           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                            April 2, 2008
                                     No. 07-50829
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

JUDY BRYANT

                                                   Plaintiff - Appellant
v.

MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                   Defendant - Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 6:06-CV-15


Before JOLLY, PRADO, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Judy Bryant seeks review of the Commissioner of Social Security’s final
decision to deny her application for disability benefits.                     Because the
Commissioner’s decision is supported by substantial evidence and is consistent
with applicable law, we AFFIRM.
                                              I.
       In November 2002 Bryant filed an application for Disability Insurance
Benefits (DIB) and Supplemental Security Income (SSI) under Titles II and XVI



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                 No. 07-50829

of the Social Security Act. Bryant alleged that she was unable to work due to
deterioration of bones, scoliosis, spina bifida, nerve damage, and pain. Her
claims were denied initially and upon reconsideration. On July 9, 2004, Bryant
received a hearing before the Administrative Law Judge. The ALJ denied
benefits upon determining that Bryant is not disabled under the Social Security
Act. The ALJ found that Bryant has a disorder of the spine and that the
disorder is a severe impairment that does not meet or equal requirements of any
of the impairments listed in the Listing of Impairments. The ALJ further found
that Bryant had the residual functional capacity
            to lift and/or carry 10 pounds occasionally and less than
            10 pounds frequently, to stand and/or walk for about 6
            hours in an 8-hour workday, to sit for about 8 hours in
            an 8 hour workday with a need to alter sitting and
            standing periodically, never to kneel or crawl,
            occasionally to climb, balance, crouch or stoop, and
            never to work in vibrations, around moving machinery,
            or at unprotected heights.
Therefore, the ALJ found that Bryant has the residual functional capacity to
perform less than the full range of sedentary work. He found that there are a
significant number of jobs in the national economy that she can perform. The
Appeals Council denied Bryant’s request for review, making the ALJ’s decision
the final decision of the Commissioner.
      Bryant appealed to the district court. The parties consented to proceed
before a magistrate judge, who affirmed the decision of the ALJ.
                                       II.
      Bryant contends on appeal, as she did in the district court, that the ALJ’s
decision that she has the residual functional capacity to perform a significant
number of jobs is not supported by substantial evidence. She also contends that
the ALJ did not give proper weight to the records and opinion of her treating and




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examining doctors. Finally, Bryant contends that the ALJ did not use the
appropriate legal standard to determine that her testimony was not credible.
                                         III.
      We review the Commissioner’s decision to deny social security benefits
only to determine whether the decision is supported by substantial evidence and
based on proper legal standards. Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir.
2002). Substantial evidence is “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). We may not
reweigh the evidence or substitute our own judgment for that of the
Commissioner. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
      The magistrate judge’s order carefully addresses Bryant’s claims. We
agree with the reasoning and decision of the magistrate judge that the ALJ’s
decision was supported by substantial evidence and based on proper legal
standards. In the light of the magistrate judge’s thorough and well-reasoned
order, only a few of Bryant’s arguments need be addressed here.
                                          A.
      Bryant contends that the ALJ did not give proper weight to the opinion of
one of her treating doctors, Patrick Cindrich, and did not sufficiently resolve
conflicts in the evidence.
      Dr. Cindrich performed back surgery on Bryant in August 2003.1 Bryant
was examined by Dr. Brett Bolte in November 2003. The ALJ noted Dr. Bolte’s
findings that Bryant’s cervical range of motion is normal without significant
complaints of pain and his diagnosis of spondylolistheses and low back pain
status post laminectomy. Dr. Bolte reported that Bryant was not stable and that
no long-term evaluation of her residual functional capacity was possible. Dr.


      1
         Dr. Cindrich performed an L5-S1 decompression, instrumentation and iliac crest
fusion for arthrodesis.

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                                       No. 07-50829

Bolte evaluated her short term function, finding that Byrant can lift and/or carry
10 pounds occasionally and less than 10 pounds frequently, that she can stand
and/or walk for about 6 hours in an 8-hour workday, that she can sit for about
6 hours in an 8-hour workday, that she must alternate sitting and standing
periodically to relieve pain or discomfort, that she never can kneel or crawl, that
she occasionally can climb ramps or stairs, balance, crouch or stoop, and that she
has a limited ability to work in vibrations, around moving machinery or at
unprotected heights.
       In May 2004, Dr. Cindrich found that Bryant continued with back pain
and that her persistent spondylolisthesis required additional surgery. On July
7, Dr. Cindrich scheduled an anterior lateral interbody fusion of the lumbar
spine on July 14, with a post operative recovery period of six to eight weeks.
       Bryant contends that evidence from Dr. Cindrich, provided after Dr.
Bolte’s examination and report, indicates that the ALJ’s finding was not
supported by substantial evidence and that the ALJ did not use the correct legal
standard to evaluate her treating doctor’s evidence. Bryant contends that the
ALJ could not reject the opinion of her treating physician without performing a
detailed analysis of the treating physician’s views under the criteria set forth in
20 C.F.R. § 404.1527(d).2 Section 404.1527(d) provides that, “[u]nless we give a
treating source’s opinion controlling weight . . . we consider all the following
factors in deciding the weight we give to any medical opinion.” The section then
lists six factors: examining relationship, treatment relationship, supportability,
consistency with the record, and specialization.
       Contrary to Bryant’s assertion, the ALJ did not reject Dr. Cindrich’s
opinion.    The ALJ noted Dr. Cindrich’s May and July 2004 findings and

       2
        Section 404.1527 relates to the evaluation of opinion evidence to determine disability
for Federal Old-Age, Survivors and Disability Insurance. 20 C.F.R. § 416.927 contains
identical provisions concerning the evaluation of opinion evidence to determine disability for
SSI.

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considered the impact of the additional surgery in determining whether Bryant
was disabled. Bryant argues that “[s]urgery is not performed on perfectly
healthy backs which create no limitation on the individual.” The fact that Dr.
Cindrich ordered additional back surgery does not refute the other evidence in
the record supporting the ALJ’s determination of Bryant’s residual functional
capacity. Dr. Cindrich made no statements regarding Bryant’s limitations after
the expected recovery period of six to eight weeks. Dr. Cindrich’s opinion was
not inconsistent with the other evidence and was taken into account by the ALJ.
      The ALJ found that Bryant has a disorder of the spine. Dr. Cindrich’s
2004 opinions indicated that Bryant had spondylolisthesis that would require an
additional surgery. The ALJ’s finding did not conflict with Dr. Cindrich’s
opinion. Dr. Cindrich did not provide an opinion relating to whether Bryant was
disabled or what her residual functional capacity would be, other than to state
that the surgery required a six to eight week recovery. In addition, although the
ALJ did not list the factors stated in § 404.1527(d), the decision indicates that
he considered those factors in evaluating Dr. Cindrich’s medical opinion. The
ALJ cited sections 404.1527 and 414.927 and supplemental Social Security
Rulings 96-2p and 96-6p in the decision. The decision also details Dr. Cindrich’s
examining and treatment relationship with Bryant, as reflected by the evidence
submitted. The ALJ noted Dr. Cindrich’s specialization as a neurosurgeon. The
ALJ also noted that Dr. Cindrich did not state that Bryant would be disabled
and did not note any restrictions, indicating that Dr. Cindrich’s opinion was
consistent with the other medical evidence. In sum, the ALJ’s decision reflects
that he considered the relevant factors in weighing Dr. Cindrich’s opinion and
did not use an inappropriate legal standard.




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                                                B.
       Bryant also contends that the ALJ failed to include an adequate narrative
discussion addressing her residual functional capacity, as required by Social
Security Ruling 96-8p.3 Although the Social Security Administration’s rulings
are not binding on this court, we have consulted them “when the statute at issue
provides little guidance.” Meyers v. Apfel, 238 F.3d 617, 620 (5th Cir. 2001). In
Meyers, we found that the ALJ erred by not fully addressing the plaintiff’s
residual functional capacity, failing to fully address standing, walking, and
pushing/pulling or whether the plaintiff could perform functions on a regular
and continuing basis. Id. at 621. Moreover, the court found that the medical
evidence as a whole conflicted with the ALJ’s findings. Id.
       The ALJ here specifically addressed Bryant’s ability to lift, carry, stand,
walk, sit, kneel, crawl, climb, balance, crouch and stoop.4 He addressed the
frequency with which Bryant could perform the activities described during an
eight hour workday. The discussion of Bryant’s residual functional capcity also


       3
         SSR 96-8p provides that “[t]he RFC assessment must include a narrative discussion
describing how the evidence supports each conclusion, citing specific medical facts (e.g.
laboratory findings) and nonmedical evidence (e.g., daily activities, observations). In assessing
RFC, the adjudicator must discuss the individual’s ability to perform sustained work activities
in an ordinary work setting on a regular and continuing basis (i.e., 8 hours a day, for 5 days
a week, or an equivalent work schedule), and describe the maximum amount of each work-
related activity the individual can perform based on the evidence available in the case record.”
       4
          Although the ALJ did not make a finding regarding Bryant’s ability to push or pull,
Bryant does not assert the lack of such a finding as error. Moreover, on the face of the
applicable regulation, sedentary work does not involve pushing or pulling. 20 C.F.R. §
404.1567(a) (“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a
sedentary job is defined as one which involves sitting, a certain amount of walking and
standing is often necessary in carrying out job duties. Jobs are sedentary if walking and
standing are required occasionally and other sedentary criteria are met.”). Cf. 20 C.F.R. §
404.1567(b) (“Light work involves lifting no more than 20 pounds at a time with frequent
lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be
very little, a job is in this category when it requires a good deal of walking or standing, or when
it involves sitting most of the time with some pushing and pulling of arm or leg controls.”).


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addressed the primary evidence upon which the findings were based: Bryant’s
testimony; the opinion of her treating physician, Dr. Cindrich; and the opinion
of the examining physician, Dr. Bolte. The ALJ stated that he gave less weight
to the opinions of physicians who only examined Bryant’s medical records.
Bryant does not identify any evidence of particular limitations that were not
found by the ALJ.
      Bryant also asserts that some of the jobs the vocational expert referenced
at her hearing are not sedentary, but instead are described in the Dictionary of
Occupational Titles (“DOT”) as “light” in terms of exertional requirements. The
vocational expert testified, however, that all of the jobs she cited were at the
“sedentary, unskilled level.” Bryant’s counsel had an opportunity at the hearing
to cross-examine the expert regarding her classification of the jobs she cited, but
did not do so. See Carey v. Apfel, 230 F.3d 131, 146-47 (5th Cir. 2000)
(“[C]laimants should not be permitted to scan the record for implied or
unexplained conflicts between the specific testimony of an expert witness and
the voluminous provisions of the DOT, and then present that conflict as
reversible error, when the conflict was not deemed sufficient to merit adversarial
development in the administrative hearing.”).           Accordingly, the ALJ’s
determination of Bryant’s residual functional capacity was not inconsistent with
SSR 96-8p and was supported by substantial evidence.
                                         IV.
       For the foregoing reasons, and for the reasons given by the magistrate
judge in his thorough opinion, we hold that the ALJ’s decision was supported by
substantial evidence and based upon the proper legal standards. The decision
of the district court is therefore
                                                                     AFFIRMED.




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