United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 29, 2003
Charles R. Fulbruge III
Clerk
No. 03-10222
Summary Calendar
CECIL W NALL
Plaintiff - Appellant
v.
JO ANN B BARNHART, COMMISSIONER OF SOCIAL SECURITY
Defendant - Appellee
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:02-CV-00259-A
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Before KING, Chief Judge, and DeMOSS and STEWART, Circuit Judges.
PER CURIAM:*
Cecil W. Nall appeals the affirmance of the Social Security
Commissioner’s denial of his application for disability benefits.
Nall first argues that substantial evidence did not support the
administrative law judge’s (ALJ’s) assessment of his residual
functional capacity for light work. He argues that the ALJ erred
by not explicitly stating that Nall could maintain light work for
40 hours per week. The ALJ’s resolution of this issue was
subsumed in the analysis regarding Nall’s ability to return to
*
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that this opinion should not be published and is not precedent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. 03-10222
-2-
light work and was supported by substantial evidence. See Frank
v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003).
Second, Nall argues that the ALJ failed to give appropriate
weight to the opinion of his treating physician. He also argues
that the ALJ had a duty to seek clarification before giving his
doctor’s opinion little or no weight. Because the opinion of his
treating physician was contradicted by other medical evidence
based on personal examination of Nall, the ALJ did not err in
giving the opinion little or no weight without seeking
clarification. See Newton v. Apfel, 209 F.3d 448, 453 (5th Cir.
2000); see also Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.
1994).
Third, Nall argues that the ALJ erred in evaluating the
level of exertion required to perform his past relevant work.
Nall did not raise this issue below; review is therefore limited
to plain error. See Kinash v. Callahan, 129 F.3d 736, 739 n.10
(5th Cir. 1997). Because Nall has not argued that he is
completely unemployable, he has not shown that he is disabled
within the meaning of the Social Security Act and cannot prevail
under the plain error standard. 42 U.S.C. § 423(d)(1)(A);
Kinash, 129 F.3d at 739 n.10.
Nall last argues that the ALJ erred in finding that his
testimony was not credible, to the extent that he alleged that he
is completely unable to perform any work activity. He argues
that the ALJ failed to apply the factors enumerated in Social
No. 03-10222
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Security Regulation 96-7P. The ALJ applied five of the seven
listed factors in his analysis. Any failure to apply the
remaining two constitutes harmless error as Nall has not alleged
that they apply to his condition. See Frank, 326 F.3d at 622;
see also 1996 WL 374186 (SSR 96-7P). Moreover, substantial
evidence supports the ALJ’s credibility determination and is
therefore entitled to judicial deference. See Villa v. Sullivan,
895 F.2d 1019, 1024 (5th Cir. 1990). The district court’s order
affirming the Commissioner’s denial of benefits to Nall is
AFFIRMED.