                                                        United States Court of Appeals
                                                                 Fifth Circuit
                                                              F I L E D
                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT                 October 27, 2006

                                                          Charles R. Fulbruge III
                            No. 06-50421                          Clerk
                          Summary Calendar


                          CHARLIE M. BECK,

                                               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
                            (04-CV-148)
_________________________________________________________________


Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.

PER CURIAM:*

          Plaintiff-Appellant Charlie M. Beck appeals the district

court judgment affirming the administrative law judge’s (“ALJ”)

determination that she is not entitled to Supplemental Security

Income (“SSI”) disability benefits under Title XVI of the Social

Security Act.

          Beck alleges several grounds for reversal by this 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this opinion should not be published and is not precedent except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.

                                  1
namely, that the ALJ (1) failed to apply the proper legal standard

in    evaluating       the     cumulative      impact      of    her     impairments;

(2) improperly discounted the aggravating effect of obesity on her

other impairments; (3) improperly evaluated the subjective symptoms

of impairment presented at the hearing; and (4) failed to conform

his residual functional capacity (“RFC”) determination to the legal

standard required by this court or support it with substantial

evidence from the record.          Finally, Beck alleges that the Appeals

Council     erred      in     rejecting       her    request     for     remand   and

reconsideration by the ALJ.         We address each of her claims in turn.

                  I.    FACTUAL AND PROCEDURAL BACKGROUND

            Claimant Charlie M. Beck was 54-years old at the time of

the administrative law hearing and has an eleventh-grade education.

She   has   not    been      employed   since       at   least   1985,    but   worked

sporadically as a babysitter for her daughter’s children until the

onset of her physical ailments.

            On March 15, 2002, Beck protectively filed her second

application for SSI under Title XVI of the Social Security Act,

alleging that she was unable to engage in substantial gainful

activity due to high blood pressure, osteoporosis and rheumatoid

arthritis.    Her application is composed substantially of medical

records from the Medical Center Hospital in Odessa, Texas, where

Beck has sought various out-patient medical treatment since July

1999.



                                          2
           In March 2002, Beck underwent knee and lumbar spine x-

rays in response to complaints of fatigue and back pain.                             The

doctor’s   report    noted     “moderate       changes     of   degenerative         disc

disease at L3-4 with no evidence of fracture or spondylolisthesis”

and arrived at a conclusion of “no acute findings.”

           Two months later, on May 23, Beck requested an internal

medicine consultative examination for purposes of obtaining an SSI

disability    determination.             In    his    post-examination         report,

Dr. Madhu Pamganamamula recorded that Beck complained of frequent

joint pain    in    both    hips,    numbness        in   her   lower    extremities,

dyspnea, and intermittent chest pain. Dr. Pamganamamula noted that

Beck had a normal gait and no difficulty walking or performing

everyday tasks, although she did require periodic rest breaks when

shopping or attending church.             Dr. Pamganamamula concluded that

Beck’s hypertension was adequately controlled by medication and

that she displayed only “mild functional impairment secondary to

her medical conditions.”

           The      Social        Security      Administration’s             Disability

Determination Services (“DDS”) then conducted an RFC evaluation.

Dr. Barnes, the reviewing physician, found that Beck was capable of

occasional lifting/carrying of 50 pounds, frequent lifting/carrying

of 25 pounds, and that she could stand or walk (with normal breaks)

for   about   6    hours     in     an   8-hour       workday.          He   noted     no

manipulative/motor         problems,     and    no     visual    or     communicative

difficulty, concluding that the physical impairments alleged by

                                          3
Beck were “not fully supported” by his observations.               Both the

opinions of Drs. Pamganamamula and Barnes were included in Beck’s

SSI application.

           The   Social   Security     Administration     initially   denied

Beck’s   application      on   June       17,   2002.   Her   petition    for

reconsideration was denied on September 13, 2002. Beck then timely

requested a hearing for de novo review of her application before an

ALJ, held on February 12, 2003.             Beck, represented by counsel,

testified at the hearing.

           The ALJ issued an unfavorable decision on April 7, 2003,

finding that Beck retained sufficient residual functional capacity

and relevant vocational characteristics required for performance of

medium work activity and was therefore not disabled, as defined in

the Social Security Act, at any time through the date of the

administrative law hearing.      The ALJ further concluded:       that Beck

had no relevant past employment history or skills; that although

Beck’s subjective complaints of pain were related to medically

determinable physical impairments, Beck’s testimony regarding her

subjective complaints and functional limitations was not credible

or reasonably supported by objective medical evidence; and that

medical evidence produced by Beck established the existence of

severe   impairments   including      hypertension,     osteoarthritis,    GE

reflux, and obesity, but that no single impairment or combination

thereof was sufficiently severe to qualify her for SSI.

           Undeterred by the ALJ’s ruling, Beck requested review by

                                      4
the Appeals Council and accompanied her application to that body

with an x-ray of her left knee and a bilateral lower extremity

Doppler study, both of which were performed within two months after

the ALJ’s unfavorable ruling.          The knee x-ray report showed no

bone, joint or soft tissue abnormalities and presented no evidence

of fracture or dislocation.         The Doppler study showed that Beck

suffered    from   peripheral      vascular   disease   characterized   by

significant stenosis in the right common femoral artery.                On

September   10,    2004,   after   considering   Beck’s   entire   record,

including the two new medical reports, the Appeals Council denied

Beck’s SSI application, thus rendering the ALJ’s April 7, 2003,

ruling the final administrative determination of the Commissioner

of Social Security.

            Beck then sought judicial review of the Commissioner’s

decision in the district court.       On January 25, 2006, after de novo

review, the district court, the Hon. Robert Junell, United States

District Judge for the Western District of Texas, issued a Final

Judgment and Order adopting the magistrate judge’s report and

recommendation to affirm the commissioner’s decision and dismissed

Beck’s complaint with prejudice.          Beck now appeals the district

court judgment.

                             II.    DISCUSSION

            The SSI administrative review process includes an initial

determination of eligibility, reconsideration, a hearing before an



                                      5
ALJ, and review by the Appeals Council, 20 C.F.R. § 416.1400(a)(1)-

(4), whereupon a still-unsatisfied claimant may seek review by the

district court, and, ultimately, this court. Id. § 416.1400(a)(5).

1.   Standard of Review

           On appeal before this court, the ALJ’s determination that

an SSI claimant is not disabled will be upheld if it is based upon

substantial evidence from the record as a whole and if proper legal

standards were applied in consideration of the evidence.              See

42 U.S.C. § 405(g); Higginbotham v. Barnhart, 405 F.3d 332, 335

(5th Cir. 2005); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.

1990).   Substantial evidence requires more than a scintilla, but

less than a preponderance, and is such relevant evidence that a

“responsible   mind   might   accept   as   adequate   to   support    a

conclusion.” Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir. 2002)

(citing Villa, 895 F.2d at 1021-22).    Substantial evidence will be

lacking “only where there is a ‘conspicuous absence of credible

choices’ or ‘no contrary medical evidence.’”     Haywood v. Sullivan,

888 F.2d 1463, 1467 (5th Cir. 1989)(citing Hames v. Heckler,

707 F.2d 162, 164 (5th Cir. 1983)(per curiam)).        This court will

not reweigh the evidence de novo or substitute its judgment for

that of the Commissioner, Fraga v. Bowen, 810 F.2d 1296, 1302 (5th

Cir. 1987), even if we believe the evidence weights against the

Commisioner’s decision, Masterson v. Barnhart, 309 F.3d 267, 272

(5th Cir. 2002).



                                  6
2.   Combined Impact of Impairments

           Beck alleges that the ALJ did not properly evaluate the

combined impact of her impairments and as a result underestimated

the severity of her disability.    We have held on numerous occasions

that in making a disability determination, the examining ALJ must

analyze the disabling effect of both the claimant’s ailments

individually and for their cumulative impact.        See, e.g., Loza v.

Apfel, 219 F.3d 378, 399 (5th Cir. 2000); Crowley v. Apfel,

197 F.3d 194, 197 (5th Cir. 1999); Fraga, 810 F.2d at 1305; see

also 20 C.F.R. §§ 404.1523, 416.923.        Additionally, a finding of

nonseverity based upon the failure to examine the cumulative impact

of a claimant’s alleged impairments is per se not supported by

substantial evidence.    Wingo v. Bowen, 852 F.2d 827, 830-31 (5th

Cir. 1988); Loza, 219 F.3d at 394.

           The ALJ’s findings in this case adequately adhere to the

analytical mandates outlined above.     In performing his cumulative

impact analysis, the ALJ relied on Beck’s own testimony, the

reports of   her   treating   physicians,   and   the   DDS   examiner    to

conclude that she suffered from severe impairments.           The ALJ then

determined that the cumulative impact of Beck’s impairments did not

combine to limit her functional capacity and she therefore did not

satisfy the requirements for SSI eligibility.            See Listing of

Impairments at 20 C.F.R. Part 404, Subpart P, Appendix 1.                The

ALJ’s analysis is supported by substantial evidence and satisfies



                                   7
the proper legal standard required under our cumulative impact

jurisprudence.2

3.    Consideration of Obesity in the Evaluation Process

             As a corollary to her cumulative impact argument, Beck

posits     that       the   ALJ     failed     to    consider          that    obesity       has    a

multiplier effect whereby it can exacerbate existing ailments and

magnify their cumulative impact.                    In so doing, Beck contends, the

ALJ rendered a decision unsupported by substantial evidence and

based on an erroneous legal standard.                       This contention is without

merit.

             Social Security rulings indicate that obesity – although

itself not        a    listed       impairment       –    can    reduce       an       individual’s

occupational base for work activity in combination with other

ailments.         See       SSR     02-1p    (stating           that    obesity         remains     a

complicating          factor      for   many        ailments       and    is       a    “medically

determinable          impairment”       to     be        considered       in       assessing       an

individual’s RFC); SSR 96-8p (stating that the effects of obesity

may   be   considered          as    part    of      an    RFC’s       function-by-function

      2
     Beck’s attempt to analogize the ALJ’s findings in this case
with those of the ALJ in Scott v. Heckler, 770 F.2d 482 (5th Cir.
1985), is not on point. In Scott, we determined that an ALJ’s
conclusory “evaluation of the evidence” without consideration of
the combined impact of a claimant’s impairments incorrectly
applied the legal standard for cumulative impact required by this
court. 770 F.2d at 487. Here, however, the ALJ’s inquiry is
squarely in line with the requirement that an ALJ “consider the
combination of unrelated impairments ‘to see if together they are
severe enough to keep the claimant from doing substantial gainful
activity.’” Id. (citing Dorsey v. Heckler, 702 F.2d 597, 605
(5th Cir. 1983)).

                                                8
analysis); 64 F.R. 46122 (retracting obesity as a listed impairment

under 20 C.F.R., Subpart P, Appendix 1).

          In spite of Beck’s failure to specifically allege obesity

as a disability justifying award of SSI – her application states

that the only illnesses limiting her ability to work are “high

blood pressure, osteoporosis, and rheumatoid arthritis” – the ALJ

independently acknowledged that obesity should be considered in

conjunction with her other impairments.3 In accord with applicable

Social Security rulings, the ALJ considered Beck’s obesity in

combination    with    her     other   impairments     in   making   his    RFC

determination, and discussed her ability to perform sustained work

activities.   See SSR 02-1p & 96-8p.        There is no support for Beck’s

contention    that    the    ALJ’s   decision   was   not   characterized    by

substantial record evidence.

          Nor is there any basis for the allegation that the ALJ

applied an erroneous legal standard in his appraisal of the effect

of obesity on Beck’s combined impairments.             Beck’s contention to

the contrary, citing our decision in Moore v. Sullivan, 895 F.2d

1065 (5th Cir. 1990), is unpersuasive on this account.               In Moore,

an ALJ incorrectly rejected an application for SSI benefits based

on the conclusion that the claimant’s mental disorder did not

     3
     The ALJ stated in his second finding that “[t]he medical
evidence establishes that claimant has severe impairments,
including hypertension; osteoarthritis; GE reflux: and obesity
(approximate body mass index: 36), but she does not have an
impairment or combination of impairments that are listed in, or
that equal in severity an impairment found in the Listing....”

                                        9
prevent her from gainful employment for a minimum of twelve months

prior to her eligibility.       The legal standard applied by the ALJ

was in direct contradiction to this court’s decision in Singletary

v. Bowen, 798 F.2d 818 (5th Cir. 1986), which held that the only

durational requirement contained in the relevant statute was that

the impairment last or be expected to last for twelve months.

Here,   in   stark   contrast    to    the    ALJ’s    obvious       disregard   of

applicable law in Moore, there is no indication that the ALJ has

misapplied     the   applicable       legal    standards        in    holistically

evaluating Beck’s impairments in conjunction with her obesity, or

that he ignored the possibility that obesity aggravates some of

Beck’s unquestionably serious physical conditions.

4.   Evaluation of Subjective Symptomology

             Beck next contends that the ALJ failed to make adequate

credibility     findings   regarding         her   subjective        symptomology,

specifically, her complaints of arthritic joint pain, as required

under SSR 96-7P, SSR 96-8P and 20 C.F.R. § 416.929, and that his

credibility    determination    is     supported      neither    by    substantial

evidence nor applies the proper legal standard to the evidence of

record.

             Once a medical impairment is established, an ALJ “must

consider subjective evidence of nonexertional ailments, such as

pain, which may have a disabling effect.”             James v. Bowen, 793 F.2d

702, 706 (5th Cir. 1986).       Pain constitutes a disabling condition,



                                       10
however,     only     when    “it       is    constant,   unremitting,       and    wholly

unresponsive to therapeutic treatment.”                   Cook v. Heckler, 750 F.2d

391, 395 (5th Cir. 1985).

              The standard for evaluation of subjective symptoms such

as pain is found at 20 C.F.R. § 416.929 and is explained further in

SSR 96-7p.      In summary, even if a claimant’s subjective symptoms

are not fully justified by objective medical evidence, the ALJ

cannot disregard them but must make a credibility finding based on

the entire record.                See, 20 C.F.R. § 416.929 (outlining the

evaluation calculus for determining and measuring the credibility

of    a    claimant’s       subjective         symptomology     and   symptom-derived

functional limitations); SSR 96-7p (requiring case adjudicator to

make specific findings of credibility based on the case record).

              There    is    no    basis       for   Beck’s   claim   that    the    ALJ’s

determination       lacked        substantial        evidentiary   support.         Beck’s

examining physicians detailed the impact of her impairments on her

mobility and ability to function normally.                    According to the ALJ,

her       testimony     at        the        administrative     hearing      conflicted

significantly with these diagnoses.                   It is the role of the ALJ, not

this court, to resolve such evidentiary conflicts.                            Patton v.

Schweiker, 697 F.2d 590, 592 (5th Cir. 1983); James, 793 F.2d at

706 (stating that an ALJ’s findings regarding the credibility of

subjective symptom testimony is “entitled to considerable judicial

deference.”).         Quite simply, the ALJ evaluated the testimony and

concluded that Beck’s “subjective complaints are exaggerated.”

                                                11
This determination was based on reference to her own internally

inconsistent testimony and medical reports detailing her condition.

           Using the available medical evidence, the ALJ determined

that Beck’s physical pain was not of a disabling nature.               In so

doing, the ALJ in no way failed to make the necessary credibility

choices and indicate the basis for those choices in resolving the

crucial subsidiary fact of the truthfulness of Beck’s subjective

symptoms and complaints.       See Hayes v. Celebrezze, 311 F.2d 648,

653-54 (5th Cir. 1963).         Accordingly, we do not disturb the

credibility determination of the ALJ.

5.   The ALJ’s Residual Functional Capacity Determination

           Beck further challenges the ALJ’s residual functional

capacity (“RFC”) determination that she retains the exertional

capacity   for   performance   of   the   full   range   of   medium   work,4

alleging that it is not based upon substantial evidence and does

not apply the proper legal standards required by this court’s

decision in Myers v. Apfel, 238 F.3d 617, 620-621 (5th Cir. 2001),

20 C.F.R. § 416.967 and SSR 96-8p.

     4
     20 C.F.R. § 416.967(c) provides that “[m]edium work
involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she can also
do sedentary and light work.” Myers contains largely the same
definition, with interpolations from SSR 96-8p and describes the
various functions required for normal work activities, including
exertional factors like “sitting, standing, walking, lifting,
carrying, pushing, and pulling. Each function must be considered
separately.” 238 F.3d at 620. SSR 96-8p provides in-depth
guidelines describing the various exertional and nonexertional
factors which should figure in the ALJ’s determination.

                                    12
             In Myers, we held that when making an RFC determination

for an SSI claimant, an ALJ must perform a function-by-function

assessment of a claimant’s capacity to perform sustained work-

related physical and mental activities.                  238 F.3d at 620-22.           Beck

argues that the absence of a function-by-function analysis in the

ALJ’s decision mandates reversal and remand.

             The    ALJ’s   RFC     determination         here       was    supported   by

substantial evidence and satisfies the standards announced in

Myers.     The ALJ based his decision in part on the medical reports

of    Drs.   Pamganamamula        and    Barnes,      which      contain      a   general

evaluation of Beck’s mobility and a function-by-function analysis

of the impact of her impairments on her ability to perform various

tasks.5      These reports, cited in conjunction with the ALJ’s own

appraisal     of   Beck’s   testimony          and   review    of     the    record,    are

supported by substantial evidence and satisfy the Myers standard.

See   Onishea      v.   Barnhart,       116    F.App’x    1,     2    (5th    Cir.   2004)

(unpublished)(stating that an RFC assessment based in part on the

function-by-function analysis of claimant’s exertional limitations

contained in a state examiner’s medical report satisfies the legal

standard set forth in Myers and SSR 96-8p).

6.    Submission of Additional Evidence to Appeals Council

              Finally, Beck contends that the additional evidence she


       5
     The RFC assessment performed by Dr. Barnes specifically
analyzes each separate exertional limitation according to the
categories listed in SSR 98-6p and 20 C.F.R. § 416.967.

                                              13
provided to the Appeals Council was new and material, requiring

that       body   to    refer    the    decision    back    to   the    ALJ    for

reconsideration.           The   Appeals       Council   disagreed     with   this

contention and so do we.               We have expressly declined to adopt

Beck’s position – the same one espoused by the 11th Circuit’s

ruling in Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998) –

that the substantial evidence standard does not apply to evidence

submitted to the Appeals Council and rejected by it as neither new

nor material.6         Higginbotham v. Barnhart, 405 F.3d 332 (5th Cir.

2005) (rejecting the position adopted by the 11th Circuit in

Falge).       Accordingly, we agree with the Appeals Council and the

District Court and find that the evidence submitted to the Appeals


       6
      Beck contends that the test to be applied to evidence
submitted to the Appeals Council after the ruling of an ALJ is
the one announced in Falge, which states that in order to obtain
remand a claimant must establish new, noncumulative evidence;
prove that such evidence is material, i.e., relevant and
probative so that a reasonable probability exists that it would
change the administrative results; and provide good cause for
failure to submit the evidence at the administrative level. 150
F.3d at 1323; see Keeton v. Dep’t of Health & Human Svcs., 21
F.3d 1064, 1068 (11th Cir. 1994). This court rejected this view
in Higginbotham and continue to adhere to that case’s holding
that after-submitted evidence considered by the Appeals Council
constitutes part of the record upon which the final decision on
eligibility is based, and that all record evidence, irrespective
of its submission date, is subject to district court review.
Higginbotham, 405 F.3d at 337. We find no occasion to hold that
the district court should apply a different evidentiary standard
to only certain portions of the Commissioner’s final judgment.
To do so would be an invitation to attorneys to “hold back some
of their evidence in hopes of seeking reconsideration if
proceedings are not initially successful for the clients” under
the more stringent substantial-evidence standard. Higginbotham
v. Barnhart, 163 F.App’x 279, 282 (5th Cir. 2006).

                                          14
Council was not material and did not provide a basis for reversal,

and that the ALJ’s decision was based upon substantial evidence

from the record as a whole.

                            III.   CONCLUSION

          In   light   of   the    foregoing    analysis   of   Plaintiff-

Appellant’s claims, we hereby AFFIRM the judgment of the district

court.

          AFFIRMED.




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