                                               07-51211

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

                                                                                       FILED
                                                                                     August 11, 2008
                                          No. 07-51211
                                                                                 Charles R. Fulbruge III
                                        Summary Calendar                                 Clerk


GLORIA J PINEDA

                                                         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
                                USDC No. 5:06-CV-844


Before REAVLEY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
        Gloria Pineda appeals the denial of her claim for disability and
supplemental security income benefits. The Social Security Administration
denied her applications for benefits both initially and upon reconsideration.
After a hearing, an Administrative Law Judge (“ALJ”) determined that Pineda
was not disabled. The Appeals Council denied her request for review, making
the determination of the ALJ the final decision of the Commissioner of Social

        *
          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 R. 47.5, the court has determined that this opinion should not be published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.
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Security Administration. The district court affirmed, and we now do the same.
      Pineda alleges that she is disabled mainly due to back, right shoulder, and
neck pain and impairment. She claims a disability onset date of March 19, 2002.
There is a five-step sequential procedure for making a disability determination
under the Social Security Act. This procedure was set forth in Crowley v. Apfel,
197 F.3d 194 (5th Cir. 1999):
      The Social Security Act defines “disability” 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 result in death or which has lasted or can be expected
      to last for a continuous period of not less than 12 months.” To
      determine whether a claimant is disabled, and thus entitled to
      disability benefits, a five-step analysis is employed. First, the
      claimant must not be presently working at any substantial gainful
      activity. Second, the claimant must have an impairment or
      combination of impairments that are severe. An impairment or
      combination of impairments is “severe” if it “significantly limits [a
      claimant’s] physical or mental ability to do basic work activities.”
      Third, the claimant’s impairment must meet or equal an
      impairment listed in the appendix to the regulations. Fourth, the
      impairment must prevent the claimant from returning to his past
      relevant work. Fifth, the impairment must prevent the claimant
      from doing any relevant work, considering the claimant’s residual
      functional capacity, age, education, and past work experience. At
      steps one through four, the burden of proof rests upon the claimant
      to show he is disabled. If the claimant acquits this responsibility,
      at step five the burden shifts to the Commissioner to show that
      there is other gainful employment the claimant is capable of
      performing in spite of his existing impairments.               If the
      Commissioner meets this burden, the claimant must then prove he
      in fact cannot perform the alternate work.

Id. at 197–98 (internal footnotes omitted). In relevant part, the ALJ found that
Ms. Pineda is not presently working at any substantial gainful activity, she has


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a combination of impairments that are severe, these impairments do not meet
or equal the listed impairments, she has no past relevant work activity, and she
retains the residual functional capacity (RFC) to perform light exertional work,
with the additional restrictions of no more than occasional bending, stooping,
crouching, kneeling, and crawling; with no frequent, repetitive gross right arm
movements.      Most importantly, the ALJ found that given her RFC, age,
education, and past work experience, Ms. Pineda can perform other jobs existing
in significant numbers in the national economy. Based on these findings, the
ALJ determined that Ms. Pineda was not “disabled,” as defined in the Social
Security Act.
      The Commissioner’s determination that Pineda was not disabled because
she could perform available jobs must be affirmed unless that determination is
either not supported by substantial evidence or involved an erroneous
application of legal standards. Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000).
      Pineda maintains that the ALJ’s determination of her RFC was not
supported by substantial evidence and that the ALJ applied incorrect legal
standards. Contrary to Pineda’s argument, the ALJ properly assessed her RFC
by considering all of the relevant evidence, including the opinions of examining
and non-examining physicians, as well as the combination of all of her alleged
impairments. He carefully reviewed the objective medical evidence. The ALJ
also specifically acknowledged that in making the RFC assessment he must and
did “consider all symptoms, including, pain, and the extent to which these
symptoms can reasonably be accepted as consistent with the objective medical
evidence and other evidence based on the requirements of 20 C.F.R. § 416.929
and Social Security Rule 96-7p.” In sum, the ALJ applied the proper legal
standards in determining Pineda’s RFC.

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      Specifically, Pineda argues that the ALJ failed to accord proper weight to
the opinions of treating and examining physicians. We reject this argument.
The opinion of a treating physician who is familiar with the claimant’s
impairments, treatments, and responses should be accorded great weight in
determining disability. Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). But
the treating physician’s opinions are not conclusive. Id. The ALJ has sole
responsibility for determining disability status, and “the ALJ is free to reject the
opinion of any physician when the evidence supports a contrary conclusion.” Id.
(internal quotation marks omitted). The opinions may be assigned little or no
weight when good cause is shown. Good cause may permit discounting the
weight of a treating physician relative to other experts where the treating
physician’s evidence is conclusory, is unsupported by medically acceptable
clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the
evidence. Id. at 455–56. A treating physician’s opinion can also be rebutted
when there is competing first-hand medical evidence, or if there is other medical
evidence from physicians who have treated or examined the claimant and have
specific medical bases for a contrary opinion. See id. at 458.
      Here, as the ALJ properly noted, the record does not contain any specific
opinions from treating or examining physicians, based on objective evidence,
indicating that Ms. Pineda has limitations greater than those determined by the
ALJ. To the extent that the isolated opinions of various physicians and experts
are in tension with one another, the ALJ was justified in accepting the testimony
and findings of some over others. For example, Ms. Pineda says that the ALJ’s
findings with respect to her RFC did not sufficiently account for the severity of
her cervical spine impairment, as it was described by particular treating


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physicians. But in 2002 an examining physician, Dr. Misra, provided a clinic
impression of Pineda’s medical condition that revealed little more than a cervical
strain, with her extremity strength and reflexes normal. In 2004, Dr. Misra
found that although there was tenderness in the cervical spine, Pineda’s motor
strength and deep tendon reflexes were normal. Notably, Dr. Jones, the
consultative examiner, also opined in 2004 that Pineda had full motion of the
cervical spine and that she was capable of medium level work activity. See
Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (holding that in certain
circumstances the ALJ can choose the opinion of a consultant who examined the
claimant over the opinion of a treating physician). Finally, Dr. Cox, a testifying
medical expert, said that although an MRI indicated that Pineda was subject to
mild to moderate disc herniation in the cervical spine and mild degenerative
changes in the lumbar spine, she was capable of performing light work activity.
      Pineda argues that the ALJ’s determinations with respect to her neck,
shoulder, back, and knee impairments also were not supported by substantial
evidence. For example, she says that the ALJ did not properly address her knee
and lower back impairments. But this assertion is not supported by the record.
Dr. Singh, who examined the claimant in 2002, noted that back pain complained
of earlier had improved by December 2002. Neither Dr. Singh nor Dr. Misra
suggested that any problem with the plaintiff’s lower back or her knee was a
severe impairment. Dr. Jones stated that plaintiff had mild bilateral knee varus
but indicated that this did not preclude her from kneeling frequently and, in
fact, the ALJ imposed a limitation of only occasional kneeling. Dr. Jones noted
markedly increased lumbar lardosis, yet he found that she could work at the
medium exertional level. When considering the record as a whole, there was


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substantial evidence to support all of the ALJ’s findings and his determination
of Pineda’s RFC.
      Pineda also argues that the ALJ’s decision that she can perform work
existing in significant numbers in the national economy is not support by
substantial evidence. In response to a hypothetical question posed by the ALJ
that correctly incorporated Pineda’s RFC, age, education, and past work
experience, a vocational expert testified that Pineda could work as a hand
packer, office cleaner, or laundry folder. Based on the evidence in record and the
vocational expert’s testimony, the ALJ determined that there were jobs for
Pineda in the national economy. Pineda argues that the ALJ erred because
some of the jobs the vocational expert said she could perform are described in the
Dictionary of Occupational Title (DOT) as having exertional requirements that
exceed her capabilities.
      Substantial evidence supported the ALJ determination that Pineda could
perform jobs that exist in significant numbers in the national economy. As an
initial matter, we note that an ALJ utilizes vocational experts because of their
knowledge of job requirements and working conditions. Vaughan v. Shalala, 58
F.3d 129, 132 (5th Cir. 1995). Here, the ALJ correctly described Pineda’s
limitations to the vocational expert, so we should accord weight to his testimony
delineating jobs that met Pineda’s exertional and other capabilities. Pineda
argues that there is not substantial evidence for the ALJ’s determination
because at least some of the jobs that roughly correspond to those identified by
the vocational expert are described in the DOT as exceeding her exertional level.
But these supposed conflicts do not create reversible error here. The record as
a whole supports the ALJ’s determinations. Moreover, claimants cannot scan
the record for implied conflicts between the specific testimony of an expert

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witness and the voluminous provisions of the DOT and then present these
apparent conflicts as reversible error, at least when as here the claimant’s
counsel did not explore the supposed conflicts when cross-examining the
vocational expert. See Carey, 230 F.3d at 146–47.
      Finally, we reject Pineda’s argument that the ALJ’s determination that
her testimony was not credible was not based on the proper legal standard. In
judging the claimant’s credibility, the ALJ can consider such things as medical
reports, the claimant’s daily activities, and the medications the claimant is
taking. Griego v. Sullivan, 940 F.2d 942, 945 (5th Cir. 1991). The ALJ must
weight the objective medical evidence and assign articulated reasons for
discrediting the claimant’s subjective complaints. Falco v. Shalala, 27 F.3d 160,
163 (5th Cir. 1994). But it is not required that the ALJ follow formalistic rules
in evaluating credibility. Id. at 164. Here, the ALJ evaluated the intensity and
persistence of Pineda’s alleged symptoms.        His decision reflects that he
considered all of the relevant factors as delineated in the case law and
regulations. There is more than substantial evidence in the record to support
the ALJ’s determination to accord limited weight to Pineda’s complaints of
disabling plain.


AFFIRMED.




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