Jimmy Price v. Michael Astrue, Commissioner

Filing

UNPUBLISHED OPINION FILED. [09-51145 Affirmed] Judge: JLW , Judge: ECP , Judge: PRO. Mandate pull date is 01/10/2011 [09-51145]

Jimmy Price v. Michael se: 09-51145 Document: 00511298725 CaAstrue, Commissioner

Page: 1 Date Filed: 11/18/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 18, 2010 N o . 09-51145 S u m m a r y Calendar Lyle W. Cayce Clerk

J I M M Y L. PRICE P la in t if f -A p p e lla n t v. M I C H A E L J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY D e fe n d a n t -A p p e lle e

A p p e a l from the United States District Court fo r the Western District of Texas U S D C No. 6:08-CV-309

B e fo r e WIENER, PRADO, and OWEN, Circuit Judges. P E R CURIAM:* P la in t iff-A p p e lla n t Jimmy Price appeals the district court's affirmance of t h e Commissioner of Social Security's denial of his claim for Disability Insurance B e n e fit s under Title II of the Social Security Act and for Supplemental Security I n c o m e under Title XVI of the Social Security Act. Price filed for benefits on a c c o u n t of diabetes, joint pain, a bad back, fatigue, depression, high blood p r e s s u r e , and difficulty sleeping. The Commissioner's denial of benefits was

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-51145 Document: 00511298725 Page: 2 Date Filed: 11/18/2010

No. 09-51145 u p h e ld by the ALJ, and Price requested review of the ALJ's decision by the A p p e a ls Council, which refused to reverse the decision of the ALJ. Price sought ju d ic ia l review in the district court, which, relying on the recommendation of the m a g is tr a t e judge, affirmed the decision of the ALJ. Price timely appealed. O u r review of the denial of disability benefits, like that of the district c o u r t, is limited to determining whether substantial record evidence exists to s u p p o r t the Commissioner's decision to deny benefits and whether the ALJ m is a p p lie d the law.1 We will neither make credibility determinations nor rew e i g h the evidence.2 The ALJ does not need to comment on every piece of e v id e n c e , but only must build an accurate and logical bridge between the e v id e n c e and the final determination.3 The ALJ must consider the testimony of t h e claimant, but need not accept the claimant's contention as to the severity of h is condition.4 T h e ALJ determined that Price was able to engage in substantial gainful a c t iv it y because he could perform work in light of his residual functional c a p a c it y (RFC).5 Sufficient evidence supports the ALJ's determination that Price h a d the residual capacity to perform work. The ALJ engaged all of the relevant ev id en ce, made credibility determinations, and explained reasons for discounting s o m e of the evidence in the record. d e t e r m in a t io n s on appeal. We will not second guess these

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Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1994). Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999). Glomski v. Massanari, 172 F. Supp. 2d 1079, 1082 (E.D. Wis. 2001). See Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991).

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We note that, regardless of the insufficient evidence provided to the ALJ, much of that evidence was from opinions after Price's last date of his insured status: December 31, 2005.

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Case: 09-51145 Document: 00511298725 Page: 3 Date Filed: 11/18/2010

No. 09-51145 T h e ALJ specifically noted Price's back and leg pain, as well as Price's t e s t im o n y concerning his limitations. The ALJ did not find the testimony

e n tir e ly persuasive, noting that Price can cook, do housework, and drive.6 The A L J observed that an MRI in 2007 evidenced only mild degeneration in the lu m b a r spine. The ALJ discussed how Price responded positively to Ultram, t h u s determining that Price's claims of the intensity of his pain were not entirely c r e d ib le . The ALJ also discussed the pain and limitations in Price's right

s h o u ld e r , and noted that treatment has been somewhat successful and that Price h im s e lf noted improvement in his shoulder functioning. The ALJ mentioned P r ic e 's sleeping problems and reasonably concluded that Price should not p e r fo r m exertionally demanding work or work involving the lifting or carrying o f items in excess of 20 pounds. The ALJ also addressed Price's claim that he h a d to keep his feet elevated and found these claims unsupported by the record a n d less than credible. Neither did the ALJ believe that Price's depression was s ig n ific a n t ly limiting, noting that Price had stated that psychotropic drugs had im p r o v e d his depression and that Price was able to function while living on his ow n. We do not agree with Price that the ALJ failed to rely on the reports and o p in io n s of the treating physicians. It is legal error for an ALJ to give more w e ig h t to a non-treating physician than to a treating physician,7 but the ALJ n e e d not give controlling weight to a treating physician's determination if it is c o n t r a d ic t e d by the record.8 Price's treating doctors do not make any claim that h e is disabled; they merely discuss the symptoms described by Price and

The ALJ could properly observe the claimant's daily activities in determining disability status. See Leggett v. Chater, 67 F.3d 558, 565 n.12 (5th Cir. 1995).
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See Wade v. Apfel, 1998 WL 874853 at *3 (S.D.N.Y. 1998). See 20 C.F.R. § 404.1527(d)(2).

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Case: 09-51145 Document: 00511298725 Page: 4 Date Filed: 11/18/2010

No. 09-51145 a d d r e s s e d by the ALJ. In light of the record as a whole, the ALJ could

r e a s o n a b ly have determined Price's limitations in the way that he did. A vocational expert's opinion must be based on appropriate hypothetical q u e s t io n s .9 We are convinced that the hypothetical question posed by the ALJ w a s appropriate, and thus that the vocational expert's opinion was sufficient to c o n s t it u t e substantial evidence. A F F IR M E D .

See Haggard v. Apfel, 175 F.3d 591, 595 (8th Cir. 1999) ("A vocational expert's testimony based on a properly phrased hypothetical question constitutes substantial evidence." (quotation marks and citation omitted)).

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