United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 21, 2005
Charles R. Fulbruge III
Clerk
No. 04-50814
Summary Calendar
GWENDOLYN DOSS,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:03-CV-492-AA
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Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Gwendolyn Doss appeals the district court’s decision
affirming the Commissioner’s denial of social security disability
benefits. Doss argues that the Commissioner’s decision is not
supported by substantial evidence. The decision of the
Administrative Law Judge (ALJ) that Doss has the residual
functional capacity to perform sedentary work and that she is not
disabled within the meaning of the Social Security Act is
supported by substantial evidence, including the objective
*
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this opinion should not be published and is not precedent except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. 04-50814
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medical evidence, the opinions of Doss’s treating physicians, the
opinions of the medical consultants and experts, the opinion of
the vocational expert, and Doss’s testimony concerning her daily
activities. See Ripley v. Chater, 67 F.3d 552, 555 (5th Cir.
1995).
Doss argues that the ALJ did not address the impact of her
depression on her residual functional capacity to work. The
record indicates that the ALJ considered all the objective
medical evidence presented by Doss, which included notations from
some of her physicians that she suffered from depression.
However, the ALJ determined that Doss did not have a longitudinal
history of depression and had not been diagnosed with depression
by a psychologist or a psychiatrist. Doss was advised to follow
up with her treating physician concerning her depression.
Although Doss reported that she was depressed to her physician,
she apparently did not seek treatment or medication for her
depression. Doss’s failure to seek treatment for depression is
an indication of nondisability. See Villa v. Sullivan, 895 F.2d
1019, 1024 (5th Cir. 1990).
Doss argues that the ALJ failed to evaluate properly her
complaints of pain. The ALJ considered Doss’s testimony that she
suffered from disabling pain, but determined that the objective
medical evidence did not support her allegations or show that she
suffered from disabling pain that is “‘constant, unremitting, and
No. 04-50814
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wholly unresponsive to therapeutic treatment.’” See Falco v.
Shalala, 27 F.3d 160, 163 (5th Cir. 1994).
Doss argues that the ALJ did not consider the impact of her
obesity on her ability to perform sedentary work and asks the
court to remand the case to allow the ALJ an opportunity to ask
the medical expert more questions concerning her obesity. Doss
did not allege on the administrative level or in the district
court that she was disabled due to her obesity. She may not
raise new arguments for the first time on appeal. See Greenberg
v. Crossroads Systems, Inc., 364 F.3d 657, 669 (5th Cir. 2004).
Nonetheless, the ALJ considered the objective medical evidence,
including notations of her physicians that she was obese and that
her obesity contributed to her medical problems. Therefore, the
record indicates that ALJ did consider the impact of Doss’s
obesity on her ability to perform sedentary work.
Doss argues that the ALJ failed to determine whether she was
able to maintain employment. The ALJ’s determination that Doss
had the residual functional capacity to perform sedentary work is
a determination that she is able to sustain work-related
activities on a “regular and continuing basis,” meaning “8 hours
a day for 5 days a week.” See Social Security Ruling 96-8p (July
2, 1996); 20 C.F.R. §§ 404.1545, 416.945. The ALJ is not
required to make a separate determination that a claimant can
maintain employment in every case. See Dunbar v. Barnhart, 330
No. 04-50814
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F.3d 670, 672 (5th Cir. 2003); see also Frank v. Barnhart, 326
F.3d 618, 621 (5th Cir. 2003).
AFFIRMED.