                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                         F I L E D
                        IN THE UNITED STATES COURT OF APPEALS
                                                                                          March 20, 2006
                                 FOR THE FIFTH CIRCUIT
                                                                                     Charles R. Fulbruge III
                                                                                             Clerk
                                           No. 05-50990
                                         Summary Calendar


DAVID HILLMAN,

                       Plaintiff - Appellant,

                       v.

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. 6:04-CV-174


Before JOLLY, DAVIS, and OWEN, Circuit Judges.

PER CURIAM:*

       David Hillman applied for disability insurance benefits under Title II of the Social Security

Act, alleging an inability to work due to persistent back pain and recurrent hernias resulting from an

injury in August 1980. The claim was denied initially, upon reconsideration, and after a hearing, at

which an Administrative Law Judge (ALJ) determined that Hillman was not disabled prior to the

expiration of his insured status.1 Hillman appealed this determination to the Appeals Council, who


       *
        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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
       1
         See 42 U.S.C. § 423(a), (c) (disability benefits are only available if the claimant is disabled
prior to expiration of his insured status); Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir. 1992).
denied his request for review, making the ALJ’s decision the final decision of the Commissioner of

the Social Security Administration (the Commissioner). Hillman then filed a complaint in federal

district court, seeking review of the final agency decision pursuant to 42 U.S.C. § 405(g), and the

federal district court affirmed. Hillman appeals, claiming (1) the ALJ’s finding of no disability during

the relevant period is not supported by substantial evidence, (2) the ALJ improperly rejected the

testimony of Hillman’s treating physician, (3) the ALJ improperly evaluated Hillman’s allegations of

disabling pain, and (4) the ALJ erred in his assessment of Hillman’s residual functional capacity.

        Our review of the Commissioner’s decision to deny benefits is limited to two inquiries:

whether the decision is supported by substantial evidence and whether the Commissioner applied the

proper legal standards.2 Substantial evidence “means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion”3 and is “more than a mere scintilla and less than

a preponderance.”4 If supported by substantial evidence, the Commissioner’s factual findings are

conclusive.5 “The court does not reweigh the evidence in the record, try the issues de novo, or

substitute its judgment for the Commissioner’s, even if the evidence weighs against the

Commissioner’s decision.”6 The Commissioner, rather than the court, is charged with resolving any

conflicts in the evidence.7


        2
         See, e.g., Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
        3
         Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotations and citations omitted).
        4
         Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993).
        5
         42 U.S.C. § 405(g).
        6
         Newton, 209 F.3d at 452.
        7
         Id.

                                                   2
       To qualify for disability insurance benefits, Hillman must prove that he became disabled within

the meaning of 42 U.S.C. § 423 between July 26, 1985, the starting date for his claim,8 and December

31, 1985, the date his disability insured status expired.9 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 . . . last for a continuous period of not less than 12 months.”10

To decide whether a claimant is disabled under this definition, the Commissioner uses a five-step

sequential evaluation and considers whether: (1) the claimant is performing substantial gainful

activity; (2) the claimant has a “severe impairment”; (3) the claimant’s impairment meets or equals

one listed in Appendix 1 of the regulations; (4) the claimant has the residual functional capacity to

perform his past relevant work; and (5) the claimant can make an adjustment to other work in light

of his age, education, work experience, and residual functional capacity.11 The claimant bears the

burden of proof on the first four steps, and the burden then shifts to the Commissioner to show that

the claimant is capable of performing other work in the national economy. 12 The ALJ found that

Hillman was not disabled during the relevant period (from July 26, 1985 to December 31, 1985)

because he could perform his past relevant work as a payroll or inventory clerk (step 4) and



       8
         Hillman’s first application for benefits based on his August 1980 injury was denied on July
25, 1985, and the ALJ decided not to reopen that prior claim, applying the doctrine of res judicata
for the period from August 15, 1980 to July 25, 1985. See Carter v. Heckler, 712 F.2d 137, 142 (5th
Cir. 1983) (An ALJ’s “refusal to reopen or a res judicata determination is not reviewable.”).
       9
        42 U.S.C. § 423(a), (c); Anthony, 954 F.2d at 295.
       10
            42 U.S.C. § 423(d)(1)(A).
       11
            20 C.F.R. § 404.1520.
       12
            Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).

                                                  3
alternatively could perform a limited range of unskilled, light work, such as an information services

clerk, a silverware wrapper, or a bakery/conveyor line worker (step 5).

        Hillman challenges the ALJ’s decision for a lack of substantial evidence. First, Hillman argues

that the ALJ’s conclusion, at step 4, that Hillman could perform his past relevant work as a payroll

or inventory clerk was not supported by substantial evidence because Hillman did not hold these

positions until well after his insured status expired. We decline to reach the merits of this argument

because the ALJ’s error, if any, did not affect his ultimate conclusion and was thus harmless in light

of the ALJ’s alternative finding of no disability at step 5.13 Hillman further takes issue with the ALJ’s

determination that Hillman had the residual functional capacity, meaning the most he could do despite

his limitations,14 to occasionally lift twenty pounds and thus to perform light work.15 We conclude

that the ALJ’s determination was supported by substantial evidence. Although the record shows that

Hillman was given a ten-pound weight restriction following hernia surgeries in 1981, a medical expert

testified that recovery from a hernia surgery would take, at most, three months and concluded that,

based on all the medical evidence, Hillman could have occasionally lifted twenty pounds during the

relevant period, four years after the weight restriction was given. Finally, Hillman argues that the

evidence fails to show that he could have not only obtained, but also maintained, employment during

the time period at issue, given his disabling pain and frequent hospital visits and surgeries. There is

more than a scintilla of evidence to support the ALJ’s conclusion. Significantly, Hillman had no


        13
          See, e.g., Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (refusing to reach the merits
of a claim because the ALJ’s error, if any, was harmless).
        14
             20 C.F.R. § 404.1545(a).
        15
        See 20 C.F.R. § 404.1567(b) (defining light work to require the ability to lift no more than
20 pounds, with frequent lifting of 10 pounds).

                                                   4
surgeries from September 1984 to May 1991, and there is no record of any hospital visits during this

period. Moreover, the objective medical evidence does not support Hillman’s allegations of disabling

pain during the relevant time.

        Hillman next argues that the ALJ applied an improper legal standard by rejecting the

testimony of Hillman’s treating physician, Dr. Hughes, without performing the detailed analysis

required by the regulations. Although “the opinion and diagnosis of a treating physician should

[generally] be afforded considerable weight in determining disability,” the ALJ may give the opinion

little or no weight when good cause is shown, for instance where the opinion is conclusory or

unsupported by the objective medical evidence.16 When the ALJ determines that the opinion is not

entitled to controlling weight,17 the regulations require the ALJ to consider several factors in deciding

how much weight to give the opinion, such as the length of treatment, the consistency of the opinion

with the record as a whole, and the specialization of the treating physician.18 Here, the ALJ chose

to credit Dr. Bishara’s (the non-examining physician) testimony over that of Dr. Hughes, after

concluding that Dr. Bishara’s opinion was supported by the record as a whole, whereas Dr. Hughes’s

opinion, by his own concession, was not supported by objective medical evidence. Moreover, Dr.

Hughes did not begin treating Hillman until nearly 14 years after the relevant period. We hold that,

in these circumstances, the ALJ did not err in his decision to give the non-examining physician’s



        16
             Newton, 209 F.3d at 455–56.
        17
         See id. at 455 (“A treating physician’s opinion on the nature and severity of a patient’s
impairment will be given controlling weight if it is well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with other substantial evidence.”) (internal
quotations and citations omitted); 20 C.F.R. § 404.1527(d)(2).
        18
             20 C.F.R. § 404.1527(d).

                                                   5
testimony controlling weight and that remand to conduct a more detailed analysis is unnecessary.

        Hillman also argues that the ALJ failed to follow the requirements in 20 C.F.R. § 404.1529

for evaluating Hillman’s allegations of disabling back pain and the resulting limitations on his ability

to work. Under the regulations, the ALJ must first determine whether there is a medically

determinable physical or mental impairment that could reasonably be expected to produce the

claimant’s pain.19 If the ALJ finds such an impairment, he then has to consider a variety of factors,

including the claimant’s daily activities and treatment for pain, to determine the extent to which the

pain limits the claimant’s ability to do basic work activities.20 “It is within the ALJ’s discretion to

determine the disabling nature of a claimant’s pain, and the ALJ’s determination is entitled to

considerable deference.”21 “Subjective complaints of pain must also be corroborated by objective

medical evidence.”22 Here, the ALJ evaluated Hillman’s testimony in light of all the objective medical

evidence and concluded that the evidence did not support Hillman’s allegation of disabling back pain,

but rather supported Dr. Bishara’s testimony that, despite his pain, Hillman could perform a limited

range of light work during the relevant time. Even though the ALJ did not explicitly discuss every

factor set forth in the regulations, a review of the hearing transcript reveals that the ALJ elicited the

pertinent information from Hillman. Moreover, remand would be fruitless in light of the lack of

objective medical evidence in the record to support Hillman’s allegations of disabling back pain during

the latter half of 1985.


        19
             20 C.F.R. § 404.1529; Social Security Ruling 96-7p.
        20
             Id.
        21
             Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001).
        22
             Id.

                                                   6
        Finally, Hillman asserts that the ALJ failed to properly evaluate his residual functional

capacity. The regulations require the ALJ to determine residual functional capacity by considering

all of the relevant evidence and addressing the claimant’s exertional and non-exertional limitations.23

Here, after reviewing the relevant evidence, the ALJ concluded that the objective medical evidence

supported Dr. Bishara’s, rather than Hillman’s, testimony regarding the extent of Hillman’s

limitations.24 The ALJ then concluded that Hillman could stand and walk for four hours out of an

eight hour day, lift and carry twenty pounds occasionally and ten pounds frequently, and sit without

limitations (his exertional limitations)25 and that he could occasionally stoop, crouch, kneel and crawl,

but could not climb, balance, or work at unprotected heights or around dangerous machinery (his

non-exertional limitations).26 The ALJ then found that, based on his limitations, Hillman had the

residual functional capacity to perform a limited range of light work. Because the ALJ considered

all the relevant evidence and made the requisite findings, we find no error in his assessment.

        AFFIRMED.




        23
             See 20 C.F.R. § 404.1545; Social Security Ruling 96-8p.
        24
          See Social Security Ruling 96-8p; see also Newton, 209 F.3d at 452 (noting that conflicts
in the record are for the Commissioner to resolve).
        25
             See Social Security Ruling 83-10.
        26
             Id.

                                                   7
