               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                             No. 99-50949
                          (Summary Calendar)



BARBARA LANDFRIED,

                                          Plaintiff-Appellant,

versus

KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,

                                          Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                          (98-CV-729-SS)
                       --------------------
                           May 24, 2000

Before POLITZ, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Plaintiff-Appellant Barbara Lynn Landfried has appealed the

magistrate judge's judgment affirming the Commissioner's decision

denying her applications for disability insurance benefits and

Supplemental Security Income ("SSI").    In reviewing such denials,

we must determine whether substantial record evidence supports the

Commissioner and whether the proper legal standards were used in

evaluating the evidence.    Villa v. Sullivan, 895 F.2d 1019, 1021

(5th Cir. 1990).     Substantial evidence is more than a scintilla,

but less than a preponderance; it is such relevant evidence as a


     *
       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this opinion should not be published and is not precedent except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.
reasonable mind might accept as adequate to support a conclusion.

Id. at 1021-22.       In applying this standard, we may not reweigh the

evidence or try the issues de novo but must review the entire

record to determine whether substantial evidence exists to support

the Commissioner’s findings.         Id. at 1022.

     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 twelve months.”

42 U.S.C. § 423(d)(1)(A).            The Commissioner determined that,

although Landfried was unable to perform her past relevant work as

a medical assistant and child-care worker, she could perform other

work.      See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991)

(explaining sequential analysis); 20 C.F.R. §§ 404.1520, 416.920.

Two administrative hearings were held.                 After the first, the

administrative law judge ("ALJ") determined that Landfried was

capable of sedentary work.           That decision was vacated by the

Appeals Council and the case was remanded to a different ALJ for

consideration     of    evidence   related   to    a    recommended    surgical

procedure and to determine the extent of Landfried's limitations

related to her psychological depression. The second ALJ determined

that Landfried was capable of a modified range of light work.               For

the first time, Landfried argues in this appeal that the Appeals

Council's remand was limited to consideration of evidence related

to   the    surgery    and   to    consideration       of   her   psychological


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limitations. Landfried argues that the second ALJ was bound by the

first ALJ's finding that Landfried was limited to sedentary work

and that the second ALJ exceeded the scope of the remand in

determining that Landfried could perform a modified range of light

work.

      The regulations governing the administrative and judicial

review process for Social Security determinations are contained in

20 C.F.R. §§ 404.900 and 416.1400.               Those regulations require a

Social Security claimant to exhaust administrative remedies before

the     claimant     may    seek    judicial    review   in     federal    court.

§ 404.900(a) & (b); § 416.1400(a) & (b).                     The administrative

exhaustion requirement is jurisdictional. Paul v. Shalala, 29 F.3d

208, 210-11 (5th Cir. 1994); Muse v. Sullivan, 925 F.2d 785, 791

(5th Cir. 1987); Harper v. Bowen, 813 F.2d 737, 739, 743 (5th Cir.

1987).    If the claimant fails to raise a particular issue in the

Appeals Council, the federal courts do not have jurisdiction to

review the claim.          Paul, 29 F.3d at 210.

      We may review the decision if the "claim of error is 'an

expansion of the general rationale proffered in support of the

appeal' to the Appeals Council."             McQueen v. Apfel, 168 F.3d 152,

155 (5th Cir. 1999) (quoting Paul, 29 F.3d at 210).                We may waive

the     exhaustion     requirement      if     the   claim    at   issue   is   a

constitutional challenge collateral to a substantive claim of

entitlement to benefits.           Bowen v. City of New York, 476 U.S. 467,

83-85 (1986).      Neither of these circumstances are present in the

instant case.        Even if we were to assume that a constitutional


                                         3
argument is raised, we could not consider it:         Issues raised for

the first time in this court in a Social Security case are not

considered.      See Chaparro v. Bowen, 815 F.2d 1008, 1011 (5th Cir.

1987); James v. Bowen, 793 F.2d 702, 704 (5th Cir. 1986).

     Landfried argues that the discrepancy between the two ALJ

decisions with respect to her residual functional capacity shows

that the Commissioner's determination that she was capable of

performing a limited range of light work is not supported by

substantial evidence.      This argument is without merit.      A finding

that Landfried has the residual functional capacity for sedentary

work is not tantamount to a finding that Landfried does not have

the residual functional capacity for a modified range of light

work.     See Houston v. Sullivan, 895 F.2d 1012, 1015-16 (5th Cir.

1989).

     Landfried contends that the Commissioner erred in finding that

her psychological impairment was not severe and constituted only a

minimal limitation on her ability to perform work activities.

Landfried argues that the ALJ's finding is "contrary to the great

weight of the evidence,"      but she misstates the standard.        Again,

we must affirm the Commissioner's finding when it is supported by

substantial evidence.      See Villa, 895 F.2d at 1021.

     "An impairment can be considered as not severe only if it is

a slight abnormality having such minimal effect on the individual

that it would not be expected to interfere with the individual's

ability     to   work,   irrespective   of   age,   education   or    work

experience." Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985)


                                    4
(internal quotation marks and brackets omitted).            In determining

that Landfried's mental condition was not severe, the ALJ applied

the Stone standard.       The ALJ noted the "absence of evidence of

sustained     treatment   for   depression     or    that   depression    has

interfered with activities of daily living, social functioning, or

mental functioning for sustained periods." Landfried made only two

visits   to    a   therapist    for   psychological     reasons,    and   the

consultative examiner concluded that Landfried's work capacity

would be limited only during stressful periods. The Commissioner's

finding that Landfried's depression was not severe is supported by

substantial evidence.

     Landfried also contends that the ALJ should have obtained the

testimony of a mental health expert.                As this issue was not

presented to the Appeals Council, it has not been exhausted so we

have no jurisdiction to consider it.         See Paul, 29 F.3d at 210-11.

Moreover, Landfried does not state what additional information

would have been gleaned from such testimony.           See Kane v. Heckler,

731 F.2d 1216, 1220 (1984).

     Landfried asserts additionally that the ALJ's finding that she

is capable of a modified range of light work is not supported by an

explicit evaluation linking the finding with objective evidence.

"Light work" is defined as requiring the ability to lift no more

than 20 pounds and up to 10 pounds frequently."                    20 C.F.R.

§§ 416.967(b) & 404.1567(b). "Even though the weight lifted may be

very little, a job is in this category when it requires a good deal

of walking or standing, or when it involves sitting most of the


                                      5
time with some pushing and pulling of arm or leg controls."

§§ 404.1567(b); 416.967(b).

     The ALJ found that Landfried's combination of impairments, at

all times relevant to her decision:

     allowed lifting up to 20 pounds occasionally and
     intermittently; lifting up to ten pounds frequently;
     pushing and pulling weights commensurate with lifting;
     standing/walking two of eight work day hours; sitting six
     of eight work day hours; occasional and intermittent ramp
     and stair climbing; occasional and intermittent bending,
     stooping, kneeling, and crouching; and no climbing
     ladders, ropes or scaffolds.

Landfried's non-severe mental depression limited her to work that

did not require more than a "good" ability or "satisfactory"

ability to deal with work stresses and to behave in an emotionally

stable manner.     Based on these findings, the ALJ determined that

Landfried had a residual functional capacity for a modified range

of light work.     The reports of Drs. Dorsen, Ross, Cain, and Taylor

provide ample support for this conclusion.

     Landfried argues that the Commissioner failed to consider

adequately   her   subjective   complaints   of   pain   and    depression.

“[P]ain may constitute a non-exertional impairment that limits the

range of jobs a claimant otherwise would be able to perform.”

Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).           As pain alone

can be disabling, the ALJ must give consideration to the claimant’s

subjective complaints of pain; and the ALJ has a duty to make

affirmative findings regarding the credibility of the claimant’s

assertions regarding pain.      See Scharlow v. Schweiker, 655 F.2d

645, 648-49 (5th Cir. 1981) (reversing decision of Commissioner

because ALJ failed to rule on credibility of claimant’s subjective

                                   6
complaints of pain).   The Commissioner has discretion to determine

the disabling nature of the claimant’s pain. Wren v. Sullivan, 925

F.2d 123, 128 (5th Cir. 1991).            Pain constitutes a disabling

condition only when it is “constant, unremitting, and wholly

unresponsive to therapeutic treatment.”         Falco v. Shalala, 27 F.3d

160, 163 (5th Cir. 1994) (internal quotation marks omitted).

“There must be clinical or laboratory diagnostic techniques which

show the existence of a medical impairment which could reasonably

be expected to produce the pain alleged.” Selders v. Sullivan, 914

F.2d 614, 618 (5th Cir. 1990).

     Because the medical records did not substantiate Landfried's

subjective   complaints,    the    ALJ   was   required    to    evaluate   the

intensity,   persistence,    and    limiting     effects    of    Landfried's

symptoms to determine whether and how much Landfried's symptoms

limited her ability to work.       SSR 96-7p, 1996 WL 374186, *1.           This

inquiry requires a determination whether Landfried's subjective

complaints were credible.     Id.

     In determining the credibility of the individual's
     statements, the adjudicator must consider the entire case
     record, including the objective medical evidence, the
     individual's own statements about symptoms, statements
     and other information provided by treating or examining
     physicians or psychologists and other persons about the
     symptoms and how they affect the individual, and any
     other relevant evidence in the case record.

SSR 96-7p, 1996 WL 374186, *1.

     The ALJ's determinations of the weight and credibility of the

evidence "are entitled [to] considerable deference."                 Jones v.

Bowen, 829 F.2d 524, 527 (5th Cir. 1987).         "While it is clear that

the ALJ must consider subjective evidence of pain, it is within his

                                     7
discretion to determine its debilitating nature."              Id. (citations

omitted).

     In considering the extent to which Landfried's subjective

symptoms of chronic back pain, stress, anxiety, and memory problems

reduced     Landfried's     residual       functional     capacity,    the    ALJ

concluded:

     While some of the symptoms reported reasonably derive
     from medically determinable impairments evidenced in the
     record,   the   intensity,  duration,   and   functional
     limitations alleged by the claimant are not fully
     credible and are not supported in the clinical records,
     evidence of daily functioning, and evidence of symptom
     management without prescribed medications.

In reaching this conclusion, the ALJ summarized the clinical

findings of Drs. Dorsen, Ross, Cain, and Taylor, with respect to

Landfried's back condition, and the clinical findings of Dr.

Hamilton,    with    respect   to   Landfried's        depression.      The   ALJ

expressly discredited the opinion of Dr. Kyte that Landfried's

condition appeared to satisfy the criteria of § 1.05C of the

Listing of Impairments.         The ALJ also considered Landfried's

testimony about the extent of her pain and limitations on her daily

activities caused by pain and depression.                The ALJ made express

findings     about    the   credibility        of     Landfried's     subjective

complaints.    Those findings were based on a review of the medical

records and Landfried's own testimony.              The ALJ thus complied with

SSR 96-7p.

     Landfried also asserts that the hypothetical question posed to

the vocational expert did not include all of her limitations,

specifically those related to depression, anxiety, and chronic


                                       8
pain.   Accordingly, Landfried argues, the Commissioner has not

proved that there are jobs in the national economy that Landfried

is able to perform.       In response to the ALJ's second hypothetical

example, stating exertional limitations that were relatively more

restrictive than Landfried's limitations, the vocational expert

stated that such a person would be able to pursue work as a

cashier, information clerk, and clerical worker.                The ALJ further

limited this example to reflect that the hypothetical worker had a

"good   ability    to    deal   with   work    stresses   and    behave   in   an

emotionally stable manner," with "good defined as limited but

satisfactory."     The vocational expert stated that such a person

would still be able to perform the three jobs listed.                     As was

previously noted, the ALJ's characterization of Landfried's pain

and   depression    as    nondisabling        is   supported    by   substantial

evidence. Landfried's argument presupposes that those findings are

not supported by substantial evidence.

      As the Commissioner's decision denying Landfried's claim for

disability benefits is supported by substantial evidence and no

violations of procedures or methodology are present, the magistrate

judge's judgment affirming the Commissioner's decision is

AFFIRMED.




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