                                                           United States Court of Appeals
                                                                    Fifth Circuit
                                                                 F I L E D
                  IN THE UNITED STATES COURT OF APPEALS
                          FOR THE FIFTH CIRCUIT                   June 26, 2003

                                                             Charles R. Fulbruge III
                                                                     Clerk
                               No. 02-51172
                             Summary Calendar



       CARROLL VYBIRAL,

                                              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
                           USDC No. W-01-CV-355



Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

       Carroll    Vybiral   appeals   the   district   court’s    decision

affirming the determination by the Commissioner of Social Security

that she is not disabled within the meaning of the Social Security

Act.       She avers that the administrative law judge erred in (1)

finding that she was not disabled and that she retained the

residual functional capacity for medium work; (2) affording Dr.


       *
      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opinion should not be published and is not precedent except under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.
Ramiro A. Pena’s opinion that she could only work for four hours a

day little to no weight; (3) giving greater weight to the opinions

of state agency employees; (4) failing to properly assess her

credibility; and (5) failing to call a medical expert.              Vybiral

also contends that the hypothetical posed to the vocational expert

was defective. Lastly, Vybiral, relying on Watson v. Barnhart, 288

F.3d 212 (5th Cir. 2002), avers that the case should be remanded

because the administrative law judge failed to make any finding

that she is able to maintain employment.

     Having reviewed the record and briefs on appeal, we conclude

that the administrative law judge determined that the objective

medical   evidence   indicated   that   Vybiral   suffered   from   severe

impairments, but the evidence did not support a finding that she

had an impairment or combination of impairments listed in 20 C.F.R.

Pt. 404, Subpt. P, App. 1, Regulation No. 4.         The administrative

law judge applied the correct legal standard in determining whether

Vybiral was disabled, and the administrative law judge’s decision

is supported by substantial evidence.        See Newton v. Apfel, 209

F.3d 448, 459 (5th Cir. 2000).

     Vybiral alleges that the administrative law judge gave too

little weight to Dr. Pena’s opinion.       An administrative law judge

is free to reject the opinion of any physician when the evidence

supports a contrary conclusion and may give little or no weight to

a treating physician’s opinion if good cause is shown.         Greenspan


                                   2
v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).                          An administrative

law   judge   may        “disreg[ard]           statements      that    are    brief    and

conclusory,       not        supported     by       medically    acceptable      clinical

laboratory diagnostic techniques, or otherwise unsupported by the

evidence.”    Newton at 456.

      In Newton, this court held that before declining to give a

treating physician’s opinion controlling weight, the administrative

law judge must consider the criteria set forth in 20 C.F.R. §

404.1527(d)(2).              Id.   at    456.        Those   factors     are   length    of

treatment, frequency of examination, nature and extent of the

treatment relationship, support of opinion afforded by medical

evidence, consistency of opinion with the record as a whole, and

specialization          of     the      treating      physician.         Id.     If     the

administrative law judge determines that the treating physician’s

records     are     inconclusive             or       otherwise        inadequate,      the

administrative law judge should seek clarification or additional

evidence from the treating physician in accordance with 20 C.F.R.

§ 404.1512(e).      Newton, 209 F.3d at 453, 357-58.

      The   administrative           law    judge      specifically      considered     the

Newton factors.          The judge noted that Dr. Pena only saw Vybiral

twice and there was no indication in the medical records as to the

type of examinations he performed.                    The judge also observed that

Dr. Pena was a surgeon but that he did not recommend surgery.                           The

judge further concluded that Pena’s opinion that Vybiral was only


                                                3
capable of working four hours was inconsistent with the record as

a whole.    The judge finally noted that he had sought clarification

from Pena but received no response.

     Although a letter from Pena to the administrative law judge

dated September 18, 2000, is part of the administrative record and

predates the judge’s decision, Vybiral does not allege on appeal

that the existence or the contents of this letter call into

question the judge’s decision.            Indeed, Vybiral does not even

mention this letter at all on appeal.             Even if the letter is

considered, including Pena’s claim therein that he saw Vybiral five

times in his office, it does not specify what examinations were

performed and the dates on which they occurred.             Moreover, even

taking   into   account   the   contents    of   the   letter,   substantial

evidence, including the conclusions of other doctors, x-rays, and

Vybiral’s own statements about the many physical activities she

performed, supports the judge’s conclusion that the record as a

whole is inconsistent with Pena’s conclusion that Vybiral could

only work for four hours a day.          Under all the circumstances, any

error in the administrative law judge’s failure to mention the

September 18 letter is not such as to warrant reversal.

     Vybiral’s contention that the judge gave too much weight to

the opinions of the state agency medical consultants is without

merit.     The judge considered the opinions of numerous physicians

and there is no indication that undue weight was accorded to the



                                     4
opinions   of   state   agency   medical   consultants,   or   that   those

consultants were in any way unreliable.

     Vybiral’s claims that the administrative law judge failed to

properly assess her credibility and call a medical expert and that

the hypothetical posed to the vocational expert was defective are

conclusional. Brinkmann v. Dallas County Deputy Sheriff Abner, 813

F.2d 744, 748 (5th Cir. 1987).

     Vybiral did not raise the Watson issue below, and counsel has

not established “exceptional circumstances” for the failure to

raise this issue below.     Kinash v. Callahan, 129 F.3d 736, 738 n.10

(5th Cir. 1997).        Therefore, we decline to review this issue.

Chambliss v. Massanari, 269 F.3d 520, 523 (5th Cir. 2001).              The

judgment of the district court is

                                 AFFIRMED.




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