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

                                                                            FILED
                                                                           May 16, 2008
                                     No. 07-11301
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk


CYNTHIA JEAN NUGENT,

                                                  Plaintiff-Appellant,

v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                                                  Defendant-Appellee.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 2:04-CV-256


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       The Commissioner of Social Security (“Commissioner”) denied Cynthia
Jean Nugent disability insurance and supplemental income benefits under Titles
II and XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 416(i), 423, 1382c,
and Nugent challenged the denial in district court. The court affirmed the
Commissioner’s decision, a decision that Nugent 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-11301

                     I. Factual and Procedural History
      Nugent applied for disability insurance and supplemental income benefits
in September 2002, alleging a disability onset date of October 1, 2000, due to
lower back pain. After the Commissioner denied Nugent’s claims initially and
on reconsideration, an administrative law judge (“ALJ”) held a hearing on
December 16, 2003, pursuant to Nugent’s request. Nugent appeared at the
hearing and testified with the assistance of her attorney. A vocational expert
was also present throughout the hearing and testified as an expert witness.
      On April 8, 2004, the ALJ rendered an unfavorable decision, finding that
Nugent is not disabled under 20 C.F.R. § 404.1520(g) and is not entitled to the
requested benefits. In so doing, the ALJ found that although Nugent suffers
from “severe” lower back pain, the impairment is not severe enough to meet or
medically equal, either singly or in combination, one of the impairments listed
in Appendix 1, Subpart P, Regulation No. 4. In addition, after evaluating
Nugent’s testimony and the medical evidence, the ALJ found that her subjective
complaints lack credibility and that she retains the residual functional capacity
(“RFC”) to “perform light work that allows for a sit/stand option, requires no
excessive standing or walking and requires only simple one or two step tasks.”
Finally, based on this RFC and on the vocational expert’s testimony, the ALJ
found that although Nugent cannot return to the work she performed in the
past, she can perform other work that exists in significant numbers in the
national economy.
      After the Appeals Council denied Nugent’s request for review on October
4, 2004, she filed her complaint with the district court seeking review of the final
administrative 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 November 15, 2007. Nugent appeals.




                                         2
                                        No. 07-11301

                               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)
(citation omitted). 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 she 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

                                              3
                                        No. 07-11301

Nugent 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 Nugent 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 Nugent to prove that she could
not perform the alternative work identified. Id. at 1302. Throughout the process,
however, the ultimate burden of establishing disability remained with Nugent.
Hames v. Heckler, 707 F.2d 162, 165 (5th Cir. 1983).
                                    IV. Discussion
      Nugent appears to allege three points of error in the district court’s
determination that substantial evidence supports the final administrative
decision that she is not disabled within the meaning of the Social Security Act:
first, the Commissioner failed to properly evaluate the physician opinions of
record; second, the Commissioner’s finding that Nugent retains the RFC to
perform other work existing in significant numbers in the national economy lacks
substantial evidence; and third, the Commissioner failed to properly assess her
credibility.2
      A. Physician Opinions of Record
      Nugent first argues that the Commissioner erred in giving little weight to
the opinion of her treating physician, Dr. Basil Younis. 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


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).
       2
        In her brief, Nugent asserts generally that the “sole issue” before this court is
“[w]hether . . . the unfavorable decision of the Administrative Law Judge . . . is supported by
substantial evidence” without clearly identifying the specific findings she challenges. Because
she essentially attacks the district court’s rulings on each of the three issues raised below,
however, we address these three issues on appeal.

                                              4
                                   No. 07-11301

accorded considerable weight in determining disability,” such evidence is not
conclusive; rather, the ALJ bears “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, the ALJ was entitled to discount Dr. Younis’s conclusory October
2002 statement that Nugent cannot work because it contradicts his earlier
treatment notes, the objective medical findings, and the other examining
physicians’ opinions. Dr. Younis observed in his December 2001 notes that
Nugent was “doing well” with her steroid injections, and the record reflects that
he never restricted her walking, standing, sitting, lifting, or working activities.
Further support that Nugent’s condition was improved appears in Dr. B.J.
Daneshfar’s January 2002 statement that “Pt. [patient] states last injections
provided much relief for her,” and also in Dr. Kent Gray’s December 2000 finding,
on chiropractic examination, that the digital and motion palpation of Nugent’s
lumbar spine “is 70% improved.” Finally, when Dr. Grace Stringfellow examined


                                        5
                                   No. 07-11301

Nugent at the request of the Texas Rehabilitation Commission in December
2002—just two months after Dr. Younis’s “disabled” assessment in connection
with Nugent’s food stamp application—she opined that Nugent is capable of
“light to medium work responsibilities avoiding repetitive bending and lifting
greater than 20-30 pounds.” See Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir.
1987) (concluding that an ALJ may rely on a well-supported consultative
examiner’s opinion over a poorly supported treating physician’s opinion).
Accordingly, substantial evidence indicates that the Commissioner properly
evaluated the physician opinions of record.
      B. RFC Determination
      Nugent’s argument that the Commissioner erred in finding that she retains
the RFC for a modified range of light work is similarly unavailing. First, as
noted above, Dr. Stringfellow determined that Nugent is capable of “light to
medium work responsibilities avoiding repetitive bending and lifting greater than
20-30 pounds.” Second, in his January 2003 RFC evaluation, Dr. M. Dolan
determined that Nugent can occasionally lift and/or carry (including upward
pulling) twenty pounds; can frequently lift and/or carry (including upward
pulling) ten pounds; can stand and/or walk (with normal breaks) for a total of
about six hours in an eight-hour workday; can sit (with normal breaks) for a total
of about six hours in an eight-hour workday; can push and/or pull (including
operation of hand and/or foot controls) to an unlimited degree other than as
shown for lifting and/or carrying; has postural limitations in that she can only
occasionally climb, balance, stoop, kneel, crouch, and crawl; and has no
manipulative, visual, communicative, or environmental limitations. In so doing,
Dr. Dolan specifically noted that he considered treating or examining source
statements regarding Nugent’s physical capacities and that none of the source
conclusions about her limitations or restrictions differed significantly from his
own. Accordingly, given that the ALJ was entitled to discount Dr. Younis’s
unsupported, inconsistent “disabled” finding of October 2002, substantial

                                        6
                                      No. 07-11301

evidence supports the Commissioner’s RFC finding.
      C. Nugent’s Credibility
      Finally, Nugent contends that the Commissioner’s finding that her
subjective complaints lacked credibility does not constitute substantial evidence
that she is not disabled. The mere existence of pain is not an automatic ground
for obtaining disability benefits. See Cook v. Heckler, 750 F.2d 391, 395 (5th Cir.
1985). Rather, “pain, in and of itself, can be a disabling condition . . . only when
it is ‘constant, unremitting, and wholly unresponsive to therapeutic treatment.’”
Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988) (quoting Hames v. Heckler,
707 F.2d 162, 166 (5th Cir. 1983)). Moreover, “[t]he evaluation of a claimant’s
subjective symptoms is a task particularly within the province of the ALJ, who
has had an opportunity to observe whether the person seems to be disabled.”
Loya v. Heckler, 707 F.2d 211, 215 (5th Cir. 1983) (citation omitted). As such,
“[t]hese determinations are entitled considerable deference.” Jones v. Bowen, 829
F.2d 524, 527 (5th Cir. 1987) (citation omitted). “[W]here the uncontroverted
medical evidence shows a basis for the claimant’s complaints,” however, an ALJ’s
unfavorable credibility finding will not be affirmed “unless the ALJ weighs the
objective medical evidence and assigns articulated reasons for discrediting the
claimant’s subjective complaints of pain.” Abshire v. Bowen, 848 F.2d 638, 642
(5th Cir. 1988) (citation omitted).
      Here, as the district court explained, the ALJ not only found Nugent’s
statements regarding her limitations to lack credibility but also cited the
objective medical evidence he considered in discrediting her subjective complaints
of pain. Specifically, he noted, “while the claimant alleges severe disabling back
pain, objective findings on physical examination and x-ray and MRI studies have
been minimal,” and then went on to discuss the results of those studies in detail
in the next paragraph. In addition, as discussed above, the objective medical
evidence from Nugent’s treating and examining physicians comports with this
determination. Accordingly, the Commissioner was entitled to discredit Nugent’s

                                           7
                                   No. 07-11301

testimony, and substantial evidence supports his conclusion that she is not
disabled within the meaning of the Act.
                                 V. Conclusion
      Finding that substantial evidence and relevant legal standards support the
final administrative decision to deny Nugent’s application for disability insurance
and supplemental income benefits, we AFFIRM.




                                        8
