(caption unavailable)

* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 92-8330
Summary Calendar
ROBERT LEE JACOBS,
Plaintiff-Appellant,
VERSUS
DONNA SHALALA, ETC.,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(DR-90-CV-12)
(June 28, 1993)
Before HIGGINBOTHAM, SMITH, and DeMOSS, Circuit Judges.
PER CURIAM:*
I.
BACKGROUND
Plaintiff-Appellant robert Lee Jacobs (Jacobs) appeals the
district court's summary judgment in favor of defendant-appellee,
Secretary of Health and Human Services (Secretary). The order

-- 1 of 14 --

2
dismissed Jacobs' motion to remand and affirmed the Secretary's
denial of Jacobs' claim for Social Security Disability insurance
benefits and supplemental income benefits, under 42 U.S.C. § 405
(g).
On July 26, 1988, Jacobs filed an application for social
security benefits. Jacobs alleged total disability due to
diabetes, uncontrollably high blood pressure and ulcers. Jacobs'
medical records indicate a history of pancreatitis dating back to
an abdominal injury in 1961, a fractured cervical spine dating back
to 1954, and treatment for hypertension and coronary artery
disease.
On February 2, 1987, Jacobs entered a hospital. Doctors
diagnosed him with acute pneumonia. Conventional treatment had no
effect on Jacobs. Subsequently, surgeons drained Jacobs' lungs and
performed two surgeries to repair a perforated ulcer. On April 19,
1987, the hospital discharged Jacobs. Over the next two years, Dr.
Winn periodically treated Jacobs for diabetes and hypertension.
The only significant event during this time was Jacobs'
hospitalization from February 20-March 3, 1988, for injuries
sustained in a car collision.
On March 30, 1989, Dr. Winn issued a "[T]o whom it may concern
letter" summarizing his treatment of Jacobs since 1969. The letter
emphasized that Jacobs' 1987 surgeries had left him with a ventral
hernia which significantly limited Jacobs' ability to lift.
Further, the letter stated that Dr. winn was treating Jacobs with
medication for depression related to his medical problems. In

-- 2 of 14 --

3
particular, the letter specified that Dr. Winn considered Jacobs
"completely and totally disabled."
On April 6, 1989, the administrative law judge (ALJ) held a
hearing. The ALJ advised Jacobs of his right to counsel when
Jacobs elected to appear pro se. After Jacobs answered that he
could not afford an attorney, the ALJ informed Jacobs of the
availability of Legal Services counsel. Additionally, the ALJ
stated that he "would be glad to give [Jacobs] a delay so that [he
could] find help." Nevertheless, Jacobs said that he was "very
informed" of his rights in this area, and insisted on proceeding
with the hearing.
During the hearing, which determined the extent of Jacobs'
disability, Jacobs stated that he had not worked since 1986.
However, Jacobs said that prior to the time of the hearing, he had
done some odd jobs about six hours a day, one day a week. When
asked by the ALJ why he could not perform a light job, Jacobs first
said it would be difficult for him to find such a job, and then
stated that his diabetes would pose a problem. Furthermore, Jacobs
said that it would be hard for him to take up a job because of his
susceptibility to insulin reactions and blackout spells.
Responding to the ALJ'S question asking how far he could walk,
Jacobs estimated that he could walk one mile. Now, Jacobs contends
that, in response to the ALJ's question, he stated he imagined he
could walk a mile and did not know for sure that he could. Jacobs
also said he could lift 60-70 pounds, occasionally even 100 pounds

-- 3 of 14 --

4
"if I have to." Further, Jacobs testified that he continued to
drive and do household chores.
Jacobs admitted his failure to follow Dr. Winn's request to
monitor his blood sugar while at home. However, Jacobs explained
that he had a defective monitoring device. Jacobs also complained
of severe abdominal pain once every 3-4 weeks. Further, Jacobs
stated that he had not had any side-effects from his medication.
Dr. Don Marth, a psychologist and vocational rehabilitation
counselor, testified at the hearing as a vocational expert. Dr.
Marth classified Jacob's past work as light to very heavy, and
skilled in nature. The ALJ asked Dr. Marth to assume that Jacobs
could perform light and sedentary work. Assuming such a functional
capacity and taking into account Jacobs' age, education, and work
experience, Dr. Marth testified that Jacobs' farming skills would
transfer to the jobs of sales clerk, telephone sales clerk, order
taker, and sales representative in a pesticide, fertilizer,
insecticide, or spray company. On the other hand, if Jacobs had
hypoglycemic attacks or dizzy spells on a frequent basis, Dr. Marth
testified that he would experience difficulty in performing those
jobs. in response, Jacobs stated that such jobs did not exist in
his area.
Jacobs contends that the ALJ did not inform Jacobs of his
right to cross-examine the vocational expert. However, the record
reflects that at the conclusion of Dr. Marth's testimony, and upon
further reexamination of Jacobs, the ALJ asked Jacobs whether he

-- 4 of 14 --

1 Sections 423(d)(1)(A) and 1382c(a)(3)(A) of the Social
Security Act define "disability" as:
The inability to engage in any substantial
gainful activity due to physical or mental
impairment(s) which can be expected to either
result in death or last for a continuous
period of not less than 12 months.
5
had "anything else . . . to say this morning," to which Jacobs
replied that he did not.
On July 31, 1989, the ALJ issued a decision finding Jacobs
capable of performing the light and sedentary jobs identified by
Dr. Marth. Thus, the ALJ found Jacobs not disabled within the
meaning of the Social Security Act.1 The ALJ also appended to the
decision two copies of the Psychiatric Review Technique form,
finding Jacobs without any medically determinable mental
impairment. The Appeals Council denied Jacobs' request for review,
and the ALJ's decision became the final decision of the Secretary.
On March 8, 1990, Jacobs filed a complaint in District Court.
On May 28, 1991, the Magistrate Judge recommended that the
Secretary's decision be affirmed. On June 10, 1992, the District
Court adopted the recommendation and affirmed the Secretary's
decision. Jacobs filed a timely Notice of Appeal on June 19, 1992.
On appeal to this Court, Jacobs contends that the District
Court erred in upholding the ALJ's decision because: (1) the ALJ
failed to develop the record fully and fairly; (2) no substantial
evidence existed to support the decision; and (3) the ALJ denied
Jacobs the right to cross-examine the vocational expert. Because
we find Jacobs' arguments to be meritless, we AFFIRM.

-- 5 of 14 --

6
II.
ANALYSIS
A. DID THE ALJ FAIL TO DEVELOP THE RECORD FULLY AND FAIRLY
This Court set forth a standard of review in Kane v. Heckler,
731 F.2d 1216, 1219 (5th Cir. 1984), (stating that the ALJ has a
duty to fully and fairly develop the facts relative to a claim for
benefits). When, as in this case, the claimant is not represented
by counsel, the ALJ's obligation "rises to a special duty" which
requires the ALJ to "scrupulously and conscientiously probe into,
inquire, of, and explore for all relevant facts." Id. at 1219-20.
If the ALJ fails in this duty he does not have before him
sufficient facts on which to make an informed decision and
consequently the decision is not supported by substantial evidence.
Furthermore, the Court in Kane held that the claimant (Kane) must
show that had the ALJ done his duty, Kane could have and would have
adduced evidence that might have altered the result. Id. at 1220.
Jacobs contends that the ALJ failed to perform his duty and
develop the record fully. See Kane v. Heckler, 731 F.2d 1216, 1219
(5th Cir. 1984). In Kane, this Court remanded a denial of benefits
by the ALJ because: "[t]he record disclosed[d] no question by the
ALJ concerning whether or not Kane desired counsel. The hearing
lasted five minutes and its transcript consisted{ed} of four pages.
. . . The aLJ asked only one perfunctory question about Kane's
subjective complaints." Kane v. Heckler, 731 F.2d at 1218.
In contrast, this Court held in James v. Bowen, 793 F.2d 702,
704-705 (5th Cir. 1986), that the hearing before the ALJ was

-- 6 of 14 --

2 In James, this court unequivocally states that it did not
set a time rule in Kane for determining if the ALJ conducted a full
and fair investigation, but rather an objective test. Further, the
court asserted that the substantial questioning of the ALJ about
James' ability to walk, lift etc. did develop the relevant facts
and the amount it took is not determinative.
7
adequate and distinguishable from that in Kane because it lasted
for ten minutes and the ALJ questioned the applicant extensively
about his condition.2 In comparison, the hearing in Jacobs' case
lasted thirty-two minutes. Further, Jacobs' hearing yielded
fifteen pages of testimony. Cf. Carrier v. Sullivan, 944 F.2d 243,
245 (5th Cir. 1991) (where the hearing lasted for 26 minutes and
yielded 16 pages of testimony). The ALJ advised Jacobs of his
right to counsel, including the right to have counsel free of
charge. Additionally, the ALJ offered to postpone the hearing so
that Jacobs could obtain counsel. Moreover, the ALJ extensively
questioned Jacobs about the following aspects of his claim: (1)
the day he last worked; (2) his attempts to find other work; (3)
his ability to push, pull, reach, and grasp; (4) his lifting
capacity; (5) his walking ability; (6) his need for assistive
devices; (7) his ability to bend and stoop; (8) his smoking and
drinking habits; (9) his activities; (10) his degree of pain; (1)
whey he felt he could not work; and (12) whether he had any side-
effects from medication. Finally, the ALJ asked Jacobs to comment
on the vocational expert's testimony.
Dr. Winn stated that Jacobs was being treated for depression
resulting from his physical ailments. This Court has held that
depression relating from frustrations concerning functional

-- 7 of 14 --

3 Johnson states that the standard for evaluating a
plaintiffs subjective complaints requires:
. . .(1) that subjective complaints of pain be
seriously considered even where not fully confirmed
by objective medical evidence; (2) that subjective
pain may support a claim for disability benefits
and be disabling; (3) that where such complaints
are supported by medical evidence, they should be
given great weight; and (4) that where a claimant's
testimony as to pain is reasonably supported by
medical evidence, the ALJ may not discount
claimant's pain without contrary medical evidence.
Johnson v. Bowen, 699 F. Supp. 475, 482 (E.D. Pa. 1988).
8
limitations does not constitute a medically determinable mental
impairment. Jones v. Bowen, 829 F.2d 524, 526 (5th Cir. 1987).
Jacobs did not specifically raise the issue of depression in his
claim for disability benefits or at the hearing before the ALJ.
Therefore, the ALJ was not required to further develop the record
on this issue; however, the ALJ did attach a Psychiatric Review
Technique form in which he found that Jacobs did not have a
medically determinable impairment. The ALJ fulfilled his duty to
develop a full and fair record. See Carrier v. Sullivan, 944 F.2d
at 245.
Jacobs further argues that the ALJ failed in his duty to take
into account subjective complaints like pain. Jacobs contends that
the ALJ may not discount a claimant's pain without contrary medical
evidence. Johnson v. Bowen, 699 F. Supp. 475, 482 (E.D. Pa.
1988).3 However, this Court has previously held that not all pain
or discomfort is disabling, and the fact that a claimant cannot
work without such symptoms will not render his disabled. Cf.
Hollis v. Bowen, 837 F.2d 1378, 1384 (5th cir. 1988). In this
case, the ALJ did find plaintiff's complaints credible to the

-- 8 of 14 --

4 20 C.F.R. § 404.1566(c) states "We will determine that you
are not disabled if your residual functional capacity and
vocational abilities make it possible for you to do work which
exists in the national economy but you remain unemployed because-
1. Your inability to get work;
2. Lack of work in your local area;"
9
extent that he was limited to light and sedentary work activity.
the ALJ's determination that plaintiff's complaints are credible
only to this extent is entitled to considerable deference if
supported by substantial evidence. See Carrier v. Sullivan, 944
F.2d at 247; Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991).
Moreover, the ALJ properly noted that the record does not
contain evidence of muscular spasm, atrophy, sensory loss, or
similar observable manifestations which would indicate severe and
constant pain. Cf. Hollis v. Bowen, 837 F.2d at 1384. Also,
factors like Jacobs' ability to engage in driving and household
work were found by the ALJ to be found inconsistent with his
complaints. The ALJ noted that Jacobs' testimony suggested that he
was not working because he could not find a job, not because he was
disabled. Cf. 20 C.F.R. §§ 404.1566(c), 416.966(c).4 Accordingly
the ALJ identified sufficient reasons for finding Jacobs'
subjective complaints not credible to the extent that they would
preclude the performance of light and sedentary jobs.
B. DID SUBSTANTIAL EVIDENCE EXIST TO SUPPORT THE ALJ's DECISION
The Court must determine whether there is substantial evidence
in the record to support the ALJ's decision and whether the proper
legal standards were used in evaluating the evidence. Villa v.
Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990). Substantial

-- 9 of 14 --

10
evidence is more than a scintilla, but less than a preponderance.
It is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion. Villa, 895 F.2d at 1021-22. in
applying this standard, this Court may not reweight the evidence or
try the issues de novo, but must review the entire record to
determine whether substantial evidence exists to support the ALJ's
findings. Id. at 1022.
The Social Security Act defines disability as the "inability
to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be expected
to last for a continuous period of not less than twelve months."
42 U.S.C. § 423(d)(1)(A). The Secretary follows a five-step
process in evaluating a disability claim. A finding that a
claimant is not disabled at any point terminates the sequential
evaluation. Crouchet v. Sullivan, 885 F.2d 202, 206 (5th Cir.
1989). The five steps are:
1) Claimant is not presently working;
2) Claimant's ability to work is significantly limited by a
physical or mental impairment;
3) Claimant's impairment meets or equals an impairment
listed in the appendix to the regulations. (If so,
disability is automatic);
4) Impairment prevents claimant from doing past relevant
work;
5) Claimant cannot perform relevant work.
See Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991); 20 C.F.R.
§ 404.1520. The ALJ determined that Jacobs' claim failed to pass

-- 10 of 14 --

5 Dr. Winn considered Jacobs completely and totally disabled.
11
step three in the five step analysis. The ALJ stated that Jacobs
"does not have an impairment or combination of impairments listed
in, or medically equal to one listed in Appendix 1, Subpart P,
Regulations No.4."
The ALJ also found that--although Jacobs cannot perform his
past relevant work as a farmer--Jacobs retains the residual
functional capacity to perform other relevant work in telephone
sales or as an order taker. Thus, Jacobs is also disqualified at
step five in the five-step analysis.
Jacobs contends that there could not have been substantial
evidence for the ALJ's decision because the ALJ did not follow the
recommendation of Dr. Winn, Jacobs' treating physician.5 Jacobs
argues that the ALJ is bound by Dr. Winn's determination unless
contradicted by substantial evidence. Havas v. Bowen, 804 F.2d
783, 785 (2nd Cir. 1986). Jacobs further asserts that an ALJ may
disregard the treating physician's opinion but only by setting
forth "specific, legitimate reasons for doing so, and this decision
must itself be based on substantial evidence. As authority for the
above Jacobs cites Rodriguez v. Bowen, 876 F.2d 759 (9th Cir.
9189). Jacobs is incorrect.
In the Fifth Circuit, the ALJ has broad discretion in
determining the credibility of medical experts as well as lay
witnesses and to weight their opinions and testimony accordingly.
Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). In addition,
the ALJ is free to reject the treating doctor's determinations if

-- 11 of 14 --

12
there is contradictory evidence. Bradley v. Bowen, 809 F.2d 1054,
1057 (5th Cir. 1985).
The strongest evidence contradicting the treating physicians'
determination of disability came from Jacobs himself. Jacobs
testified at the hearing that he could lift, walk, sit, use his
arms and legs. Jacobs stated that he had done some odd jobs about
one day a week prior to the hearing. When asked why he could not
perform a light job, Jacobs stated that he could perform light
work, but that it would be difficult for him to find such a job.
There as ample evidence for the ALJ to conclude--in spite of the
treating physician's findings--that Jacobs was not disabled for the
purpose of the Social Security Act.
C. PROCEDURAL DUE PROCESS OBJECTIONS
Jacobs makes two procedural due process claims. First, Jacobs
argues the ALJ denied his right to procedural due process by not
informing him of his right to cross-examine the vocational expert.
Jacobs states that the ALJ has a special responsibility to inform
a claimant that he has a aright to cross-examination particularly
when he represents himself. Coffin v. Sullivan, 895 F.2d 1206 (8th
Cir. 1990).
This Court has held that "[p]rocedural perfection in
administrative proceedings is not required, so that judgments will
be vacated only when a party's substantial rights have been
affected. Morris v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
The ALJ does not have an absolute duty to advise an unrepresented
claimant of the right to cross-examine witnesses, and failure to do

-- 12 of 14 --

6 While Jacobs asserts that he did not realize that he could
present evidence in support of his claim, the Notice of Hearing
sent to him in this case reveals that Jacobs was indeed advised
that he could present evidence, including supporting witness
testimony and arguments.
13
so is seldom, by itself, reason for remand. Fiqueroa v. Secretary
of Health, Education & Welfare, 585 F.2d 551, 554 (1st Cir. 1978).
Further, this Court has also held that it was not error for an ALJ
not to advise a pro-se claimant of the right to cross-examine a
non-testifying witness, when the claimant did not object to the
admissibility of the witness's testimony or request cross-
examination. Cross v. Finch, 427 F.2d 405, 408 (5th Cir. 1970).
Jacobs was informed of his right to have an attorney represent
him at the hearing. The form advising him of his right to counsel
stated: "[A] representative can question witnesses . . . in
support of your claim." Jacobs was, in fact, informed by the
Secretary that he could question witnesses.
After the testimony of the vocational rehabilitation expert,
the ALJ asked Jacobs if there was anything else he would like to
say.
The ALJ did not inform Jacobs of his right to cross-examine;
however, the ALJ did engage in a fair, searching, and even-handed
questioning of both Jacobs and the vocational expert. See
Fiqueroa, 585 F.2d at 554.
Jacobs has not indicated any additional evidence he would have
produced if he had been informed of his right to cross examine.6
His substantial rights were not affected by the failure of the ALJ
to inform him of his right to cross-examine. Mays, 837 F.2d at

-- 13 of 14 --

14
1364. Accordingly, Jacobs has not established a due process
violation resulting from the ALJ's failure to advise him of the
right to cross-examine Dr. Marth.
Second, Jacobs makes the assertion that the Psychiatric Review
Technique form attached in duplicate to the ALJ's decision
constitutes a post-hearing medical report, which gives right to
cross-examination of the author by Jacobs. However, a Psychiatric
Review Technique is not a medical report; it is a form in which the
ALJ addresses allegations of a mental impairment, in accordance
with the regulations. Cf. 20 C.F.R. § 404.1520(a). Further, the
ALJ wrote the report.
III.
CONCLUSION
For the foregoing reasons we hold that substantial evidence
existed to support the ALJ's decision, the ALJ fully developed the
record and satisfied procedural due process.
We AFFIRM.

-- 14 of 14 --