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

                                                 FILED
                                                                           March 20, 2009

                                       No. 08-50166                    Charles R. Fulbruge III
                                                                               Clerk

JESSICA VILLALPANDO,

                                                   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
                                  1:07-CV-109


Before DAVIS, SMITH, and OWEN, Circuit Judges.
PER CURIAM:*
       Claimant/appellant challenges the district court order affirming an order
of the Commissioner of Social Security that denied her application for disability
insurance benefits and supplemental security income. Specifically, claimant
alleges that the Commissioner erred in failing to properly weigh the opinion of
her treating physician; failing to find her disabled from doing past work; and




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-50166

failing to credit claimant’s testimony regarding her limitations. Substantial
evidence supported the Commissioner’s decision. Therefore, we affirm.
                                          I.
      Ms. Jessica Villalpando is a thirty-three year old woman with a high
school education. When she was in the workforce, she worked as a day care
worker, sales clerk telephone operator and cashier. Ms Villalpando applied for
disability insurance benefits and supplemental security income in 2004. She
alleged disability that began in November 2003 due to fibromyalgia, lumbar disc
disease, seizures, migraine headaches, and chronic pain. After examining the
relevant evidence, an administrative law judge (ALJ) found that petitioner was
not disabled. The Appeals Council denied claimant’s request for review, making
the ALJ’s decision the final decision of the Commissioner of Social Security (“the
Commissioner”). Claimant timely filed a complaint in district court to review
the Commissioner’s decision. The district court affirmed. Claimant then lodged
this appeal.
      Claimant argues that: (1) the ALJ erred by not giving sufficient weight to
the opinion of claimant’s treating physician; (2) the ALJ failed to find that she
was disabled from doing past work; (3) the ALJ improperly failed to credit
claimant’s testimony regarding her limitations. We take each issue in order.
                                         II.
                                          A.
      The standard of review for social security benefits cases is: “(1) whether
the Commissioner applied the proper legal standard; and (2) whether the
Commissioner’s decision is supported by substantial evidence.”            Waters v.
Barnhart, 276 F.3d 716, 718 (5th Cir. 2002); 42 U.S.C. § 405 (g). The reviewing
court may not “re-weigh the evidence, but may only scrutinize the record to
determine      whether   it   contains   substantial   evidence   to   support   the
Commissioner’s decision. Legget v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).

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“Substantial evidence is more than a scintilla, less than a preponderance, and
is such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Villa v. Sullivan, 895 F.2d 1019, 1021-22 (5th Cir. 1990).
                                        B.
      Claimant first argues that the ALJ did not give proper weight to the
opinions provided by Dr. De Jesus, the treating physician, and failed to perform
the detailed analysis of the treating physician’s views under the criteria set forth
in 20 C.F.R. § 404.1527(d).     She also argues that the ALJ’s opinion is not
supported by substantial evidence.
      Dr. De Jesus saw the patient every one to four months from January 2002
through November of 2005. Claimant’s reported symptoms and the physician’s
recommendations and treatment varied somewhat over that period. Claimant
reported pain to De Jesus on each visit. Reports of severe pain were rare; the
complaints were usually reported as mild or moderate. Between 2002 and 2005,
claimant used various pain-relief medications including: Duragesic, MS Contin,
Soma, Zanaflex, Lidoderm, Depo-Medrol, Kadian, Darvocet, and Lortab. During
some visits, she reported that these drugs helped her, while at other times the
pain persisted.
      Claimant’s other symptoms also varied from visit to visit. In some reports,
Dr. De Jesus noted morning stiffness lasting up to four hours, whereas in the
last visit, the stiffness was less than one hour. Although part of De Jesus’
impression in the first visits was “posttraumatic lumbar disc disease,” this
impression does not appear in the visits after 2003. Notably, Dr. De Jesus never
reported swelling of the joints and the physical tests he performed always
indicated mild to moderate joint discomfort. Dr. DeJesus noted few if any
objective findings such as swelling, decreased joint mobility or poor muscle tone.
      In the last reported visit, Dr. De Jesus performed a Muscoloskeletal
Examination in which he found claimant had a “fair range of motion of the joints

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. . . but mild discomfort” on certain areas of the back. It was in this report that
he first noted that patient had “chronic disability from job activities.” The ALJ
declined to assign controlling weight to this report.
      “Ordinarily the opinions, diagnoses, and medical evidence of a treating
physician who is familiar with the claimant's injuries, treatments, and responses
should be accorded considerable weight in determining disability.” Scott v.
Heckler, 770 F.2d 482, 485 (5th Cir. 1985). Unless the ALJ gives a treating
source’s opinion controlling weight, he must consider the factors set forth in 20
C.F.R. § 404.1527(d) to decide the weight to be given to any medical opinion.
However, “[t]he ALJ has the sole responsibility of determining the disability
status.” Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). The six factors in
subsection (d) of 20 C.F.R. § 404.1527 apply only with respect to the medical
opinions of treating physicians.
      Subsection (d) is entitled "How we weigh medical opinions" and
      explicitly applies only to "medical opinions." Subsection (e) of the
      regulation expressly explains that some opinions by physicians are
      not medical opinions, and as such have no "special significance" in
      the ALJ's determination. 20 C.F.R. § 404.1527(e) &(e)(3). Among the
      opinions by treating doctors that have no special significance are
      determinations that an applicant is "disabled" or "unable to work."
      20 C.F.R. § 404.1527(e)(1). These determinations are legal
      conclusions that the regulation describes as "reserved to the
      Commissioner." The factors set out at subsection (d) apply only to
      medical opinions, not opinions "reserved to the Commissioner."


Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003). The ALJ did not reject the
De Jesus’ medical opinion or findings that claimant suffered from “chronic pain,
history of seizures, fibromyalgia and depression.” Rather, the ALJ found that
these conditions did not support the physician’s opinion of “chronic disability
from job activities.”




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      First, the ALJ found De Jesus’ opinion that claimant was disabled
inconsistent with his previous report that claimant was capable of taking care
of herself and that she could “perform a wide-range of daily activities without
limitation.”      The ALJ also noted         that although   claimant’s   reported
symptomatology was similar in all of De Jesus’ reports, the claimant worked 40
hours per week during her initial visits before she filed the disability claim. The
ALJ also observed that after filing her social security claim, claimant did briefly
work as a day-care worker, although not full time.
      In summary, despite claimant’s medical conditions and complaints, the
ALJ also noted the absence of objective medical findings, the relatively mild
complaints reported to Dr. DeJesus and as well as evidence of claimant’s
activities in its conclusion that claimant was not disabled. That decision is
supported by substantial evidence in the record. The ALJ was not required to
give controlling weight to De Jesus’ opinion on disability and no findings under
20 C.F.R. § 404.1527(d) were required.
                                        B.
      Claimant next argues that the ALJ erred in failing to find the claimant
disabled under step four of the “five-step sequential evaluation process” used to
determine disability. See 20 C.F.R. §404.1520(a)(4). The fourth step requires an
assessment of the claimant’s residual functional capacity to determine if the
claimant is disabled from doing past relevant work. In addition to Dr. DeJesus’
testimony, the ALJ considered the consultive examination of Dr. George
Robinson.      Dr. Robinson reported mild complaints of pain but no objective
findings such as muscle spasms or limited range of motion. Based on this
evidence, the evidence of claimant’s activities and the testimony of a Vocational
Expert (VE), the ALJ found that the claimant was capable of performing her
past relevant work of daycare worker, sales clerk, telephone operator, and



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cashier-checker. Therefore, the ALJ did not find claimant disabled under step
4.
      Claimant argues that if her pain, fatigue, and “angry mood” were
considered in the residual functional capacity assessment, the ALJ would have
found her disabled under “step four.” As indicated above, the ALJ did consider
claimant’s pain and fatigue. The ALJ specifically noted that due to “reports of
pain . . . additional limitations are present that were not considered by the State
Agency.” Based on that finding, the ALJ reduced claimant’s functional capacity
from “medium work” to “light work.”
      The ALJ also considered the claimant’s mental state. Only one of three of
claimant’s psychological evaluations indicated significant depressive symptoms.
However, the ALJ was entitled to conclude from the record that claimant’s use
of Zoloft quickly eased her brief struggles with serious depression. While the
ALJ found that claimant does sometimes experience depressive symptoms, the
ALJ also determined that the claimant was mentally capable of competitive
work. Because the ALJ employed the correct analysis and based his decision on
substantial evidence, the ALJ did not err in concluding that claimant was not
disabled under step 4.
                                        C.
      Claimant argues finally that the ALJ improperly refused to credit the
plaintiff’s own testimony regarding her limitations.        The ALJ has broad
discretion in making credibility determinations and we find no basis in the
record to second guess his credibility calls.
                                       III.
      Because the Commissioner’s order is supported by substantial evidence,
we affirm the judgment of the district court.
      AFFIRMED.



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