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United States Court of Appeals,
Fifth Circuit.
No. 93-3621
Summary Calendar.
Ethel PAUL, Plaintiff-Appellant,
v.
Donna E. SHALALA, Secretary of Health and Human Services,
Defendant-Appellee.
Aug. 18, 1994.
Appeal from the United States District Court for the Eastern
District of Louisiana.
Before GARWOOD, SMITH and DeMOSS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
Ethel Paul was denied disability and Supplemental Security
Income ("SSI") benefits by the Secretary, Department of Health and
Human Services. Concluding that the district court correctly
awarded summary judgment in favor of the Secretary, we affirm.
I.
Paul applied for disability and SSI benefits on January 6,
1990, alleging disability because of back injury, diabetes, and
hypertension. The Secretary denied her application initially and
then again upon reconsideration.
At Paul's request, the claim was heard before an
administrative law judge ("ALJ") on December 21, 1990. Paul's
personal physician, Michael Hunter, attested to Paul's physical
disabilities. In response, the Secretary presented a vocational
expert, who opined that Paul had sufficient residual functional
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capacity to perform certain work, and Donald Faust, an orthopedic
surgeon, who examined Paul and testified that her disabilities were
less pronounced than had been alleged. The ALJ concluded that
Paul's disabilities were insufficient to meet the SSA requirements
and thus denied her relief.
The Appeals Council rejected Paul's request for review.
Pursuant to 42 U.S.C. § 405(g), Paul appealed to the district
court, which adopted the magistrate judge's recommendation and
dismissed Paul's complaint.
II.
Paul raises two issues on appeal. First, she contends that
the ALJ failed to comply with 20 C.F.R. § 404.1512(e)(1), which she
reads to require that a claimant's treating physician be given an
opportunity to supplement his initial report with more detailed
information, should the ALJ find the information to be inadequate.
Paul alleges, and the Secretary acknowledges, that despite the
ALJ's
finding
that
Hunter's
medical
conclusions
were
unsubstantiated by supporting clinical data, Hunter was never
solicited by the ALJ to present additional information. Rather,
the ALJ merely substituted Faust's medical opinions for Hunter's.
Paul also asserts, as error, the ALJ's decision to give more weight
to Faust's testimony, alleging that the opinion of Hunter, as
treating physician, should be accorded more deference.
III.
Our review of the Secretary's final decision is limited to
two inquiries: (1) whether substantial evidence of record supports
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the Secretary's decision; and (2) whether the decision comports
with relevant legal standards. Muse v. Sullivan, 925 F.2d 785, 789
(5th Cir.1991) (per curiam); Villa v. Sullivan, 895 F.2d 1019,
1021 (5th Cir.1990). "Substantial evidence is more than a
scintilla and less than a preponderance. It is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion." Muse, 925 F.2d at 789. If supported by substantial
evidence, the decision of the Secretary is conclusive and must be
affirmed. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420,
1422, 28 L.Ed.2d 842 (1971).
IV.
A.
This court has jurisdiction to review the Secretary's final
decision only where a claimant has exhausted her administrative
remedies. Muse, 925 F.2d at 791; Dominick v. Bowen, 861 F.2d
1330, 1332 (5th Cir.1988). Paul's failure to raise her §
404.1512(e)(1) claim in the Appeals Council, see 20 C.F.R. §
404.900(b), deprives us of jurisdiction to review the claim. As
such, we dismiss Paul's first issue on appeal for want of
jurisdiction.
Paul's arguments to the contrary are inapposite. First, the
new claim that the ALJ failed to comply with § 404.1512(e)(1) is
not an expansion of the general rationale proffered in support of
the appeal. Prior to raising the treating physician
supplementation argument in the district court, Paul centered her
appeal to the Appeals Council on the allegedly disproportionate
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weight ascribed to the consulting physician's opinion and on the
alleged misapplication of Social Security Ruling 88-13. These foci
are distinct from Paul's additional contention that Hunter should
have been contacted to supplement his original testimony.
The two "assignment[s] of errors" that Paul presented to the
Appeals Council were "[w]hether the [ALJ] erred in discounting the
findings and opinions of the treating physicians" and "[w]hether
the [ALJ] erred in failing to properly apply Social Security Rule
88-13." The closest Paul comes to a § 404.1512(e)(1) issue in her
Appeals Council brief is the statement that "[f]or the [ALJ] to
assume that Dr. Hunter did not have the totality of the records in
his possession is an unsubstantiated assumption." This assertion
falls well short of an argument that § 404.1512(e)(1) (which Paul
did not cite) requires that the doctor be recontacted.
Second, the caselaw supports our decision to dismiss for want
of jurisdiction. We disagree with Paul that the situation in this
case is markedly different from those in Dominick and Muse. The
plaintiff in Dominick asserted, for the first time on appeal to the
circuit court, an error in the determination of her insured status,
id. at 1332, while the Muse plaintiff similarly failed to challenge
the alleged bias of the ALJ in front of the Appeals Council. Id.
at 791. Paul, similarly, did not raise the treating physician
claim at the Appeals Council; the issue surfaced for the first
time in the district court.
Furthermore, while equitable grounds may support this court's
decision to consider issues not previously presented, In re
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Corrugated Container Antitrust Litig., 647 F.2d 460, 461 (5th Cir.
Unit A May 1981) (per curiam) ("This rule, however, is not
inflexible and it gives way when necessary to prevent a miscarriage
of justice."), we refuse to do so here. Paul's reliance upon
Thorton v. Schweiker, 663 F.2d 1312 (5th Cir. Dec. 1981), in which
we considered evidence that had not been presented at previous SSA
hearings, is unfounded. In Thorton the plaintiff had requested
assistance from the SSA in obtaining certain medical records that
she wished to present at her hearing. Despite having given
repeated assurances that the records would be obtained, the SSA
never did so, and the records never appeared in evidence before the
ALJ. In light of the plaintiff's reasonable reliance upon SSA's
representations and in order to prevent a miscarriage of justice,
we remanded for further review. Id. at 1316.
In contrast, Paul's failure to raise her claim during the
administrative process was her own doing; she neither requested
help nor relied upon the Secretary's representations of such help.
Therefore, in light of Paul's failure to exhaust her administrative
remedies, we dismiss the § 404.1512(e)(1) claim for want of
jurisdiction.
B.
We also reject Paul's second issue on appeal. "Although we
review the entire record, we may not re-weigh the evidence or
substitute our judgment for the Secretary's." Hollis v. Bowen, 837
F.2d 1378, 1383 (5th Cir.1988) (per curiam). Typically the opinion
of the treating physician is entitled to great weight. The ALJ may
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diminish its weight relative to other experts, however, where the
treating physician's evidence is unsupported by medically
acceptable clinical, laboratory, or diagnostic techniques, or where
otherwise unsupported by the evidence. Scott v. Heckler, 770 F.2d
482, 485 (5th Cir.1985). The opinion of a specialist generally is
accorded greater weight than that of a non-specialist. Dorsey v.
Heckler, 702 F.2d 597, 603 (5th Cir.1983).
We are unable to say that the ALJ erred in deciding as to the
credibility of competing witnesses. The ALJ supported his decision
to rely more heavily upon Faust's testimony in part because of
inconsistencies in Hunter's testimony, insufficient laboratory work
submitted in support of Hunter's testimony, and Faust's
qualifications as an orthopedic expert. Faust expressly stated
that Paul's injuries were less severe than alleged and that she was
capable of performing specific employment functions. The ALJ's
decision reflects careful consideration of the evidence presented,
and we may not substitute our judgment for the Secretary's. We
therefore conclude that, under the appropriate standard of review,
substantial evidence supports the ALJ's decision to weigh Faust's
testimony more heavily and to find that Paul was capable of
performing certain work.
V.
For the foregoing reasons, we reject Paul's arguments on
appeal and AFFIRM the judgment of the district court.

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