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

                                                                            FILED
                                                                          January 7, 2008

                                     No. 07-50628                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DOMINIQUE HOELCK,

                                                  Plaintiff - Appellant,
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                                                  Defendant - Appellee.



                   Appeal from the United States District Court
                        for the Western District of Texas
                                   1:06-CV-526


Before WIENER, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
       The plaintiff-appellant, Dominique Hoelck, appeals the district court’s
order affirming the decision of the Commissioner of the Social Security
Administration (“Commissioner”) that the plaintiff was not disabled within the
meaning of the Social Security Act and thus not entitled to either Disability
Insurance Benefits (“DIB”), 42 U.S.C. § 423, or Supplemental Security Income
(“SSI”), 42 U.S.C. § 1382c(a)(3). 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50628

      Alleging that she could no longer work after February 6, 2003 due to
clinical depression, the plaintiff applied for DIB and SSI benefits. Apart from
depression, the plaintiff suffered other physical and mental ailments that
allegedly contributed to her disability, including, for example, osteoporosis,
fibromyalgia, bipolar disorder, and anxiety disorder.       Her application was
denied. The plaintiff requested and was granted a hearing on her claim for
benefits. After hearing testimony from the plaintiff, a medical expert, and a
vocational expert and receiving and reviewing additional evidence documenting
the plaintiff’s various conditions, an administrative law judge (“ALJ”) for the
Social Security Administration (“SSA”) determined that the plaintiff was not
entitled to benefits. The ALJ concluded that the plaintiff’s conditions, while
severe, were not disabling and that the plaintiff retained the capacity for work
that exists in significant numbers in the national economy. The Appeals Council
for the SSA denied the plaintiff’s request for review. As a result, the ALJ’s
decision became the final decision of the Commissioner. The plaintiff then
sought review of that decision in the district court pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3).     The district court affirmed the Commissioner’s
decision, and the plaintiff now appeals.
      On appeal, the plaintiff raises four arguments. First, the plaintiff argues
that the ALJ did not properly consider the plaintiff’s physical and mental
impairments.    Second, the plaintiff argues that the ALJ did not properly
consider the opinion of her treating physician. Third, the plaintiff argues that
the ALJ erred in assessing the plaintiff’s credibility with respect to her
subjective complaints. Fourth, the plaintiff argues that the ALJ’s finding that
the plaintiff could perform the light work jobs identified by the vocational expert
was not supported by substantial evidence. These arguments are without merit.
      Our review of the final decision of the Commissioner is limited to two
inquiries: “(1) whether the Commissioner applied the proper legal standard; and


                                        2
                                      No. 07-50628

(2) whether the Commissioner’s decision is supported by substantial evidence.”
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002); Brock v. Chater, 84 F.3d
726, 728 (5th Cir. 1996). We may neither reweigh the evidence nor substitute
our judgment for that of the Commissioner. Audler v. Astrue, 501 F.3d 446, 447
(5th Cir. 2007); Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir. 1990).
       First, the Commissioner properly considered the plaintiff’s physical and
mental impairments. Hoelck argues that the ALJ did not give any explanation
for the conclusions he reached regarding her residual functional capacity
(“RFC”). This is incorrect; the ALJ offered a thorough explanation for his RFC
finding, which adequately discussed and mentioned Hoelck’s various alleged
physical and mental impairments and which was supported by substantial
evidence.
       Hoelck also accuses the ALJ of impermissibly picking and choosing only
that evidence supporting the ALJ’s finding. Specifically, Hoelck complains that
the ALJ considered only her higher GAF scores, ignoring the lowest of three
GAF scores in the record and the one most suggestive of disability.1 While the
ALJ did not expressly mention the lowest GAF score, the ALJ noted the medical
visit in which the plaintiff received that score, suggesting that the ALJ did in
fact consider it. Moreover, as the district court correctly noted, this lowest GAF
score was assessed by a non-physician at the initiation of treatment and, as
such, did not come from an acceptable medical source.                      See 20 C.F.R.
§§ 404.1513, 416.913(a). We find no error in the ALJ’s failure to expressly
mention the lowest GAF score, which the ALJ could have permissibly concluded
was entitled to less weight. See Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir.


       1
         GAF is an acronym for Global Assessment of Functioning. “GAF is a standard
measurement of an individual’s overall functioning level ‘with respect only to psychological,
social, and occupational functioning.” Boyd v. Apfel, 239 F.3d 698, 700 n.2 (5th Cir. 2001)
(quoting AMERICAN PSYCHIATRIC ASS’N DIAGNOSTIC AND STATISTICAL MANUAL at 32 (4th ed.
1994)).

                                             3
                                   No. 07-50628

1991) (“It was within the discretion of the ALJ to determine the credibility of the
various medical reports in the record . . . .”).
      Hoelck also complains about the ALJ’s reliance on the highest GAF score,
arguing that it was produced by a non-examining physician. Her contention is
not supported by the record. As the record shows, the physician that assessed
that score was in fact an examining physician. In sum, we conclude that the
Commissioner properly considered the plaintiff’s physical and mental
impairments.
      Second, the ALJ properly considered the opinion of Hoelck’s treating
physician. Contrary to Hoelck’s assertion, the ALJ did not reject the opinion of
Hoelck’s treating physician. Rather, the record reflects that the ALJ properly
considered the opinion of Hoelck’s treating physician in addition to the opinion
of another examining physician. Also, Hoelck argues that the ALJ failed to
consider evidence of her poor concentration and fatigue. However, there is no
indication that the ALJ failed to consider these symptoms in reaching the
broader conclusion that the plaintiff suffered from depression, bipolar disorder,
and anxiety disorder. To the extent that the ALJ failed to consider the plaintiff’s
allegations of poor concentration and fatigue, a point which we doubt, the
plaintiff has failed to demonstrate any prejudice based on such failure. See
Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996) (“We will not reverse the
decision of the ALJ for lack of substantial evidence where the claimant makes
no showing that he was prejudiced in any way by the deficiencies he alleges.”).
Even crediting the plaintiff’s allegations of poor concentration and fatigue, the
ALJ’s decision was based on substantial evidence.
      Third, the ALJ did not err in assessing the plaintiff’s credibility with
respect to her subjective complaints. The ALJ properly considered the record as
a whole, including the available medical evidence and the nature and extent of
the plaintiff’s daily activities, in determining that the plaintiff’s subjective

                                          4
                                      No. 07-50628

complaints were not fully credible. See Hollis v. Bowen, 837 F.2d 1378, 1384–85
(5th Cir. 1998) (explaining that the lack of objective factors supporting subjective
allegations of pain were properly considered in determining credibility); see also
Leggett v. Chater, 67 F.3d 558, 565 (5th Cir. 1995) (considering a plaintiff’s daily
activities as support for the ALJ’s findings that the plaintiff was capable of
performing past relevant work). The ALJ’s credibility findings with respect to
the plaintiff’s subjective complaints are supported by substantial evidence.2
       Fourth and finally, the ALJ’s finding that the plaintiff could perform the
light work jobs identified by the vocational expert was supported by substantial
evidence. The ALJ described three jobs that Hoelck was capable of performing:
officer order caller, final assembler, and production line worker. Hoelck points
out that the last two jobs described by the ALJ were never identified by the
vocational expert. As such, Hoelck argues that the ALJ’s finding that Hoelck
could perform these other light jobs, not mentioned by the vocational expert, was
not supported by substantial evidence. Any error in this regard was harmless
because the ALJ correctly identified, at the very least, one job that Hoelck could
perform. See Frank v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003) (applying the
harmless error doctrine in the disability benefits context). The plaintiff did not
satisfy her burden of rebutting the ALJ’s finding that she could perform the job
of order caller, of which there are a significant number of jobs in the national
economy. See Crowley v. Apfel, 197 F.3d 194, 198 (5th Cir. 1999) (explaining
that once the Commissioner establishes that a claimant is capable of performing




       2
        Hoelck points out that the ALJ mistakenly described Hoelck as attending church three
times a week when in fact Hoelck reported going to church only once per week. Hoelck,
however, was not prejudiced by this minor mistake. Despite this mistake, the ALJ’s decision
is supported by substantial evidence.

                                             5
                                       No. 07-50628

other gainful employment, the claimant must prove that the claimant cannot in
fact perform the alternate work).3
       The Commissioner’s decision is supported by substantial evidence.
Finding no reversible error, we AFFIRM.




       3
         Hoelck argues that she could not perform the jobs identified by the vocational expert
because she would inevitably miss more than two days of work per month and the vocational
expert testified that the customary tolerance for absences in those jobs was no more than two
days per month. The ALJ’s did not expressly address this point. Nonetheless, we cannot say
the ALJ erred. Hoelck’s own treating physician testified that she could maintain appropriate
behavior with psychiatric consultation. Based on the record as a whole, the ALJ’s conclusions
regarding plaintiff’s disability are supported by substantial evidence.

                                             6
