier II.   She argues that

the ALJ erred in ignoring the “serious issue of the literacy level

                                 3
and cognitive functioning of Ms. Wilson based on her ability to

complete the questions sent to her.”                    Wilson did not allege a

mental impairment in her application for disability or at the

hearing.     Even    assuming     arguendo       Wilson’s        responses     to   the

questionnaire     somehow    demonstrated         a     limitation      in    Wilson’s

cognitive   functioning,     Wilson       has    not     shown    how   the    alleged

limitation affects her ability to perform the particular jobs the

ALJ found she could perform.            See id. at 464.

     Wilson next contends that the ALJ erred by ignoring evidence

that she suffered from depression.              Wilson did not assert that she

was depressed in her application or at the hearing.1                          The only

evidence of depression she cites is one page out of the hundreds of

pages of medical records in which her physician indicates “possible

depression.”      Under these circumstances, the ALJ did not err in

failing to consider a possible mental impairment.                  Cf. Domingue v.

Barnhart, 388 F.3d 462, 463 (5th Cir. 2004) (finding no error when

claimant    did   not   raise     depression       as    an   impairment       at   the

administrative      level   and    on    appeal       “pointed    to    no    evidence

indicating that her alleged depression affected her ability to

work”).

     Wilson also argues that the ALJ’s conclusion that she could

perform a significant range of light work is not consistent with


     1
       Subsequent to the hearing, Wilson’s attorney did suggest a
psychological evaluation to exclude malingering or a somatoform
disorder. However, there was no allegation of depression.

                                         4
the medical evidence. Wilson further contends that the ALJ did not

address these conditions. Contrary to Wilson’s assertions, the ALJ

expressly    considered      her    conditions.         For    example,      the    ALJ

explained that “[d]espite her complaints of disability due to

diabetes mellitus, hypertension, and pain in her arm and leg, the

medical     evidence     demonstrates          that   with     proper      treatment,

medication       compliance,       and     adherence      to     the      physicians’

instructions, the claimant’s conditions improved.”                       The ALJ then

cited examples gleaned from Wilson’s medical records.                           The ALJ

thoroughly       discussed   Wilson’s      medical      history,    including       the

opinions    of    Dr.   Tran,   Dr.      Ramos,   Dr.    Buck,     and    Dr.    Welch.

Ultimately, the ALJ concluded that although Wilson’s conditions

“could be expected to cause some limitations, the claimant’s

allegations of disabling conditions are out of proportion to the

record as a whole and cannot be given great evidential weight.”

There is substantial evidence to support this determination, and we

thus affirm it.

     Wilson further argues that the ALJ failed to properly evaluate

her credibility.        We disagree.           The ALJ adequately considered

Wilson’s symptoms and claimed limitations, and properly analyzed

the findings in light of her allegations and the medical evidence.

     Wilson also argues that the ALJ erred in failing to make a

specific affirmative finding that she had the ability to work on a

sustained basis.        An ALJ is not required to make “an explicit

finding in every case that the claimant cannot only engage in

                                           5
substantial gainful activity but maintain that employment as well.”

Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003).2    Here, the

record demonstrates that the ALJ took into consideration whether

Wilson could maintain employment in determining residual functional

capacity.   The ALJ specifically questioned the vocational expert

regarding the maximum amount of absenteeism an employer would

tolerate “or they’re not going to be able to maintain it.”   Wilson

has failed to provide evidence that required the ALJ to make a

separate finding regarding her ability to maintain employment. See

Frank v. Barnhart, 326 F.3d 618, 619-20 (5th Cir. 2003).

     In sum, Wilson has failed to demonstrate either that improper

standards were used to evaluate the evidence or that the final

decision was not supported by substantial evidence.    The district

court’s judgment is AFFIRMED.




     2
        As in Dunbar,     the ALJ found in the instant case, after
hearing the testimony    of a vocational expert, that the claimant
“was capable of making   a successful adjustment to work that exists
in significant numbers   in the national economy.”

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