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

                                                                            FILED
                                                                           May 13, 2008
                                     No. 07-51160
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




ANTONIO HERNANDEZ,

                                                  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. 1:06-CV-416


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       The Commissioner of Social Security (“Commissioner”) denied Antonio
Hernandez disability benefits under Title II of the Social Security Act, 42 U.S.C.
§ 423, and Hernandez challenged the denial in district court. The court affirmed
the Commissioner’s decision, a decision that Hernandez appeals. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-51160

                     I. Factual and Procedural History
      Hernandez is a forty-year-old, Hispanic male with limited English
communication skills: he can speak, read, and write some English but has
trouble understanding English speakers who speak too quickly. In June 1995,
he sustained a back injury performing his dry-walling job, obtained care through
a workers’ compensation claim, and received orders from his treating physicians
to refrain from work. In early 1996, however, he received clearance to return to
work with some lifting restrictions.
      Hernandez’s condition deteriorated, and in June 1997 he was diagnosed
with degenerative disc disease and underwent back surgery. Thereafter, he
received several post-surgery evaluations from the Texas Workforce Commission
(“TWC”). In January 1998, he was found to have a 12% total body impairment
rating, which increased to 17% in April 1998. In May 1999, however, TWC found
that he had only a 7% impairment rating.
      No record exists of Hernandez receiving further treatment for his ailment
until 2004, when Dr. Elena Arizmendez examined him in a referral by the Texas
Rehabilitation Commission. Hernandez also obtained a second opinion during
that year from his former physician, Dr. Albert Molnar. The lack of consistent
treatment to that point was allegedly because Hernandez was unaware that he
could continue treatment through workers’ compensation and sought treatment
in Mexico instead.
      On April 5, 2004, Hernandez applied for disability benefits due to back
pain and leg weakness. After the Commissioner denied the application initially
and on reconsideration, an administrative law judge (“ALJ”) held a hearing on
December 14, 2005, pursuant to Hernandez’s request. The ALJ found from
Hernandez’s testimony and the medical evidence that Hernandez’s degenerative
disc disease, chronic pain syndrome, and failed back syndrome are “severe”
impairments as defined by 20 C.F.R. § 404.1520(c), but that Hernandez retains
the residual functional capacity to lift ten pounds occasionally and less than ten

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pounds frequently, to stand or walk (not more than one city block) two hours in
an eight-hour workday at one-hour intervals, and to sit six hours in an eight-
hour workday at one-hour intervals with the option to stand and stretch at his
workstation. In addition, the ALJ found that although Hernandez is “unable to
communicate in English” within the meaning of 20 C.F.R. § 404.1564, he is “able
to read, write, and understand simple English instructions.”
      A vocational expert testified that an individual with Hernandez’s
particular restrictions would be able to perform a significant range of sedentary
work as well as some jobs classified as light work under 20 C.F.R. § 404.1567.
Nevertheless, the ALJ told the vocational expert to identify only sedentary jobs
available to Hernandez. The vocational expert testified that Hernandez would
be able to perform several different jobs, including those of bench assembler,
escort driver, surveillance monitor, addresser, and cutter and paster.
      The ALJ specifically inquired as to whether Hernandez’s English skills
would be sufficient for each of the jobs suggested by the vocational expert. The
ALJ rejected the vocational expert’s opinion that Hernandez could perform the
job of cutter and paster on grounds that it required more English reading
proficiency than Hernandez possessed. The ALJ further rejected the possibility
of escort driver because it might require Hernandez to sit without a break for
more than an hour at a time. The ALJ found, however, that Hernandez would
be capable of performing the job of bench assembler, addresser, or surveillance
monitor, and that each of these jobs exists in significant numbers in the national
economy. As a result, the ALJ found that Hernandez is not disabled under 20
C.F.R. § 404.1520(g) and is not entitled to disability benefits.
      Thereafter, on June 8, 2006, Hernandez filed his complaint with the
district court seeking review of the final decision pursuant to 42 U.S.C. § 405(g).
A magistrate judge recommended that the decision be affirmed, and the district
court adopted the recommendation on September 17, 2007. Hernandez appeals.



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                                        No. 07-51160

                               II. Standard of Review
       Our review of the Commissioner’s decision is limited under 42 U.S.C. §
405(g) to two inquiries: (1) whether substantial evidence supports the decision;
and (2) whether the decision comports with relevant legal standards. Greenspan
v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). If substantial evidence supports the
Commissioner’s decision, the findings are conclusive and the decision must be
affirmed. Richardson v. Perales, 402 U.S. 389, 401 (1971). “Substantial evidence
is that which is relevant and sufficient for a reasonable mind to accept as
adequate to support a conclusion; it must be more than a scintilla, but it need
not be a preponderance.” Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992);
see also Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994). It is the role of the
Commissioner, and not the courts, to resolve conflicts in the evidence. Brown v.
Apfel, 192 F.3d 492, 496 (5th Cir. 1999) (citation omitted). As a result, this court
“cannot reweigh the evidence, but may only scrutinize the record to determine
whether it contains substantial evidence to support the Commissioner’s
decision.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). A finding of no
substantial evidence is warranted only “where there is a conspicuous absence of
credible choices or no contrary medical evidence.” Johnson v. Bowen, 864 F.2d
340, 343–44 (5th Cir. 1988) (internal quotation marks and citation omitted).
                                 III. Burden of Proof
       A claimant is “disabled” as defined in the Social Security Act if he is
unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Commissioner uses a
sequential, five-step approach to determine whether a claimant is so disabled.1


       1
         The steps include: (1) whether the claimant is presently performing substantial gainful
activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets
or equals a listed impairment; (4) whether the impairment prevents the claimant from doing

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                                     No. 07-51160

Hernandez carried the burden of proof under the first four parts of the inquiry.
Leggett, 67 F.3d at 564. The burden of proof then shifted to the Commissioner
at the fifth step to establish the existence of other available substantial gainful
employment that Hernandez could perform. Fraga v. Bowen, 810 F.2d 1296,
1301–02 (5th Cir. 1987). Once the Commissioner identified suitable alternative
employment, the burden of proof shifted back to Hernandez to prove that he
could not perform the alternative work identified. Id. at 1302. Throughout the
process, however, the ultimate burden of establishing disability remained with
Hernandez. Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983).
                                  IV. Discussion
      Hernandez alleges three points of error in the district court’s
determination that substantial evidence supports the final administrative
decision that he was not disabled within the meaning of the Social Security Act:
first, the Commissioner failed to properly evaluate the physician opinions of
record in assessing Hernandez’s residual functional capacity; second, the
Commissioner’s finding that Hernandez is able to perform other work existing
in significant numbers in the national economy lacks substantial evidence; and
third, the Commissioner failed to properly assess Hernandez’s credibility.
      A. Physician Opinions of Record
      Hernandez argues that the Commissioner failed to properly consider the
treating and examining physicians’ opinions in determining his residual
functional capacity. As an initial matter, he contends that the Commissioner
erred in finding that “the medical record provides little or no evidence as to the
claimant’s treatment for his impairments from 1999 forward” in light of Dr.
Molnar’s 2004 report, which explains that Hernandez sought treatment in
Mexico during the interim because he was unaware that he could obtain further



past relevant work; and (5) whether the impairment prevents the claimant from performing
any other substantial gainful activity. 20 C.F.R. §§ 404.1520(a), 416.920(a).

                                           5
                                       No. 07-51160

workers’ compensation treatment in the United States. As the district court
noted, however, Dr. Molnar’s report indicates that the only record of this
treatment in Mexico is a physician’s letter given to him by Hernandez, which is
not included in the record. In addition, the district court correctly observed that
even considering Dr. Molnar’s report and Hernandez’s testimony regarding the
alleged treatment in Mexico, the record is bereft of any specific facts regarding
any medical treatment or diagnosis between Hernandez’s last treatment by Dr.
Molnar in October 1998 and the end of his insured period in December 2001. As
a result, the Commissioner did not err in finding a lack of reliable evidence of
medical treatment after 1999.
       Hernandez further argues that the Commissioner erred in discounting Dr.
Molnar’s and Dr. Arizmendez’s opinions in their 2004 reports regarding the
extent of his disability.2 Dr. Molnar’s opinion is that “it is very reasonable . . .
that [Hernandez’s] pain . . . is due to his old injury and his old surgical
procedure,” and that “[Hernandez] is probably going to have a difficult time
finding employment, either sitting or standing, or bending or twisting. He
simply cannot do these activities.” Dr. Arizmendez’s opinion is that Hernandez
“is unable to lift more than half a gallon of milk and . . . is developing gout in his
hands,” and that “[h]is return to work . . . will likely be confounded by the lifting
restrictions, the need for frequent changes in position . . . and limitations with
activities . . . given his development of gout.”
       It is well settled that although 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,” such evidence is not conclusive; rather, the ALJ bears


       2
           Hernandez also points to a pre-surgery 1997 report of his treating physician, Dr.
George Tipton, wherein Dr. Tipton states that he discussed Hernandez’s upcoming surgery and
told him that “the more sedentary his occupation the more likely it would be to have long-term
relief of symptoms.” This opinion, however, directly supports the residual functional capacity
finding for a significant range of sedentary work.

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                                  No. 07-51160

“the sole responsibility for determining the claimant’s disability status.”
Greenspan, 38 F.3d at 237 (internal quotation marks and citations omitted). As
this court has explained:
      [W]hen good cause is shown, less weight, little weight, or even no
      weight may be given to the physician’s testimony. The good cause
      exceptions we have recognized include disregarding statements that
      are brief and conclusory, not supported by medically acceptable
      clinical laboratory diagnostic techniques, or otherwise unsupported
      by the evidence. Scott [v. Heckler, 770 F.2d 482, 485 (5th Cir.
      1985)]. In sum, the ALJ “is entitled to determine the credibility of
      medical experts as well as lay witnesses and weigh their opinions
      accordingly.” Id.; see also 20 C.F.R. § 404.1527(c)(2) (“If any of the
      evidence in your case record, including any medical opinion(s), is
      inconsistent with other evidence or is internally inconsistent, we
      will weigh all the other evidence and see whether we can decide
      whether you are disabled based on the evidence we have.”).

Greenspan, 38 F.3d at 237; see also 20 C.F.R. § 404.1527(d) (stating that in
weighing medical opinions, the ALJ should consider the examining relationship,
the treatment relationship, supportability, consistency with the record, and
specialization).
      Here, as noted by the district court, Dr. Molnar’s and Dr. Arizmendez’s
2004 reports, conducted almost three years after the expiration of Hernandez’s
insured period, are relevant only insofar as they bear on his condition between
1997, the alleged onset date of the disability, and 2001, the date on which his
benefits ended.    See Anthony, 954 F.2d at 295 (explaining that to prove
entitlement to disability benefits under Title II, the claimant must prove not
only that he is disabled, but also that he became disabled before the end of the
insured period). In addition, while both Dr. Molnar and Dr. Arizmendez opined
that Hernandez’s physical symptoms would severely restrict his ability to work,
the ALJ was entitled to disregard these conclusory statements and to rely
instead on the more specific medical diagnosis in Dr. Arizmendez’s report that




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                                        No. 07-51160

Hernandez suffers from chronic pain syndrome and failed back syndrome.3
       Contrary to Hernandez’s argument, moreover, the ALJ did not “reject” Dr.
Arizmendez’s opinion but afforded it “the greatest weight,” incorporating most
of the limitations outlined in her evaluation in his residual functional capacity
finding. Although Dr. Arizmendez limited Hernandez to working only four hours
a day, the ALJ was nonetheless justified in finding that Hernandez had the
capacity to work eight hours a day, particularly in light of Dr. Arizmendez’s
statement elsewhere in her report that he could sit for a total of six to eight
hours a day and of the treatment records closer in time to the insured period.
       Also contrary to Hernandez’s argument, as a consultative examiner
instead of a treating physician, Dr. Molnar’s opinion is not accorded the
controlling weight given to treating physicians.4 In addition, as the district court
emphasized, the record contains several assessments made by him during
Hernandez’s insured period that note “contradictions between the Claimant’s
efforts and the results of the examinations.” Accordingly, the Commissioner
properly considered the physician opinions of record, incorporated the
limitations he found consistent with the weight of the evidence as a whole, and
made a residual functional capacity finding that is supported by substantial
evidence.
       B. Ability to Perform Other Jobs Cited
       Hernandez also argues that in finding that he is able to perform other
work available in significant numbers in the national economy, the
Commissioner erred by identifying jobs that are beyond his residual functional


       3
         The ALJ was also entitled to discount Dr. Molnar’s and Dr. Arizmendez’s opinions
regarding Hernandez’s physical symptoms upon finding that “[t]here are no objective clinical
or laboratory findings to support [Hernandez’s] allegations of ongoing physical limitations.”
       4
        The Regulations define a “treating” physician as a physician who has provided medical
treatment or evaluation and “who has, or has had, an ongoing treatment relationship with”
the claimant. 20 C.F.R. § 404.1502. Given that Dr. Molnar examined Hernandez only two
times during the insured period (and only one time thereafter), the record does not reflect that
they had an ongoing treatment relationship.

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                                       No. 07-51160

capacity. He first contends that a conflict exists between the vocational expert’s
testimony regarding sedentary bench assembler positions and the classification
of assembly positions as requiring light or medium exertional activities in the
Dictionary of Occupational Titles (“DOT”). Again, however, as noted by the
district court, where a vocational expert’s “unchallenged testimony” indicates
that the claimant can perform the jobs identified, the ALJ is entitled to rely upon
that testimony despite any conflict with the DOT.5 See Carey v. Apfel, 230 F.3d
131, 146–47 (5th Cir. 2000). In any event, the district court is also correct that
Hernandez has failed to introduce evidence that the job of bench assembler
requires lifting over ten pounds or is a skilled position.
       Hernandez further claims that he cannot perform the work of an addresser
or a surveillance monitor as defined in the DOT because he is “illiterate in
English” and such jobs “require fluency in English.”                The record reflects,
however, that the ALJ did not find that Hernandez is illiterate; rather,
substantial evidence supports the ALJ’s finding that Hernandez is “able to read,
write, and understand simple English instructions.” Hernandez completed an
initial disability report himself and indicated that he could speak, understand,
read, and write in English. He also testified at the hearing that he could speak
some English but has trouble understanding English speakers who speak too
quickly, and that he was able to understand English speakers who gave simple
instructions when he performed his previous work. In addition, the record
reflects that the ALJ was aware of Hernandez’s limited English skills, was
careful to inquire into the English proficiency required by each job identified by
the vocational expert, and was satisfied that Hernandez could perform the work
decided upon. Accordingly, substantial evidence supports the Commissioner’s
finding that Hernandez possesses the capacity and the English skills to perform
the jobs of bench assembler, addresser, and surveillance monitor.

       5
        Hernandez did not challenge or cross-examine any of the vocational expert’s testimony
at the hearing.

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      C. Hernandez’s Credibility
      Finally, Hernandez argues that the Commissioner’s finding that he lacked
credibility was not based on the proper legal standard because the ALJ simply
declared him not credible without supporting justification. This court has held
that although an ALJ “is bound . . . to explain his reasons for rejecting a
claimant’s complaints of pain,” he is not required to “follow formalistic rules in
his articulation.” Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994).
      Here, the ALJ expressly recognized that he must consider “all symptoms,
including pain, and the extent to which these symptoms can reasonably be
accepted as consistent with the objective medical evidence and other evidence
based on requirements of 20 C.F.R. § 404.1529 and SSR 96-7p.” In so doing, he
gave Hernandez “the benefit of the doubt as to his subjective allegations of pain”
but gave the “greatest weight” to Dr. Arizmendez’s opinion. As the district court
explained, Dr. Arizmendez’s report acknowledges that Hernandez has significant
impairment but notes inconsistencies between Hernandez’s subjective account
of his symptoms and her diagnostic observations. As a result, the ALJ did in fact
consider Hernandez’s subjective complaints but ultimately determined that they
were inconsistent with Dr. Arizmendez’s evaluations—and with those of the
“[o]ther treating practitioners [who had] released him to heavier levels of
exertion” for that matter.    An ALJ may discount a claimant’s subjective
complaints when the alleged impairments contradict the medical evidence.
Anthony, 954 F.2d at 295; Jones v. Heckler, 702 F.2d 616, 621 n.4 (5th Cir. 1983).
Accordingly, the Commissioner applied the correct legal standard and
substantial evidence supports his finding regarding Hernandez’s credibility.
                                V. Conclusion
      Finding that substantial evidence and relevant legal standards support
the final administrative decision to deny Hernandez’s application for disability
benefits, we AFFIRM.



                                       10
