                       UNITED STATES COURT OF APPEALS
                                FIFTH CIRCUIT

                                   _________________

                                       No. 01-30714

                                   (Summary Calendar)
                                   _________________


              EVELYN FRANK,


                                          Plaintiff-Appellant,

              versus


              JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL
              SECURITY,


                                          Defendant-Appellee.



                       Appeal from the United States District Court
                          For the Eastern District of Louisiana
                               USDC No. 99-CV-3038-N

                                       April 1, 2002


Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*


       *
              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not be published and is not precedent except under the limited circumstances set forth in 5TH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.
        Evelyn Frank appeals the district court’s summary judgment against her in a lawsuit

challenging the Commissioner of Social Security’s decision to deny her disability benefits. See 42

U.S.C. § 405(g) (permitting applicants for disability benefits to bring a civil action challenging adverse

administrative decisions). Frank claims that the administrative law judge (ALJ) who decided her

application erred in three respects: (1) he failed to give proper weight to the opinion of her treating

physician, (2) he failed to consider whether Frank could maintain employment for more than short

periods of time, and (3) he relied on improper considerations in determining Frank’s credibility.

                                                    I

        Frank contends that, in evaluating the opinion of her treating physician Dr. Zeringue, the ALJ

did not consider each of the six factors set out for evaluating such evidence as required by 20 C.F.R.

§ 404.1527(d). See Newton v. Apfel, 209 F.3d 448, 456 - 58 (5th Cir. 2000) (requiring, in the

absence of competing first-hand medical evidence, that the ALJ consider each of the § 404.1527(d)

factors in evaluating the medical opinion of a treating physician). The controversy seems to focus

on a note that Dr. Zeringue wrote by hand to the Social Security Administration. The entire text of

the note reads:

        Pt. is under my medical care and has been since February 3, ‘94. She is unable to work
        because of cervical & lumbar strain/sprain & poss. intervertebral disc injury. Left hand and
        left knee abrasion/contusion. It is unknown when the pt. will be able to return.

Frank argues that this opinion should have been evaluating using each of the factors set out in §

404.1527(d) before being given “little weight” by the ALJ.

        Assuming arguendo that the ALJ did not consider the six factors, he was not required to do

so with respect to the doctor’s conclusion that Frank was unable to work. The ALJ must consider

the six factors in subsection (d) only with respect to the medical opinions of treating physicians.


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Subsection (d) is entitled “How we weigh medical opinions” and explicitly applies only to “medical

opinions.” Subsection (e) of the regulation expressly explains that some opinions by physicians are

not medical opinions, and as such have no “special significance” in the ALJ’s determination. 20

C.F.R. § 404.1527(e) & (e)(3). Among the opinions by treating doctors that have no special

significance are determinations that an applicant is “disabled” or “unable to work.” 20 C.F.R. §

404.1527(e)(1). These determinations are legal conclusions that the regulation describes as “reserved

to the Commissioner.” The factors set out at subsection (d) apply only to medical opinions, not

opinions “reserved to the Commissioner.” Assuming arguendo that the ALJ did not consider the six

factors in subsection (d), he was not required to do so with respect to Dr. Zeringue’s opinion that

Frank could not work. The doctor’s opinion was not a medical opinion within the meaning of the

regulation.

       With respect to Dr. Zeringue’s medical opinion, the ALJ did not reach any conclusions that

conflicted with the doctor’s evaluation. The ALJ specifically found that Frank suffered from, among

other impairments, “degenerative disc disease at L5; a history of strains and sprains of the cervical

and lumbar regions, and [o f the] left hand and knee . . . .” The ALJ’s findings of fact on Frank’s

medical condition therefore do not conflict with Dr. Zerengue’s evaluation that Frank suffered from

lumbar and cervical strain and left hand and knee abrasions.

                                                  II

       Frank contends that the ALJ erred in considering only whether she could obtain her past

relevant work, not whether she could maintain such work on a sustained basis. She cites Singletary

v. Bowen, 798 F.2d 818 (5th Cir. 1986), in which we held that a person qualifies as disabled under

the act if he cannot sustain a job for a significant period of time, even if he is sometimes capable of


                                                 -3-
working for short spurts. A person is disabled within the meaning of the Social Security Act if he is

unable to do “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.” 20 C.F.R. § 404.1527. In Singletary,

the applicant suffered from a severe mental impairment. Although he could sometimes work for short

periods of time, he could never hold a job for long periods. We held that working in short spurts only

did not constitute “substantial gainful activity” and that the applicant therefore might qualify as

“disabled.”

        Here, nothing in the record suggests that Frank can work only in short spurts. Even Frank

herself does not contend that her situation resembles Singletary’s: she does not allege that she can

work for short spans of time, but cannot hold a job. Instead, she just seems to contend that she

cannot work at all. We therefore do not see how the ALJ committed any error under Singletary.

        We suppose that Frank’s Singletary argument is that the ALJ applied the wrong legal

standard. Frank seems to argue that the ALJ must in every case articulate separate and distinct

findings that the applicant can perform the incidents of a job and that he can maintain the job over

a sustained period, even if the applicant does not contend that his situation resembles Singletary’s.

We reject this approach. Singletary simply interpreted “disability” under the Act to apply to cases

in which a person could work for short periods, but could not hold a job. It did not require, as Frank

seems to suggest, separate findings on “obtaining” and “maintaining” a job in every case, even cases

in which the applicant does not suggest that there is any difference between the issue of his ability to

work and his ability to sustain work.

                                                  III


                                                  -4-
       Frank also contends that the ALJ relied on impermissible factors in assessing her credibility.

Frank claimed that she would rather work, if she were able, than accept disability payments. The ALJ

noted that, if this statement were true, it would lend support to her claim of disability. He decided

that Frank’s statement was not credible, however, at least in part because she was unemployed for

five years even before she was injured. He reasoned that, if Frank really felt so strongly about

wanting to work, she would have found some employment in the five years before she sustained

injuries. Frank objects to this reasoning, arguing that her employment status prior to her injury is

simply not relevant to the determination of her disability status.

       Frank also points to language in the ALJ’s decision in which he questions her credibility in

light of the medical evidence. The ALJ seems to draw his own medical conclusions from some of the

data, without relying on a medical expert’s help:

       The undersigned finds it significant that despite allegations of disabling impairments since
       October of 1993, consultative examinations . . . revealed no evidence of atrophy. It would
       seem reasonable that disabling symptoms that allegedly preclude any significant walking,
       standing, sitting, lifting, and carrying would result in observable findings of atrophy or muscle
       tone loss . . . .

It would appear from this paragraph that the ALJ made his own medical conclusions about whether

a patient would show signs of atrophy or muscle tone loss as a result of Frank’s alleged impairments.

The Seventh Circuit has, in several cases, warned ALJ’s against “playing doctor” and making their

own independent medical assessments. For example, in Schmidt v. Sullivan, 914 F.2d 117, 118 (7th

Cir.1990), Judge Posner warned:

       But judges, including administrative law judges of the Social Security Administration, must
       be careful not to succumb to the temptation to play doctor. . . . The medical expertise of the
       Social Security Administration is reflected in regulations; it is not the birthright of the lawyers
       who apply them. Common sense can mislead; lay intuitions about medical phenomena are
       often wrong.


                                                  -5-
In Schmidt, a former executive claimed that he could not return t o high stress executive positions

because of a heart condition. The executive nevertheless remained physically active and played

handball for forty minutes a week. The ALJ relied heavily on this fact in concluding that the

executive was not disabled. The Seventh Circuit rejected this reasoning, holding that the ALJ could

not substitute his medical judgment for a doctor’s. Although common sense might dictate that a

person who can play handball can ho ld down a job, common sense about medical matters is often

wrong.

         We decline to reach the merits of either of these two argument s, because, even if the ALJ

made any error, the error would be harmless. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir.

1988) (applying harmless error analysis in disability benefits context). The ALJ’s twelve-page, single

spaced opinion relies very little on his assessment of Frank’s credibility. Instead, the overwhelming

factor in t he decision was medical evidence from a variety of sources indicating that Frank could

indeed hold down her old job as a clerical worker. It is inconceivable that the ALJ would have

reached a different conclusion on this record, even had the ALJ accepted at face value Frank’s

statement that she would prefer to work.

         We therefore AFFIRM the decision of the district court granting summary judgment in favor

of the Commissioner.




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