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

                                                 FILED
                                                                           August 4, 2009

                                       No. 08-60901                    Charles R. Fulbruge III
                                                                               Clerk

VANESSA M QUALLS

                                                   Plaintiff - Appellant
v.

MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                   Defendant - Appellee




                   Appeal from the United States District Court
                     for the Northern District of Mississippi
                             USDC No. 1:05-CV-242


Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.
PER CURIAM:*
       Vanessa M. Qualls appeals the district court’s decision affirming the
Administrative Law Judge’s determination that she is not disabled and is
therefore ineligible for Social Security disability benefits. For the following
reasons, we affirm.
                           FACTS AND PROCEEDINGS
A.     Procedural History



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                 No. 08-60901

      Vanessa M. Qualls (“Qualls”) filed an application for disability on July 19,
2001, alleging a disability onset date of December 15, 2000. She represented
that she was no longer able to work due to Sjogren’s Syndrome, headaches,
arthritis, pain in her neck and lower back, and the placement of metal rods in
her femur bones. Five doctors treated Qualls for varying periods of time. Two
others reviewed her case on a consultative basis. This appeal centers around the
different diagnostic assessments of these doctors.
      Qualls’s disability application was denied by the Social Security
Administration’s (“SSA”). She sought reconsideration and her application was
again denied. Subsequently, Qualls applied for review from an Administrative
Law Judge (“ALJ”) who determined that she was not disabled. The Appeals
Council denied her request for review.      Qualls then filed suit against the
Commissioner of the SSA (“Commissioner”) in federal court seeking to overturn
the ALJ’s disability determination. Among the twelve points of error raised by
Qualls—all of which were found to be without merit—the district court
determined that the ALJ did not err in declining to give Qualls’s treating
physician’s opinion controlling weight and committed harmless error in stating
that surgery had eliminated a defect in her back. Qualls timely appealed,
raising these two grounds of error.
B.    Medical History
      While Qualls claimed a disability onset date of December 2000, her
relevant medical history began prior to this date and involved seven physicians.
      Prior to 2000, Dr. Dwight Johnson (“Johnson”) provided treatment to
Qualls. In 1988, she was involved in a car accident. Her injuries included two
broken femurs which required surgery to repair and rods were installed in her
legs. Qualls complained of pain from the accident, particularly in her thighs and
lower back. She was in a second car accident in the 1990s. In 1994, a lesion was
removed from her lip. The pathology report noted findings consistent with an

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early or mild involvement with Sjogren’s Syndrome. Qualls was never diagnosed
with Sjogren’s Syndrome and did not receive treatment for it.
      Dr. Patrick Tucker (“Tucker”) treated Qualls between June 2000 and
November 2001. During her visits, she complained of vertigo, headache, and leg
pain. Dr. Tucker prescribed muscle relaxers and pain pills, referring Qualls to
Dr. Victor Gray (“Gray”) for her leg pain.
      Dr. Gray examined Qualls and provided care from March to November
2001. His medical notes indicate that Qualls complained of back pain. Dr. Gray
performed a variety of x-rays and MRI’s of Qualls’s lumbar spine. He found a
mild central disc protrusion and ordered epidural pain injections.        Qualls
continued to report back pain throughout this period but Dr. Gray found that she
was resting “fine” with medication.
      In August 2001, Qualls began treatment under Dr. Ken Staggs (“Staggs”).
Qualls remained under his care until December 2001. During this period, Qualls
reported continued back pain and Dr. Staggs ordered further epidural injections.
The pain nonetheless continued. In December 2001, during her last visit with
Dr. Staggs, Qualls was informed that the physician had found a posterior
annular tear in her spine and suggested a lumbar support orthotic.           The
following month, Qualls underwent an annuloplasty to repair the annular tear.
Surgery was not effective.
      Under the recommendation of her attorney, in November 2001, Qualls
visited Dr. Carl Welch (“Welch”). She reported leg and back pain, attributing it
to the 1988 car accident. Dr. Welch completed a Medical Source Statement, a
residual functionality assessment which sets forth, in the physician’s opinion,
the physical limitations of a Social Security benefit applicant.      Dr. Welch
asserted that Qualls suffered limitations incompatible with even sedentary work
on a full-time basis. Qualls did not receive treatment from Dr. Welch nor did she
continue under his care after this consultative visit.

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       Qualls began treatment under Dr. Michael Steuer (“Steuer”) in August
2002. She continued to report back pain and told Dr. Steuer that she had
recently suffered a fall. During her continued care under Dr. Steuer, Qualls
reported significant improvement, experienced relief with medication, and had
only moderate difficulty in performing daily activities. Dr. Steuer performed a
nerve root block and noted substantial improvement. Nevertheless, in February
2003, Dr. Steuer completed a Medical Source Statement in which he indicated
that Qualls suffered such severe physical limitations that she was unable to
perform even sedentary work.1
       In April 2003, at the ALJ’s request, Qualls was evaluated by Dr. James
Galyon (“Galyon”) on a one-time basis. Dr. Galyon completed a Medical Source
Statement in which he determined that Qualls, though hampered by physical
limitations, retained the ability to perform a range of sedentary work.
                             STANDARD OF REVIEW
       Our review of the ALJ’s disability determination “is limited to ascertaining
whether (1) the final decision is supported by substantial evidence and (2) that
proper legal standards were used to evaluate the evidence.” Brown v. Apfel, 192
F.3d 492, 496 (5th Cir. 1999) (internal quotations omitted). “If the [ALJ’s]
findings are supported by substantial evidence, they are conclusive and must be
affirmed.” Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). “Substantial
evidence is more than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Consol.
Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217 (1938).                    “In applying the
‘substantial evidence’ test, we must carefully scrutinize the record to determine



       1
         After the administrative hearing, Dr. Steuer wrote a letter indicating that the nerve
blocks Qualls had previously undergone had offered her only temporary relief but no long-term
benefits. He also stated that Qualls suffered from some component of disability and disk
disease.

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if, in fact, such evidence is present. However, we may not reweigh the evidence
in the record, nor try the issues de novo, nor substitute our judgment for that of
the [ALJ], even if the evidence preponderates against the [ALJ’s] decision.”
Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988). “Conflicts in the evidence
are for the [ALJ] and not the courts to resolve.” Selder, 914 F.2d at 617. Only
where there is a “conspicuous absence of credible choices or no contrary medical
evidence” will we find that the substantial evidence standard has not been met.
Johnson, 864 F.2d at 343–44 (internal quotations omitted).
                                 DISCUSSION
I.    The ALJ’s mistake
      Qualls argues that the district court erred in its determination that the
ALJ’s error in setting forth one of her physical ailments was harmless. The ALJ
stated that Qualls’s annular tear had been “eliminated” when, in fact, surgery
had not repaired the defect. Qualls speculates that, without this error, the ALJ
may have found her testimony credible, assessed the medical evidence in a
different light, and determined that her limitations were much more severe—so
severe as to find her disabled. The ALJ’s mistake, Qualls argues, entitles her to
reversal and a new disability determination hearing.
      “Procedural perfection in administrative proceedings is not required. This
court will not vacate a judgment unless the substantial rights of a party have
been affected.” Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988). Where the
resulting disability determination remains unchanged, even if some of the
reasoning underlying that decision is erroneous, no substantial rights have been
affected. See id. “The procedural improprieties alleged by [Qualls] will therefore
constitute a basis for remand only if such improprieties would cast into doubt the
existence of substantial evidence to support the ALJ’s decision.” Morris v.
Bowen, 864 F.2d 333, 335 (5th Cir. 1988).



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      Qualls’s attack on the ALJ’s decision is without merit. She has failed to
show that the ALJ’s disability determination would have been different if the
ALJ had not mistakenly noted that her annular tear had been repaired. A
review of the record reveals that the ALJ did not make his decision in reliance
on the determination that surgery had eliminated the defect.          In fact, the
surgery is only mentioned once in the eight page opinion—in the ALJ’s review
of Qualls’s medical history.
      Rather, in analyzing her physical limitations, the ALJ heard testimony
from Qualls, reviewed the medical records submitted, and solicited the opinion
of a vocational expert. None of these are alleged to have labored under the same
misconception with respect to Qualls’s annular tear. The effectiveness of the
annuloplasty had no impact on the ALJ’s disability determination and Qualls’s
speculation that the ALJ’s decision would have been different without this
technical error is unfounded. As the district court pointed out, despite the error,
the ALJ found that Qualls was severely impaired due to back pain. The question
was never whether Qualls suffered nor whether the annular tear had been
repaired but the extent to which this suffering affected her ability to work.
      With respect to the effect that the ALJ’s mistake may have had on the
determination that Qualls was not credible, the record reveals that the
assessment of the annular tear played no part in this analysis.          The ALJ
compared Qualls’s testimony with the physical pain she described to her doctors,
noting that while Qualls stated that she experienced daily back pain at a level
of 9 on a 10-point scale, she consistently told Dr. Steuer that her pain level was
only between 4 to 6. At the hearing, she represented that she was very limited
in her ability to perform household chores but had previously told doctors that
she performed these without much difficulty. She further testified that her pain
was only marginally alleviated by medication despite having told her treating
physicians that Oxycontin was extremely effective in controlling her pain. The

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ALJ pointed out other inconsistencies. Among these, Qualls: 1) testified that her
back impairment was the result of a 1988 car accident which severely limited
her physical abilities but continued to work for many years thereafter and
maintained an active lifestyle; 2) stated that she could only sit for twenty
minutes but her testimony was belied by the fact that she testified to having
taken a car trip to the Smokey Mountains; 3) wore an arm brace during the
hearing and claimed that it was to treat her Sjogren’s Syndrome but later
admitted that she has only begun wearing the brace a few days prior to the
hearing, no physician record substantiated the need for the brace, and she had
never been treated for Sjogren’s Syndrome; 4) engaged in ongoing pain behavior
during the hearing as well as flailing maneuvers of her arms, none of which had
ever been previously communicated to doctors or formed part of her medical
records. As is evident from the record, Qualls was discredited by inconsistencies
in her testimony, the medical record before the ALJ, and her behavior during the
hearing, not the ALJ’s mistake.
      Because the ALJ’s decision would not have been different without the
error regarding Qualls’s annular tear, was not based on the effectiveness of the
annuloplasty in any event, and did not affect Qualls’s substantial rights, the
mistake was harmless. Mays, 837 F.2d at 1364. Accordingly, Qualls is not
entitled to reversal or a new disability hearing.
II.   The treating physician’s opinion
      Qualls asserts that the district court erred in its determination that the
opinion of her treating physician, Dr. Steuer, did not meet the legal standard for
controlling weight.   She argues that Dr. Steuer’s opinion, which found her
disabled, should have been given controlling weight because she saw him
numerous times before applying for disability and he completed a Medical
Source Statement. Essentially, Qualls maintains that Dr. Steuer’s disability
determination should prevail over contrary evidence in the record and that the

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ALJ committed an error of law by failing to give his opinion controlling weight.
Qualls also argues that the ALJ gave Dr. Steuer’s opinion no weight and failed
to perform the statutory analysis required when making this decision.
      Where the ALJ rejects the opinion of the treating physician, we have held
that, “absent reliable medical evidence from a treating or examining physician
controverting the claimant’s treating specialist, an ALJ may reject the opinion
of the treating physician only if the ALJ performs a detailed analysis of the
treating physician’s views under the criteria set forth in 20 C.F.R. §
404.1527(d)(2).” Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000). Under the
statutory analysis, the ALJ must evaluate: (i) the “[l]ength of the treatment
relationship and the frequency of examination,” (ii) the “[n]ature and extent of
the treatment relationship,” (iii) the supporting evidence presented by the
physician, (iv) the level of consistency between the physician’s opinion and the
record, (v) the physician’s specialization, and (vi) any other relevant factors. 20
C.F.R. § 404.1527(d)(2)–(6).    The opinion of a treating physician “may be
assigned little or no weight when good cause is shown. Good cause may permit
an ALJ to discount 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.” Newton, 209 F.3d at 455–56 (citation
omitted); see also Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995) (in
determining whether to give a treating physician’s opinion controlling weight,
the ALJ must look to whether the opinion is “‘well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with . . . other substantial evidence’” (quoting 20 C.F.R. § 404.1527(d)(2))).
“[A]lthough the opinion of an examining physician is generally entitled to more
weight than the opinion of a non-examining physician, the ALJ is free to reject



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the opinion of any physician when the evidence supports a contrary conclusion.”
Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (quotation omitted).
       The ALJ did not follow the statutory analysis specified in Newton for
rejecting a treating physician’s opinion.2 Nevertheless, Qualls’s challenge fails
and the district court properly determined that the ALJ did not err in declining
to give Dr. Seuer’s opinion controlling weight.
       As an initial matter, the record does not support the assertion that the
ALJ completely discounted Dr. Steuer’s opinion. The ALJ only rejected parts of
Dr. Steuer’s opinion; specifically, those that did not conform to his own clinical
notes and contradicted the record. In its extensive analysis of each physician’s
opinion, the ALJ pointed out that Dr. Steuer consistently documented
improvement in Qualls’s pain but then, with no explanation of the sudden
change, opined that Qualls was so severely limited as to be unable to perform
even sedentary work. This was inconsistent with both his own clinical notes and
the opinions of the other examining physicians.
       The ALJ properly declined to give Dr. Steuer’s opinion controlling weight
and did not err by failing to perform the statutory analysis outlined in Newton.
First, Newton specifically states that the statutory steps must be followed
“absent reliable medical evidence from a treating or examining physician
controverting the claimant’s treating specialist.” 209 F.3d at 453. The ALJ was
presented with substantial evidence which contradicted Dr. Steuer’s opinion.
Qualls was seen by five treating physicians and, despite evidence that she
informed several doctors that she sought disability benefits, she obtained a
Medical Source Statement from only one—Dr. Steuer.                          From October to
December 2002, Dr. Steuer documented excellent improvement in Qualls’s


       2
         While the ALJ stated that he “weighed the medical opinions of record with
consideration of the factors set out in . . . 20 CFR 404.1527” he failed to set forth these factors
or provide an analysis of each element.

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symptoms and indicated that she had only moderate difficulty in performing the
activities of daily life. Nevertheless, the Medical Source Statement he filled out
two months later stated that Qualls was incapable of performing even sedentary
work. Nothing in Qualls’s medical record explains the sudden change and the
inconsistency between Dr. Steuer’s Medical Source Statement and his clinical
notes. On the contrary, Dr. Tucker and Dr. Staggs, Qualls’s prior physicians,
determined that her limitations were not disabling. Two other doctors, Dr.
Welch and Dr. Galyon, also completed Medical Source Statements after
examining Qualls. While Dr. Welch determined that she was so disabled as to
be unable to perform even sedentary work, Dr. Galyon disagreed. The ALJ gave
Dr. Welch’s opinion little weight, finding it to diverge from the record and
Qualls’s own claims. Dr. Welch opined that Qualls suffered from a range of
physical limitations of which Qualls had never complained and which none of
her treating physicians had ever observed. By contrast, Dr. Galyon’s opinion
was supported by the independent medical analysis of Qualls’s other treating
physicians, Dr. Tucker and Dr. Staggs, as well as Dr. Steuer’s own clinical notes.
      Second, even if we read Newton as requiring the ALJ to set forth its
analysis of the five statutory elements when declining to give controlling weight
to a treating physician, Newton does not apply. The Newton court limited its
holding to cases where the ALJ rejects the sole relevant medical opinion before
it. In Newton, “the ALJ summarily rejected the opinions of [claimant’s] treating
physician, based only on the testimony of a non-specialty medical expert who
had not examined the claimant.” 209 F.3d at 458. Newton was not a case with
“competing first-hand medical evidence” where the ALJ found “as a factual
matter that one doctor’s opinion [wa]s more well-founded than another. . . . Nor
[wa]s this a case where the ALJ weigh[ed] the treating physician’s opinion on
disability against the medical opinion of other physicians who [had] treated or
examined the claimant and [had] specific medical bases for a contrary opinion.”

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Id. The Newton court also dealt with an incomplete record. None of these
factors are present here. As previously noted, the ALJ’s decision was based on
the medical opinion of doctors who had treated and examined Qualls. These
physicians had informed, first-hand, knowledge to support their opinions.
      Because Dr. Steuer’s opinion was not “well-supported by medically
acceptable clinical and laboratory diagnostic techniques” and was “inconsistent
with . . . other substantial evidence” in the record, the ALJ was not required to
give his opinion controlling weight.     Martinez, 64 F.3d at 176 (quotation
omitted).   The ALJ applied the proper legal standard and his decision is
supported by substantial evidence. See Brown, 192 F.3d at 496.
                                CONCLUSION
      The judgment of the district court is AFFIRMED.




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