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

                                                 FILED
                                                                            June 29, 2009

                                     No. 08-60987                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



JENNY LYNN TUCKER

                                                   Plaintiff-Appellant
v.

MICHAEL J. ASTRUE , COMMISSIONER OF SOCIAL SECURITY

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                              USDC No. 2:07-CV-4


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Jenny Lynn Tucker filed a civil action under section
205(g) of the Social Security Act (the “Act”), 42 U.S.C. § 405(g), to obtain judicial
review of the final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying Tucker’s claim for disability insurance
benefits under Title II of the Social Security Act. The district court affirmed the




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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decision of the Commissioner, and Tucker appealed.1 For the following reasons,
we AFFIRM.
                I. FACTUAL AND PROCEDURAL BACKGROUND
      Dr. Chris Mauldin treated Tucker for knee trauma on November 29, 2004,
after she hit her right knee while opening a door. He treated Tucker’s
subsequent knee effusion with medication and informed her that she could
return to her normal activity. Tucker’s subjective complaints of knee pain
persisted through January 7, 2005 despite Dr. Mauldin’s statements that he
successfully treated her knee in November 2004. Dr. Mauldin suggested ongoing
conservative treatment with medication and moist heat after a follow-up exam
on January 7, 2005, revealed some pain around the right knee joint with
minimal effusion.
      Tucker also complained of neck discomfort near the end of 2004, and an
MRI on December 20, 2004 revealed a left lateral disc protrusion at C5-6 and
C6-7. Tucker’s continued complaints of neck pain prompted a bone scan on
January 20, 2005, but the scan yielded normal results. Dr. Aremmia Tanious,
who had treated Tucker twice since December 14, 2004, opined on January 24,
2005 that Tucker’s degenerative cervical spine disease, migraine headaches, and
depression rendered her “totally disabled” and “unable to perform any job at this
point.” By February 2005, Tucker’s subjective pain complaints persisted, and
now included allegations of pain in her neck, upper back, and shoulders, as well
as fatigue. This prompted Dr. Tanious to cite fibromyalgia as the possible cause
of Tucker’s diffuse nonspecific pain.
      On February 22, 2005, Dr. Tanious requested that Tucker be excused from
jury duty due to fibromyalgia.            On June 13, 2005, Tucker underwent a
comprehensive mental status examination by Dr. Joanna McCraney . During



      1
          This court has jurisdiction pursuant to 28 U.S.C. § 1291.

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this evaluation Tucker cited her physical problems as the only reason she is
unable to work. Tucker explained her ability to conduct activities of daily living
including cooking and other chores, but noted a need to spend much of the day
in a recliner to relieve her back pain. Specifically, Tucker noted that she drives,
shops, and prepares meals. Tucker also referenced limited social activities. Dr.
McCraney diagnosed Tucker with depression, but concluded that she did not
appear unable to work from a mental standpoint.
      Dr. Tanious again examined Tucker for complaints of shoulder, arm, and
leg pain on December 12, 2005. Despite Tucker’s relatively normal physical
examination, Dr. Tanious once again opined that she was “not able to perform
any type of job.” On December 29, 2005, Dr. Tanious completed a formal
“Medical Assessment of Ability to do Work-Related Activities (Physical)” form.
Dr. Tanious explained that Tucker’s lifting and carrying were not affected by her
impairments, but nevertheless limited her to 5 pounds carrying both frequently
and occasionally. Dr. Tanious then noted that Tucker was limited to 4 hours
standing/walking in an eight hour day with interruptions every 1 hour, and
suffered from no limitation to her ability to sit. Dr. Tanious further opined that
Tucker could only occasionally climb, balance, stoop, crouch, kneel, and crawl.
      Tucker applied for disability insurance benefits under Title II of the Social
Security Act on February 15, 2005, alleging disability beginning January 27,
2005. Her claim was denied initially on July 1, 2005 and upon reconsideration
on July 26, 2005. On July 29, 2005, Tucker filed a timely request for a hearing
before an Administrative Law Judge (“ALJ”).         The ALJ held a hearing in
Hattiesburg, Mississippi, on January 4, 2006, at which she took testimony from
Tucker and vocational expert Ronald K. Smith (“Smith”) and evaluated the
opinions of medical experts, including Dr. Tanious. The ALJ issued an
unfavorable decision on June 27, 2006, finding that Tucker was “not disabled”
because she retained the residual functional capacity (“RFC”) to perform a full

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range of sedentary work as of her date last insured for benefits. This decision
became the Commissioner’s final decision after the Appeals Council denied
Tucker’s subsequent request for review on November 6, 2006. Tucker then filed
a complaint in the United States District Court for the Southern District of
Mississippi, Hattiesburg Division, seeking judicial review of the Commissioner’s
decision denying her disability application. Tucker and the Commissioner each
filed district court briefs, and a magistrate judge issued a report and
recommendation on February 15, 2008, affirming the decision of the
Commissioner. Tucker did not file any objection. The district court issued an
order adopting the magistrate’s report and recommendation on August 5, 2008,
and a final judgment affirming the Commissioner’s decision on August 8, 2008.
                    II. APPLICABLE LEGAL STANDARDS
      The Commissioner’s decision is reviewed by this court only to ascertain
whether (1) the decision is supported by substantial evidence and (2) whether
the Commissioner used the proper legal standards to evaluate the evidence.
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Substantial evidence is that
which a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but
less than a preponderance. Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988).
This court does not reweigh the evidence in the record, try the issues de novo, or
substitute its judgment for the Commissioner’s, even if the evidence weighs
against the Commissioner’s decision. See Newton, 209 F.3d at 452. Conflicts in
the evidence are for the Commissioner and not the courts to resolve. Id. The
ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision,
as adopted by the Appeals Council. Id. at 455.
      The claimant has the burden of proving she has a medically determinable
physical or mental impairment lasting at least twelve months that prevents her
from engaging in substantial gainful activity. Newton, 209 F.3d at 452 (citing

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42 U.S.C. § 423(d)(1)(A)). Substantial gainful activity is defined as work activity
involving significant physical or mental abilities for pay or profit. Id. at 452–53
(citing 20 C.F.R. § 404.1572(a) and (b)).
      The ALJ uses a five-step sequential process to evaluate claims of disability
in which he must determine whether: (1) the claimant is not working in
substantial gainful activity; (2) the claimant has a severe impairment; (3) the
claimant’s impairment meets or equals a listed impairment; (4) the impairment
prevents the claimant from doing past relevant work; and (5) the impairment
prevents the claimant from doing any other work. Id. at 453 (citing 20 C.F.R. §
404.1520). The claimant bears the burden of proof on the first four steps, and
the burden shifts to the Commissioner for the fifth step. Thus, the claimant
must show first that she is no longer capable of performing her past relevant
work. Id. (citing 20 C.F.R. § 404.1520(e)). If the claimant satisfies this burden,
then the Commissioner must show that the claimant is capable of engaging in
some type of alternative work that exists in the national economy. Id. (citing
Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987)).                Once the
Commissioner makes this showing, the burden of proof shifts back to the
claimant to rebut this finding. Id. (citing Chaparro, 815 F.2d at 1010). A finding
that the claimant is not disabled at any step is conclusive and ends the inquiry.
Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (citing Greenspan v.
Shalala, 38 F.3d 232, 235 (5th Cir. 1994)).
                      III. THE DECISION OF THE ALJ
      Applying step one of the five step inquiry to Tucker’s claim for disability,
the ALJ found that Tucker had not engaged in any substantial gainful activity
at any relevant time. At step two, the ALJ found that Tucker suffered from the
following “severe” impairments: fibromyalgia and arthritis of the knee. At step
three, however, the ALJ determined that none of Tucker’s impairments, or a
combination thereof, met or medically equaled any impairment in the Listing of

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Impairments found in 20 C.F.R. 404, subpart P, Regulation 4, Appendix 1. At
step four, the ALJ found that Tucker’s RFC precluded performance of her past
relevant work, but at step five, the ALJ concluded that Medical-Vocational rule
201.21 directed a finding of “not disabled” given Tucker’s age, education, work
experience, and RFC. In assessing Tucker’s RFC, the ALJ found that Tucker
retained the RFC to perform a full range of sedentary work and that her
statements concerning the intensity, duration, and limiting effects of her
symptoms were not entirely credible.       The ALJ acknowledged that “[t]he
objective medical evidence clearly show[ed] that the claimant has impairments
which could reasonably be expected to cause mild to moderate pain and
limitations which would clearly restrict her to no more than sedentary level of
activity.” However, the ALJ found Dr. Tanious’ conclusion that Tucker was
unable to perform any type of job to be inconsistent with other medical evidence
as well as Tanious’ own records. Furthermore, the ALJ noted that Tucker’s own
testimony regarding her limitations were consistent with a sedentary level of
activity, and that her impairments were not shown to be “so severe as to prevent
the claimant from being present and attentive in a normal job setting requiring
no more than sedentary work.” Therefore, the ALJ found that Tucker was not
disabled as defined under the Act.
                                IV. ANALYSIS
      Tucker contends that substantial evidence does not support the ALJ’s
finding that she retains the RFC for sedentary work because (1) Dr. Tanious
stated that she is “disabled” and “unable to work” and (2) Dr. Tanious’
description of her actual functional limitations, specifically the 5-pound weight
limitation, do not lead to the conclusion that she can perform sedentary work.
        In the first instance, it appears that Tucker has waived both of these
arguments by failing to raise them in the district court. Keenan v. Tejada, 290
F.3d 252, 262 (5th Cir. 2002) (“If a party fails to assert a legal reason why

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summary judgment should not be granted, that ground is waived and cannot be
considered or raised on appeal”).      Although Tucker challenged the ALJ’s
assessment of her RFC in the district court proceeding, she did not specifically
assert either of the challenges presented here. Specifically, Tucker failed to
argue that the 5-pound lifting and carrying restriction Dr. Tanious assessed is
inconsistent with a sedentary RFC. She also failed to argue that the ALJ failed
to properly weigh Dr. Tanious’ medical source statements that she is “totally
disabled” and “unable to perform any job at this point,” in a manner sufficient
to satisfy the requirements of 20 C.F.R. § 404.1527(d). Because Tucker failed to
raise these arguments in the district court, they have been waived. Keelan v.
Majesco Software, Inc., 407 F.3d 332, 340 (5th Cir. 2005) (noting that a party
“must press and not merely intimate the argument during the proceedings
before the district court.”).
      Even if Tucker’s arguments were properly before this court, they would not
present a successful challenge to the decision of the ALJ.            The ALJ’s
determination that Tucker is not disabled is supported by substantial evidence
in the record.    Tucker first argues that the 5-pound lifting and carrying
restriction Dr. Tanious assessed is not consistent with the ALJ’s finding that
Tucker can perform the full range of sedentary work.           According to the
applicable regulations, the performance of the full range of sedentary work
requires the ability to lift and carry a maximum of 10 pounds occasionally. 20
CFR 404.1567(a). Although the 5-pound restriction does not support the ALJ’s
conclusion that Tucker can perform the full range of sedentary work, the ALJ
based his RFC assessment on the entire medical record, including Tucker’s office
visits at various clinics and multiple tests and treatments, and not solely on the
specific functional limitations specified by Dr. Tanious.        The ALJ, after
reviewing and weighing the entire medical record in detail, concluded that the
evidence only established that Tucker “has impairments which could reasonably

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be expected to cause mild to moderate pain and limitations which would clearly
restrict her to no more than a sedentary level of activity.” In addition, even if
the ALJ had credited the weight restriction expressed by Dr, Tanious, it would
likely not have affected the ALJ’s ultimate conclusion that Tucker was not
disabled under the Act. It is uncontested that the vocational expert testified
that “there are some sedentary jobs that don’t involve lifting more than five
pounds at a time” that an individual of the age, education, work history, and
RFC described by Dr. Tanious could perform. See Ripley v. Chater, 67 F.3d 522,
557 (5th Cir. 1996) (noting that “[r]eversal of [the ALJ’s] decision . . . is
appropriate only if the applicant shows that he was prejudiced.”).
      Furthermore, even if Tucker’s second argument was not waived, the ALJ
did not err in failing to credit Dr. Tanious’ ultimate conclusions that Tucker is
“totally disabled” and “unable to perform any job at this point.” The regulations
defining “medical opinions” specifically state that conclusory statements such as
those made br Dr. Tanious are “not medical opinions as described in paragraph
(a)(2) of [20 C.F.R. § 404.1527], but are, instead, opinions on issues reserved to
the Commissioner because they are administrative findings that are dispositive
of a case,” and are not entitled to any special significance or treatment under the
regulations. 20 C.F.R. § 404.1527(e), (e)(3). A determination by a treating
physician that an applicant is “disabled” or “unable to work” is not a medical
opinion entitled to deference, but rather a legal conclusion “reserved to the
Commissioner.” Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003). Thus,
the ALJ did not err in failing to credit Dr. Tanious’ conclusions that Tucker is
“totally disabled” and “unable to perform any job.”
                               V. CONCLUSION
      Tucker waived her arguments by failing to raise them in the district court.
Even if Tucker had properly preserved her arguments, they would not to present



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a sufficient challenge to the decision of the ALJ. Therefore, the judgment of the
district court is AFFIRMED.




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