                   United States Court of Appeals,

                            Fifth Circuit.

                               No. 93-3621

                          Summary Calendar.

                   Ethel PAUL, Plaintiff-Appellant,

                                      v.

    Donna E. SHALALA, Secretary of Health and Human Services,
Defendant-Appellee.

                            Aug. 18, 1994.

Appeal from the United States District Court for the Eastern
District of Louisiana.

Before GARWOOD, SMITH and DeMOSS, Circuit Judges.

     JERRY E. SMITH, Circuit Judge:

     Ethel Paul was denied disability and Supplemental Security

Income ("SSI") benefits by the Secretary, Department of Health and

Human Services.      Concluding that the district court correctly

awarded summary judgment in favor of the Secretary, we affirm.

                                      I.

     Paul applied for disability and SSI benefits on January 6,

1990, alleging disability because of back injury, diabetes, and

hypertension.   The Secretary denied her application initially and

then again upon reconsideration.

     At   Paul's    request,    the        claim   was   heard   before   an

administrative law judge ("ALJ") on December 21, 1990.               Paul's

personal physician, Michael Hunter, attested to Paul's physical

disabilities.   In response, the Secretary presented a vocational

expert, who opined that Paul had sufficient residual functional


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capacity to perform certain work, and Donald Faust, an orthopedic

surgeon, who examined Paul and testified that her disabilities were

less pronounced than had been alleged.           The ALJ concluded that

Paul's disabilities were insufficient to meet the SSA requirements

and thus denied her relief.

     The    Appeals   Council    rejected   Paul's    request   for   review.

Pursuant to 42 U.S.C. § 405(g), Paul appealed to the district

court, which adopted the magistrate judge's recommendation and

dismissed Paul's complaint.

                                     II.

     Paul raises two issues on appeal.          First, she contends that

the ALJ failed to comply with 20 C.F.R. § 404.1512(e)(1), which she

reads to require that a claimant's treating physician be given an

opportunity to supplement his initial report with more detailed

information, should the ALJ find the information to be inadequate.

Paul alleges, and the Secretary acknowledges, that despite the

ALJ's      finding    that      Hunter's    medical     conclusions      were

unsubstantiated by supporting clinical data, Hunter was never

solicited by the ALJ to present additional information.               Rather,

the ALJ merely substituted Faust's medical opinions for Hunter's.

Paul also asserts, as error, the ALJ's decision to give more weight

to Faust's testimony, alleging that the opinion of Hunter, as

treating physician, should be accorded more deference.

                                     III.

        Our review of the Secretary's final decision is limited to

two inquiries: (1) whether substantial evidence of record supports


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the Secretary's decision;           and (2) whether the decision comports

with relevant legal standards.           Muse v. Sullivan, 925 F.2d 785, 789

(5th Cir.1991) (per curiam);            Villa v. Sullivan, 895 F.2d 1019,

1021    (5th    Cir.1990).       "Substantial     evidence      is   more    than   a

scintilla and less than a preponderance.                    It is such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion."      Muse, 925 F.2d at 789.        If supported by substantial

evidence, the decision of the Secretary is conclusive and must be

affirmed.      Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420,

1422, 28 L.Ed.2d 842 (1971).

                                        IV.

                                         A.

        This court has jurisdiction to review the Secretary's final

decision only where a claimant has exhausted her administrative

remedies.       Muse, 925 F.2d at 791;          Dominick v. Bowen, 861 F.2d

1330,    1332     (5th   Cir.1988).      Paul's       failure   to   raise    her   §

404.1512(e)(1) claim in the Appeals Council, see 20 C.F.R. §

404.900(b), deprives us of jurisdiction to review the claim.                        As

such,    we    dismiss    Paul's    first     issue    on   appeal   for    want    of

jurisdiction.

       Paul's arguments to the contrary are inapposite.                First, the

new claim that the ALJ failed to comply with § 404.1512(e)(1) is

not an expansion of the general rationale proffered in support of

the     appeal.          Prior     to   raising       the   treating       physician

supplementation argument in the district court, Paul centered her

appeal to the Appeals Council on the allegedly disproportionate


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weight ascribed to the consulting physician's opinion and on the

alleged misapplication of Social Security Ruling 88-13. These foci

are distinct from Paul's additional contention that Hunter should

have been contacted to supplement his original testimony.

     The two "assignment[s] of errors" that Paul presented to the

Appeals Council were "[w]hether the [ALJ] erred in discounting the

findings and opinions of the treating physicians" and "[w]hether

the [ALJ] erred in failing to properly apply Social Security Rule

88-13."    The closest Paul comes to a § 404.1512(e)(1) issue in her

Appeals Council brief is the statement that "[f]or the [ALJ] to

assume that Dr. Hunter did not have the totality of the records in

his possession is an unsubstantiated assumption."         This assertion

falls well short of an argument that § 404.1512(e)(1) (which Paul

did not cite) requires that the doctor be recontacted.

     Second, the caselaw supports our decision to dismiss for want

of jurisdiction.    We disagree with Paul that the situation in this

case is markedly different from those in Dominick and Muse.              The

plaintiff in Dominick asserted, for the first time on appeal to the

circuit court, an error in the determination of her insured status,

id. at 1332, while the Muse plaintiff similarly failed to challenge

the alleged bias of the ALJ in front of the Appeals Council.             Id.

at 791.     Paul, similarly, did not raise the treating physician

claim at the Appeals Council;        the issue surfaced for the first

time in the district court.

     Furthermore, while equitable grounds may support this court's

decision   to   consider   issues   not   previously   presented,   In    re


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Corrugated Container Antitrust Litig., 647 F.2d 460, 461 (5th Cir.

Unit   A   May    1981)   (per   curiam)     ("This   rule,   however,   is     not

inflexible and it gives way when necessary to prevent a miscarriage

of justice."), we refuse to do so here.                 Paul's reliance upon

Thorton v. Schweiker, 663 F.2d 1312 (5th Cir. Dec. 1981), in which

we considered evidence that had not been presented at previous SSA

hearings, is unfounded.          In Thorton the plaintiff had requested

assistance from the SSA in obtaining certain medical records that

she wished to present at her hearing.                  Despite having given

repeated assurances that the records would be obtained, the SSA

never did so, and the records never appeared in evidence before the

ALJ.    In light of the plaintiff's reasonable reliance upon SSA's

representations and in order to prevent a miscarriage of justice,

we remanded for further review.             Id. at 1316.

       In contrast, Paul's failure to raise her claim during the

administrative process was her own doing;              she neither requested

help nor relied upon the Secretary's representations of such help.

Therefore, in light of Paul's failure to exhaust her administrative

remedies,    we    dismiss   the   §   404.1512(e)(1)      claim   for   want    of

jurisdiction.

                                        B.

       We also reject Paul's second issue on appeal.               "Although we

review the entire record, we may not re-weigh the evidence or

substitute our judgment for the Secretary's." Hollis v. Bowen, 837

F.2d 1378, 1383 (5th Cir.1988) (per curiam). Typically the opinion

of the treating physician is entitled to great weight.              The ALJ may


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diminish its weight relative to other experts, however, where the

treating    physician's     evidence       is   unsupported   by    medically

acceptable clinical, laboratory, or diagnostic techniques, or where

otherwise unsupported by the evidence.           Scott v. Heckler, 770 F.2d

482, 485 (5th Cir.1985).     The opinion of a specialist generally is

accorded greater weight than that of a non-specialist.              Dorsey v.

Heckler, 702 F.2d 597, 603 (5th Cir.1983).

      We are unable to say that the ALJ erred in deciding as to the

credibility of competing witnesses. The ALJ supported his decision

to rely more heavily upon Faust's testimony in part because of

inconsistencies in Hunter's testimony, insufficient laboratory work

submitted    in   support    of   Hunter's       testimony,   and     Faust's

qualifications as an orthopedic expert.             Faust expressly stated

that Paul's injuries were less severe than alleged and that she was

capable of performing specific employment functions.                The ALJ's

decision reflects careful consideration of the evidence presented,

and we may not substitute our judgment for the Secretary's.                We

therefore conclude that, under the appropriate standard of review,

substantial evidence supports the ALJ's decision to weigh Faust's

testimony more heavily and to find that Paul was capable of

performing certain work.

                                   V.

     For the foregoing reasons, we reject Paul's arguments on

appeal and AFFIRM the judgment of the district court.




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