                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                                                                      April 17, 2006
                           FOR THE FIFTH CIRCUIT
                                                                 Charles R. Fulbruge III
                           ))))))))))))))))))))))))))                    Clerk
                                No. 05-51219
                              Summary Calendar
                           ))))))))))))))))))))))))))

BEVERLY HARPER,

                                                        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-378




Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Beverly Harper challenges the district

court’s order affirming the Commissioner of Social Security’s

(“Commissioner”) decision to deny her claim for Social Security

disability     benefits.      Because   the   Commissioner’s     decision      is

supported by substantial evidence and comports with the relevant

legal standards, we AFFIRM the judgment of the district court.


     *
      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this opinion should not be published and is not precedent except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.
I.   BACKGROUND

     On February 1, 2000, Plaintiff-Appellant applied for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)

payments under the Social Security Act1 (“the Act”).             She claimed

that her heart condition, hypothyroidism, goiter, depression, and

cardiac neurosis rendered her disabled.          The Commissioner denied

Plaintiff-Appellant’s application on March 17, 2000.              On May 1,

2000, the Commissioner denied Plaintiff-Appellant’s request for

reconsideration.

     Plaintiff-Appellant     then   requested     a    hearing   before    an

Administrative Law Judge (“ALJ”).          At the time of the hearing,

Plaintiff-Appellant was forty years old, and had a high school

education, which she      completed by attending special education

classes.      Plaintiff-Appellant testified that while she can both

read and write, she is better at writing.        She also testified that

her last permanent job was as a home health care attendant, and that

she has also worked as a hotel maid.         Plaintiff-Appellant stated

that she stopped working following open heart surgery.                 At the

hearing, she also complained of chest pain, back pain, pain on her

side, crying spells, and problems sleeping. In addition, Plaintiff-

Appellant explained that she fears dying in her sleep and that she

incessantly    worries   about   whether   she   has   locked    her   doors.


     1
      Plaintiff-Appellant’s claims depend on sections 223 and
1614(a)(3)(A) of the Act. Section 223 is codified at 42 U.S.C. §
423. Section 1614(a)(3)(A) is codified at 42 U.S.C. § 1382.

                                    2
Plaintiff-Appellant testified        that she lives with her mother.

Although she primarily spends her days watching television and

sleeping, she also does some cooking and cleaning, and accompanies

her mother to the grocery store.

     Dr. James Armstrong, a board certified general surgeon, also

testified at the hearing.        He explained that Plaintiff-Appellant’s

primary impairment was her heart condition.             However, Dr. Armstrong

testified that Plaintiff-Appellant’s heart condition did not impose

any severe limitations.         He opined that Plaintiff-Appellant could

still   perform   light   work    that       entailed   lifting   twenty   pounds

occasionally and 10 pounds frequently, standing for six hours in an

eight-hour   workday,     and    unlimited       bending   and    stooping.   Dr.

Armstrong also stated that Plaintiff-Appellant’s goiter was not

limiting in any way.        With regard to depression, Dr. Armstrong

testified that the condition was noted only a few times in the

medical record, and when mentioned, there was no elaboration.

     Vocational expert Billy Brown also testified at the hearing.

He asserted that an individual of Plaintiff-Appellant’s age and

education could perform the following jobs: companion domestic

service, nursery school attendant, light office cleaner, and food

preparation worker.       He also stated that all of these jobs (which

range from light and unskilled to light and semiskilled) existed in

significant numbers in the national and local economy.

     At the conclusion of the hearing, Plaintiff-Appellant’s counsel

requested a psychological evaluation with testing to determine

                                         3
Plaintiff-Appellant’s       intelligence        quotient   (“IQ”).       After

questioning Brown, however, the ALJ did not order the evaluation.

Brown testified that all of the jobs that Plaintiff-Appellant could

perform required an IQ above 70.            Additionally, he stated that the

semiskilled    jobs    he   suggested       were   comparable   to   positions

Plaintiff-Appellant held in the past and that none of the unskilled

positions he mentioned required IQs higher than that required by

Plaintiff-Appellant’s previous jobs.

       After hearing testimony and reviewing the medical record

evidence, the ALJ denied Plaintiff-Appellant’s application, finding

that Plaintiff-Appellant was not disabled within the meaning of the

Act.    The ALJ wrote that although Plaintiff-Appellant had severe

impairments due to pace maker placement, atrial defect repair, and

hypothyroidism, these impairments were not significant enough to

equal one of the impairments listed in 20 C.F.R. Part 404,             Subpart

P, Appendix 1.        The ALJ also discredited Plaintiff-Appellant’s

allegations concerning the extent of her limitations.                Finally,

while finding that Plaintiff-Appellant could not perform her past

relevant work, the ALJ held that she could perform a full range of

light work.    Plaintiff-Appellant appealed to the Appeals Council,

which concluded that no basis existed for review of the ALJ’s

decision.

       On June 28, 2004, Plaintiff-Appellant filed a complaint in the

district court, seeking review of the Commissioner’s denial of DIB



                                        4
and SSI payments.2    On July 25, 2005, the magistrate judge entered

judgment in favor of the Commissioner.        This appeal followed.

II.   STANDARD OF REVIEW

      Our review of the Commissioner’s denial of SSI benefits is

restricted to considering whether the decision is supported by

substantial evidence in the record and whether the proper legal

standards were applied.     See Villa v. Sullivan, 895 F.2d 1019, 1022

(5th Cir. 1990).     “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.”

Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).           In applying

this standard, while we must review the entire record to determine

if such evidence is present, “we may neither reweigh the evidence

in the record nor substitute our judgment for the Secretary’s.”

Villa v. Sullivan, 895 F.2d 1019, 1022 (quoting Hollis v. Bowen, 837

F.2d 1378, 1383 (5th Cir. 1988))(citations omitted).

III. DISCUSSION

      The   Commissioner   uses   a   sequential   five-step   inquiry3   to


      2
      The case was referred to a magistrate judge for resolution
upon consent of the parties pursuant to 28 U.S.C. § 636 (c),
Federal Rule of Civil Procedure 73, and Rule 1(i) of Appendix C
of the Local Rules of the United States District Court for the
Western District of Texas.
      3
       The five-step analysis requires the Commissioner to
consider: 1) whether the claimant is presently engaging in
substantial gainful activity, 2) whether the claimant has a
severe impairment, 3) whether the impairment is listed, or
equivalent to an impairment listed in appendix I of the

                                      5
evaluate disability claims under 42 U.S.C. § 423(d)(1)(A).4   Perez

v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).   The ALJ found that

Plaintiff-Appellant was not disabled because her impairments did not

prevent her from performing substantial gainful activity.        On

appeal, Plaintiff-Appellant challenges three aspects of the ALJ’s

decision.   First,   she argues that the ALJ erred by not ordering a

psychological evaluation that was requested based on evidence of

mental impairment.     Next, Plaintiff-Appellant contends that the

ALJ’s finding that she could perform a full range of light work is

not supported by substantial evidence. Finally, Plaintiff-Appellant

asserts that the Commissioner employed incorrect legal standards in

determining her RFC, weighing the evidence supplied by her treating




regulation, 4) whether the impairment prevents the claimant from
doing past relevant work, and 5) whether the impairment prevents
the claimant from performing any other substantial gainful
activity. 20 C.F.R. § 404.1520. Perez v. Barnhart, 415 F.3d 457,
461 (5th Cir. 2005). The claimant bears the burden of proof on
the first four steps of the inquiry. Id. Then, the burden
shifts to the Commissioner on the final step to demonstrate that
the impairment does not prevent the claimant from performing
other work. Id. “Once the Commissioner makes this showing, the
burden shifts back to the claimant to rebut this finding.” Id.
(quoting Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000)).
     4
      “Disability” is defined as the “inability 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. Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000)(quoting 42 U.S.C. §
423(d)(1)(A)).

                                  6
physician, and assessing her own credibility.5              We will consider

each claim in turn.

     A.    The ALJ was       not   required   to    order    a   consultative
           examination.

     Plaintiff-Appellant alleges that because there was sufficient

evidence of mental impairment, the ALJ wrongfully refused to order

a consultative psychological evaluation at the government’s expense.

     “The ALJ owes a duty to a claimant to develop the record fully

and fairly to ensure that his decision is an informed decision based

on sufficient facts.”     Brock v. Chater, 84 F.3d 726, 728 (5th Cir.

1996).     This Court will find that the ALJ’s decision was not

supported by substantial evidence if the claimant demonstrates “(1)

that the ALJ failed to fulfill his duty to adequately develop the

record, and (2) that the claimant was prejudiced thereby.”              Id.   A

consultative   evaluation,    however,   is     only    required     “when   the

claimant   presents   evidence     sufficient      to   raise    a   suspicion

concerning a non-exertional impairment.” Id. The decision to order

a consultative examination is within the ALJ’s bailiwick.             Anderson


     5
      Before moving from the third step to step four of the five-
step inquiry, the Commissioner assesses the claimant’s residual
functional capacity (“RFC”) to determine the most the claimant
can still do notwithstanding his physical and mental limitations.
20 C.F.R. § 404.1520(a). Perez, 415 F.3d at 461-62. The
claimant’s RFC is used at both the fourth and fifth steps of the
sequential analysis. 20 C.F.R. § 404.1520(a)(4). Perez, 415
F.3d at 462. At step four, the claimant’s RFC is utilized to
determine if the claimant can still do his past relevant work.
20 C.F.R. § 404.1520(a)(4)(iv). At the fifth step, the
claimant’s RFC is used to determine whether the claimant can
adjust to other types of work. 20 C.F.R. § 404.1520(a)(4)(v).

                                     7
v. Sullivan, 887 F.2d 630, 634 (5th Cir. 1989).           Isolated comments

are insufficient, without further support, to raise a suspicion of

non-exertional impairment.          Brock, 84 F.3d at 728.

      The evidence demonstrates that Plaintiff-Appellant’s alleged

intellectual limitations had not precluded her from engaging in

substantial gainful activity in the past.             As the district court

noted, notwithstanding her allegedly low intellectual capacity,

Plaintiff-Appellant      previously     worked   as   a   home   health       care

attendant,    an   occupation   requiring      both   reading    and    writing.

Therefore, assuming arguendo that the ALJ failed to fulfill his duty

to   adequately    develop    the    record,   Plaintiff-Appellant        cannot

demonstrate that she was prejudiced by the error.

      With regard to cardiac neurosis, Plaintiff-Appellant did not

list that condition in her original application for benefits and

never sought treatment for it.              The only reference to cardiac

neurosis in the record is in the medical expert’s description of its

symptoms upon being questioned by Plaintiff-Appellant’s attorney.

Therefore, we find that Plaintiff-Appellant’s allegations of cardiac

neurosis are the kind of isolated comments that are insufficient to

raise   a    suspicion   of   non-exertional      impairment.          See,    id.

Consequently, the ALJ was not required to order a consultative

examination in order to fulfill his duty to adequately develop the




                                        8
record.6

     B.    The ALJ’s assessment of Plaintiff-Appellant’s RFC is
           supported by substantial evidence and comports with the
           relevant legal standards.

     Next, Plaintiff-Appellant contends that the ALJ’s finding that

she could perform a full range of light work is not supported by

substantial evidence. Specifically, Plaintiff-Appellant argues that

the ALJ: (1) failed to address the fact that she obtained a high

school education through special education courses; (2) wrongfully

rejected evidence suggesting that she was not able to work for a




     6
      We will not address Plaintiff-Appellant’s argument that
the ALJ erred by discrediting her testimony concerning the extent
of her limitations because it is raised for the first time on
appeal. See Greenberg v. Crossroads Sys., Inc., 364 F.3d 657,
669 (5th Cir. 2004)(“Arguments not raised in the district court
cannot be asserted for the first time on appeal.”).
     We also note that the district court acknowledged that
Plaintiff-Appellant did not take exception to the ALJ’s findings
regarding depression. However, out of an abundance of caution,
we will briefly address this argument because the district court
discussed the ALJ’s findings regarding Plaintiff-Appellant’s
depression. The ALJ considered Plaintiff-Appellant’s depression
but declined to give much weight to the condition because there
was no longitudinal history of depression and Plaintiff-
Appellant’s physicians never referred her to a specialist.
Hence, the ALJ reasoned that Plaintiff-Appellant’s medical
sources did not think that the problem was significant.
Moreover, the ALJ noted that depression was only mentioned three
times in the medical record. Given the ALJ’s express
consideration of the Plaintiff-Appellant’s depression, the tenet
that the determination of whether or not to order a consultative
examination is within the ALJ’s discretion, and the fact that
depression was sparsely mentioned, we conclude that the ALJ was
not required to order a consultative examination. Furthermore,
there is no indication that Plaintiff-Appellant’s depression
inhibited substantial gainful activity.

                                 9
year; and (3) failed to properly evaluate her mental limitations.7

We find that the ALJ’s assessment of Plaintiff-Appellant’s RFC is

supported by substantial evidence.

     First, Plaintiff-Appellant argues that the ALJ failed to

address the limitations arising from her special education. Despite

her educational limitations, Plaintiff-Appellant worked as a home

health   care   attendant    and   a   hotel      maid   before   the    onset   of

disability.      Plaintiff-Appellant        has    not   provided   any    impact

evidence; that is, she has not shown how her ‘less-than-high-school’

education affects her ability to perform the jobs suggested by the

vocational expert, or how these jobs require more intellectual

ability than did her past relevant work as a home health care

attendant and a hotel maid.        See Perez v. Barnhart, 415 F.3d at 464

(requiring appellant to demonstrate how his less-than-high-school

education affected his ability to perform the jobs suggested by the

vocational    expert,   or   how   those    suggested     jobs    required   more

intellectual ability than did his past relevant work).

     Next, Plaintiff-Appellant suggests that                the ALJ erred by

disregarding a January 2000, fill-in-the-blank note stating that she

was disabled and unable to return to work for one year.                 An ALJ may

ignore or give reduced weight to a physician’s opinions that are

brief and conclusory, not supported by medically acceptable clinical

     7
      In light of the discussion above regarding cardiac
neurosis and depression, we will not address Plaintiff-
Appellant’s claim regarding the ALJ’s failure to properly
evaluate those two mental limitations in determining her RFC.

                                       10
laboratory diagnostic techniques, or otherwise unsupported by the

evidence.   See id. at 466.

      Considering the ALJ’s dependence on Dr. Armstrong’s testimony

that Plaintiff-Appellant’s heart condition did not impose any severe

limitations and the vocational expert’s testimony regarding the jobs

available   to   an   individual   of    Plaintiff-Appellant’s   age   and

education, the ALJ’s assessment of Plaintiff-Appellant’s RFC is

supported by substantial evidence.

IV.   CONCLUSION

      Because we conclude that the Commissioner’s decision denying

Plaintiff-Appellant benefits is supported by substantial evidence

and comports with the relevant legal standards, we AFFIRM the

district court’s decision.




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