Cook v. Barnhart

                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 01-51149
                           Summary Calendar



JAMES L. COOK,

                                           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. A-00-CV-706-SS
                       --------------------
                           June 7, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges

PER CURIAM:*

     James L. Cook appeals the district court’s judgment

affirming the Social Security Commissioner’s decision to deny him

disability benefits.    He argues that the Administrative Law Judge

(“ALJ”) erred in determining that he retained the residual

functional capacity to do medium or light work that did not

involve pushing or pulling more than 50 pounds occasionally or 25

pounds frequently; walking, sitting, or standing six hours a day;

     *
        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that this opinion should not be published and is not precedent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. 01-51149
                                -2-

frequent kneeling; or use of the right eye.    He also contends,

for the first time on appeal, that the psychological evaluation

he submitted to the Appeals Council, which showed him to have a

low intelligence quotient, met a listed impairment and should

have resulted in an automatic finding that he was disabled.

Because this argument was not presented to the district court,

this court will not consider it.     See Shanks v. AlliedSignal,

Inc., 169 F.3d 988, 993 n.6 (5th Cir. 1999); Burch v. Coca-Cola

Co., 119 F.3d 305, 319 (5th Cir. 1997).

     Cook has not demonstrated any error in the Commissioner’s

decision.   Substantial evidence supports the determination that

Cook retained the residual functional capacity to do light or

medium level work with the specified limitations.    Cook’s

argument that the ALJ failed to consider the combined effect of

his impairments is incorrect.   His contention that the ALJ

disregarded the vocational expert’s testimony that a person using

a cane could not perform the medium and light jobs listed as

otherwise appropriate for Cook is similarly unavailing.    Cook

conceded that no doctor had prescribed his use of a cane, and the

medical record is devoid of any evidence supporting his cane use.

The limitation of cane use asserted by Cook and not recognized by

the ALJ is not binding on the ALJ.    See Gay v. Sullivan, 986 F.2d

1336, 1341 (5th Cir. 1993).

     To the extent that Cook argues that the ALJ failed to credit

his subjective complaints of pain and other medical evidence he
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                               -3-

asserts supports his claim of disability, he is correct, but this

court will neither reweigh the evidence nor overturn the ALJ’s

credibility determinations.   See Chaparro v. Bowen, 815 F.2d

1008, 1011 (5th Cir. 1987).

     The district court’s judgment is AFFIRMED.