                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT                    April 6, 2006

                                                          Charles R. Fulbruge III
                                                                  Clerk
                           No. 04-51133
                         Summary Calendar



PHILLIP L. STEPHENS,

                                    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. 1:04-CV-24
                       --------------------

Before SMITH, GARZA, and PRADO, Circuit Judges.

PER CURIAM:*

     Phillip L. Stephens appeals the district court’s judgment in

this 42 U.S.C. § 405(g) action upholding the administrative law

judge’s (ALJ) decision denying him disability benefits and social

security income.   This court reviews the decision “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).


     *
       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this opinion should not be published and is not precedent except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. 04-51133
                                -2-

     Stephens contends that the ALJ’s decision is not supported

by substantial evidence.   He argues that the ALJ erred by

refusing to give substantial weight to the assessments of Dr.

Raymond Henke.   Stephens submits that Dr. Henke’s findings were

deserving of substantial weight because they were based, in part,

on an objective test, the Minnesota Multiphasic Personality

Inventory.

     The medical expert and the ALJ noted that Dr. Henke’s

ratings of Stephens’s mental ability to perform work-related

activities assessments conflicted with other evidence of record.

“[T]he ALJ must consider all the record evidence and cannot ‘pick

and choose’ only the evidence that supports his position.”     Loza

v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (citation omitted).

“[C]onflicts in the evidence, including the medical evidence, are

to be resolved, not by a reviewing court, but by the ALJ.”     Carry

v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985).   The ALJ’s

determination that Dr. Henke’s assessments should not be given

substantial weight was based on a consideration of all the

evidence and thus will not be overturned.   See id.

     Stephens argues that he met the requirements for a listed

impairment, specifically, an affective disorder under listing

12.04.   See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.   “[T]he

required level of severity [for listing 12.04] is met when the

requirements in both [subsections] A and B are satisfied.”     Boyd
                            No. 04-51133
                                 -3-

v. Apfel, 239 F.3d 698, 703 n.8 (5th Cir. 2001) (internal

quotation marks omitted).

       Subsection B requires the claimant to show that his

activities have been impaired in at least two of four areas.

Stephens contends that he satisfies the requirements of two of

the areas of subsection B based on the testimony of the medical

expert.    The ALJ, however, disagreed with the medical expert’s

opinion that Stephens suffered from a marked limitation in social

functioning.    The ALJ’s determination that Stephens did not

suffer from a marked limitation in social functioning was based

on substantial evidence.    See Carry, 750 F.2d at 482.     Stephens

has not shown that the ALJ erred in determining that he did not

meet or equal a listed impairment.    See Boyd, 239 F.3d at 703

n.8.

       Stephens contends that the ALJ erred in failing to

incorporate several of Dr. Henke’s ratings into his determination

of Stephens’s residual functional capacity (RFC).     As discussed

above, the ALJ did not err in refusing to give substantial weight

to Dr. Henke’s assessments.    The ALJ’s RFC determination gave

proper consideration to the opinions of state agency medical

consultants.    See 20 C.F.R. § 404.1527(f)(2)(i).   The ALJ’s RFC

determination is supported by substantial evidence.       See Carry,

750 F.2d at 482.

       Stephens also argues that the ALJ erred by failing to

determine whether he would be able to maintain employment over a
                          No. 04-51133
                               -4-

significant period of time.   Stephens has not shown that his

case presents circumstances under which the ALJ is required to

make a separate finding that the claimant is able to maintain

employment over a significant period of time.   See Dunbar v.

Barnhart, 330 F.3d 670, 672 (5th Cir. 2003); Watson v. Barnhart,

288 F.3d 212, 217-18 (5th Cir. 2002).

     AFFIRMED.
