Jimmy Brunson v. Michael Astrue, Commissioner

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Jimmy Brunson v. Michael Astrue, Commissioner Doc. 0 Case: 09-41148 Document: 00511176577 Page: 1 Date Filed: 07/16/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED July 16, 2010 N o . 09-41148 S u m m a r y Calendar Lyle W. Cayce Clerk J I M M Y D. BRUNSON, P la in t iff - Appellant v. M I C H A E L J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, D e fe n d a n t - Appellee A p p e a l from the United States District Court fo r the Eastern District of Texas, Lufkin U S D C No. 9:07-CV-301 B e fo r e JOLLY, STEWART, and ELROD, Circuit Judges.. P E R CURIAM:* J im m y D. Brunson appeals the district court's judgment affirming the C o m m is s io n e r of Social Security's decision that he is not entitled to Social S e c u r it y disability benefits. Because the Commissioner applied the correct legal s t a n d a r d s and because there is substantial evidence to support the decision, we a ffir m . 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Dockets.Justia.com Case: 09-41148 Document: 00511176577 Page: 2 Date Filed: 07/16/2010 No. 09-41148 I. Mr. Brunson applied for Social Security disability benefits in July 2002. He alleged that he had been disabled since March 30, 1997, because of back p r o b le m s , depression, diabetes, and high blood pressure. The date on which he w a s last insured for purposes of Social Security disability benefits was S e p t e m b e r 30, 1998. Accordingly, Mr. Brunson had to establish that he was d is a b le d before the expiration of his insured status. See Anthony v. Sullivan, 9 5 4 F.2d 289, 295 (5th Cir. 1992). The Social Security Administration denied his a p p lic a t io n initially and on reconsideration. Mr. Brunson requested a hearing b e fo r e an Administrative Law Judge (ALJ). Following the hearing, the ALJ fo u n d that Mr. Brunson had a medically determinable impairment related to his b a c k but that, as of September 30, 1998, the date he was last insured, he did not h a v e an impairment or a combination of impairments that was severe within the m e a n i n g of the sequential evaluation process used for evaluation of disability b e n e fit claims. The ALJ's decision became the Commissioner's final decision a ft e r the Appeals Council denied Mr. Brunson's request for review. The district c o u r t affirmed the decision of the Commissioner. Mr. Brunson filed a timely n o tic e of appeal. II. M r . Brunson contends on appeal that (1) the ALJ misstated the record in a s s e r t in g that there was no evidence of psychiatric treatment prior to the e x p ir a t io n of his insured status; and (2) the ALJ erred by ignoring evidence h e lp fu l to Mr. Brunson in deciding that his lumbar impairment is not severe u n d e r step two of the sequential analysis. An impairment is severe if it s ig n ific a n t ly limits an individual's physical or mental abilities to do basic work a c t i v i t i e s ; it is not severe if it is a slight abnormality or combination of slight a b n o r m a lit ie s that has no more than a minimal effect on the claimant's ability t o do basic work activities. Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985). 2 Case: 09-41148 Document: 00511176577 Page: 3 Date Filed: 07/16/2010 No. 09-41148 W e review the Commissioner's decision only to ascertain whether it is supported b y substantial evidence and whether the Commissioner applied the proper legal s t a n d a r d s in evaluating the evidence. Newton v. Apfel, 209 F.3d 448, 452 (5th C ir . 2000). We may not re-weigh the evidence or substitute our judgment for t h a t of the Commissioner, even if the evidence weighs against the C o m m is s io n e r 's decision. Id. M r . Brunson is correct in his assertion that the ALJ misstated the record w h e n he stated that it contained no evidence of any ongoing psychiatric t r e a t m e n t and no evidence that Mr. Brunson was ever prescribed psychotropic m e d ic a t io n during the period in question (March 30, 1997 through September 3 0 , 1998). That error, however, is harmless, because the evidence in the record in d ic a te s that Mr. Brunson took anti-depressant medication which controlled his s y m p t o m s of depression during the relevant time period. Thus he did not have a severe mental impairment prior to September 30, 1998, the date he was last in s u r e d . See Johnson v. Bowen, 864 F.2d 340, 347 (5th Cir. 1988) (impairments t h a t reasonably can be remedied or controlled by medication or treatment are n o t disabling). Accordingly, it would not be appropriate for us to remand the c a s e for the purpose of having the ALJ correct this misstatement. T h e ALJ applied the proper legal standard of Stone v. Heckler in d e t e r m in in g that Mr. Brunson did not have a severe impairment or a c o m b i n a t io n of severe impairments during the period from March 30, 1997 t h r o u g h September 30, 1998. Furthermore, substantial evidence in the record s u p p o r t s the ALJ's conclusion that Mr. Brunson's back pain did not impose more t h a n a minimal effect on his ability to engage in basic work-related activities d u r in g the relevant period. The fact that the ALJ cited certain evidence that he fe lt supported his decision does not mean that he failed to consider all of the o t h e r evidence in the record. To the contrary, his decision states expressly that it was made "[a]fter careful consideration of all the evidence,"and we see no 3 Case: 09-41148 Document: 00511176577 Page: 4 Date Filed: 07/16/2010 No. 09-41148 r e a s o n or evidence to dispute his assertion. Indeed, based on our review of all o f the evidence in the record, the Commissioner's decision is supported by s u b s t a n t ia l. That evidence shows that Mr. Brunson injured his back on March 3 0 , 1997. His treating physician, Dr. Williams, recommended physical therapy. In a report dated August 21, 1997, Dr. Williams released Mr. Brunson to full d u t y work, finding that he had a four percent impairment to the person as a w h o le . Although Dr. Williams occasionally indicated on forms that Mr. Brunson " c a n 't work," such declarations are not determinative, particularly when c o n s id e r e d in the light of her clinical findings. See Frank v. Barnhart, 326 F.3d 6 1 8 , 620 (5th Cir. 2003) (treating physicians' opinions that claimants are unable t o work are legal conclusions for the Commissioner to make). At the hearing, the A L J asked Mr. Brunson to describe the most severe medical problem that he had t h a t kept him from working. Mr. Brunson mentioned his feet, ankle, dizzy s p e lls , and complications of diabetes, but did not include back pain. III. W e conclude that the Commissioner's decision is supported by substantial e v id e n c e and resulted from application of the correct legal standards. Accordingly, the decision of the district court affirming the Secretary's denial of b e n e fits is A F F IR M E D . 4

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