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

                                                                            FILED
                                                                         February 14, 2008

                                     No. 07-50859                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


ANDRES SANCHEZ

                                                  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
                              Case No. 1:06-CV-500


Before JONES, Chief Judge, and REAVLEY and PRADO, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Andres Sanchez challenges the Commissioner of Social
Security’s final decision to deny his claim for disability benefits. Because the
Commissioner’s decision is supported by substantial evidence and is consistent
with applicable law, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-50859

                                I. BACKGROUND
          On September 23, 2003, Sanchez applied for disability benefits under
Title II and Title XVI of the Social Security Act. Sanchez alleged that he was
unable to work due to bronchitis, hypertension, sleep apnea, congestive heart
failure    (CHF),   human    immunodeficiency     virus   (HIV),   and   acquired
immunodeficiency syndrome (AIDS).           The Commissioner denied Sanchez’s
claims at the initial and reconsideration levels of the application process.
Sanchez then requested and received a hearing before an Administrative Law
Judge (ALJ). The ALJ heard testimony from Sanchez, a medical expert, and a
vocational expert. On September 20, 2005, the ALJ issued a written decision
denying Sanchez’s application for benefits. When the Appeals Council denied
Sanchez’s request for review, the ALJ’s decision became the Commissioner’s
final decision for purposes of judicial review. Sanchez filed suit, and the matter
was referred by consent to a magistrate judge. The magistrate judge, acting as
the district court, upheld the ALJ’s decision.
                                II. DISCUSSION
      We review the Commissioner’s decision to deny social security benefits
only to determine whether the decision is supported by substantial evidence and
based on proper legal standards. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir.
1999); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). Substantial
evidence is “more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation
omitted). We may not reweigh the evidence or substitute our own judgment for
that of the Commissioner. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
      Sanchez argues that the ALJ erred in concluding that he was not disabled.
In finding that Sanchez was not disabled, the ALJ executed the multi-step
sequential inquiry required under 20 C.F.R. § 404.1520.            The ALJ first

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determined that Sanchez was not currently engaged in substantial gainful
employment. Second, the ALJ concluded that some of Sanchez’s impairments
— namely, his chronic back and leg pain, HIV, CHF, sleep apnea, and drug and
alcohol abuse — were severe. Third, the ALJ found that Sanchez was not
entitled to a presumption of disability because none of his severe impairments,
either individually or collectively, corresponded to an impairment specifically
listed in the regulations. Fourth, the ALJ determined that Sanchez retained the
residual functional capacity to lift and carry twenty pounds occasionally and ten
pounds frequently, and to stand, walk, and sit six hours in an eight-hour
workday, so long as he avoided exposure to extreme temperatures. The ALJ
considered Sanchez’s subjective, alleged limitations but found such complaints
not totally credible. Based upon these findings, the ALJ determined that
Sanchez could return to his past relevant work as a cashier or general clerk.
Accordingly, the ALJ held that Sanchez was not disabled within the meaning of
the Social Security Act.
      Sanchez argues that substantial evidence does not support the ALJ’s
conclusion that he is capable of performing his past relevant work as a cashier
or general clerk. First, Sanchez contends that the ALJ disregarded evidence
that his fatigue and weakness would require him to frequently miss work.
However, the record indicates that the ALJ properly considered and rejected
absenteeism as a potential limiting factor. The ALJ specifically questioned the
vocational expert about the number of permissible absences per month for a
hypothetical cashier or clerk. The ALJ also heard testimony from a medical
expert, Dr. Turbeville, indicating that Sanchez’s weakness and fatigue would not
result in an unacceptable number of absences. Dr. Turbeville stated that if
Sanchez avoided extreme temperatures, he could perform light work without a
problem. Substantial evidence supports the ALJ’s decision to reject absenteeism
as a limiting factor.


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      Sanchez also contends that the ALJ erred by disregarding his depression
in finding that he could perform past relevant work. This argument is without
merit. The physicians of record reported that Sanchez had no severe mental
limitations. Moreover, Sanchez testified that he took medication that helped his
depression, and Dr. Turbeville opined that Sanchez had not complained of
depression since starting the medication. If an impairment reasonably can be
remedied or controlled by medication or therapy, it cannot serve as a basis for
a finding of disability. Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988).
Substantial evidence supports the ALJ’s conclusion that Sanchez’s depression
would not preclude him from performing his past relevant work.
      Next, Sanchez asserts that the ALJ erred by adopting the opinion of Dr.
Turbeville, a medical expert, over that of Dr. Werntz, a doctor who actually
treated Sanchez. In April 2003, Dr. Werntz reported that “[d]ue to health
related concerns, Mr. Sanchez may not be able to maintain gainful employment
at this time.” Ordinarily, the opinions, diagnoses, and medical evidence of a
treating physician should be accorded considerable weight in determining
disability. Perez v. Barnhart, 415 F.3d 457, 465–66 (5th Cir. 2005). However,
a physician’s conclusory opinion of disability intrudes upon an area reserved to
the Commissioner, and the ALJ may reject such an opinion without referring to
the factors used to evaluate a typical medical opinion. Frank v. Barnhart, 326
F.3d 618, 620 (5th Cir. 2003). The ALJ properly rejected Dr. Werntz’s conclusory
statement regarding Sanchez’s ability to maintain employment.
      Finally, Sanchez argues that the ALJ erred in finding that his allegations
were “not totally credible.” We disagree. First, Sanchez offered inconsistent
accounts of his condition. For instance, Sanchez complained of debilitating
weakness and fatigue, but testified that he could lift approximately fifty pounds
and that he could cook, do laundry, clean, grocery shop and drive. See Leggett
v. Chater, 67 F.3d 558, 565 n.12 (5th Cir. 1995) (considering ability to conduct

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daily activities in assessing credibility). Sanchez also alleged that he could not
afford to purchase a CPAP device to alleviate his sleep apnea, but the record
indicates that he smoked and regularly abused alcohol. In addition, the medical
evidence demonstrated that, despite his allegations, Sanchez exhibited virtually
no external manifestations of pain, and past pain had been alleviated by
medication. See Hollis v. Bowen, 837 F.2d 1378, 1384 (5th Cir. 1988) (lack of
external manifestation of pain, such as limitations in motion or ambulation,
indicates lack of disabling pain).    Substantial evidence supports the ALJ’s
determination that Sanchez’s complaints are not totally credible.
      For these reasons, we conclude that the Commissioner properly denied
Sanchez disability benefits and affirm the judgment of the district court.
            AFFIRMED.




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