     Case: 09-50658    Document: 00511085094         Page: 1    Date Filed: 04/20/2010




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                   Fifth Circuit

                                                FILED
                                                                          April 20, 2010
                                    No. 09-50658
                                  Summary Calendar                       Lyle W. Cayce
                                                                              Clerk

VICKI HUET,

                                                 Plaintiff – Appellant
v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                        for the Western District of Texas
                             USDC No. 1:08-CV-507


Before HIGGINBOTHAM, CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Plaintiff Vicki Huet’s claim for disability insurance benefits was denied by
the Commissioner of the Social Security Administration.                 This denial was
affirmed by the district court. On appeal, Huet claims the district court erred
in affirming the decision that she was not disabled during the relevant time
period, and in denying her disability insurance benefits claim. We conclude that
there was no error and AFFIRM.



*
 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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                     No. 09-50658

                                   BACKGROUND
       On June 24, 1999, Huet filed a claim for disability insurance benefits
alleging disability since January 20, 1994, due to fibromyalgia, headaches, and
depression.     On December 4, 2002, a hearing was conducted before an
administrative law judge (“ALJ”).          On January 28, 2003, the ALJ issued a
decision finding Huet not disabled during the relevant time period and denying
her claim for disability insurance benefits.1 This decision was appealed to the
Appeals Council, which remanded the matter for a second hearing.
       A different ALJ conducted the second hearing on January 10, 2005. On
April 12, 2005, the ALJ denied Huet’s claim. The Appeals Council denied Huet’s
request for review, making the ALJ’s ruling the final decision of the
Commissioner. 42 U.S.C. § 405(h). On appeal, the United States District Court
for the Western District of Texas held that the ALJ failed to conduct a necessary
review under Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002). The case was
remanded to the ALJ for the Watson review, which would determine whether
Huet could maintain employment for a significant period of time.
       The same ALJ who had conducted the second hearing conducted the third
on October 26, 2007. On February 6, 2008, the ALJ found Huet was not disabled
during the relevant time period. The claim for disability insurance benefits was
denied. The Appeals Council denied review. Huet appealed again to the district
court. On May 20, 2009, the court affirmed the Commissioner’s final decision
and denied Huet’s claim for disability insurance benefits.
       Huet then appealed here.

1
      The last day Huet met the insured status requirements of the Social Security Act was
on June 30, 2000. Therefore, the relevant time period during which she can claim disability
insurance benefits was between January 20, 1994 and June 30, 2000.

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                                  No. 09-50658

                                 DISCUSSION
      Under the Social Security Act, a “disability” is defined 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 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant is disabled “only
if his physical or mental impairment or impairments are of such severity that
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy. . . .” Id. § 423(d)(2)(A).
      Huet claims the district court erred in affirming the Commissioner’s final
decision and denying disability insurance benefits, because the district court: (A)
failed to enforce its order directing the ALJ to conduct a Watson review, and no
such review was conducted; (B) failed to give sufficient weight to opinions of
treating and examining physicians; and (C) failed to recognize that the ALJ’s
findings were not based on substantial evidence. We will consider Huet’s specific
issues, but our review is limited. We determine “(1) whether the Commissioner
applied the proper legal standard; and (2) whether the Commissioner’s decision
is supported by substantial evidence.” Waters v. Barnhart, 276 F.3d 716, 718
(5th Cir. 2002); see also 42 U.S.C. § 405(g).
      A.    The Watson Review
      The Watson review that Huet claims never occurred is required when a
claimant’s ailment, by its nature, “waxes and wanes in its manifestation of
disabling symptoms.” Frank v. Barnhart, 326 F.3d 618, 619 (5th Cir. 2003)
(discussing Watson). In such situations, the ALJ is required “to make a finding


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as to the claimant’s ability to maintain a job for a significant period of time,
notwithstanding the exertional, as opposed to non-exertional (e.g., mental
illness) nature of the claimant’s alleged disability.” Id. The goal of the Watson
review is to determine if the claimant is capable of maintaining substantially
gainful employment. Id. On the other hand, “to support a finding of disability,
the claimant’s intermittently recurring symptoms must be of sufficient frequency
or severity to prevent the claimant from holding a job for a significant period of
time.” Id.
      In the first appeal, the district court found that the ALJ had not
adequately addressed whether Huet’s limitations prevented her from
maintaining a job. The case was remanded and the ALJ ordered to perform the
Watson review. The ALJ characterized this remand as his being directed “to
address an unsuccessful work attempt and determine whether this evidence
supports a conclusion the claimant was unable to maintain work due to
absenteeism.”   The ALJ made ten specific findings, though none explicitly
referred to Watson. The ALJ found Huet capable of maintaining substantially
gainful employment during the relevant time period. “The evidence of record
does not substantiate the degree of limitation alleged, or support a conclusion
the claimant was precluded from performing the demands of competitive work
on a sustained basis.” Another finding was that the “evidence does not establish
that the claimant would be unable, during the period relevant to this case, to
perform work on a sustained basis consistent with the residual functional
capacity set forth above.” The ALJ explained what was missing in the evidence:
      While it is noted the claimant had one unsuccessful work attempt
      during the 6 1/2 year period under consideration, this fact alone
      does not support a conclusion of disability when viewed in the


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      context of the entire record. In fact, the claimant’s limited pursuit
      of employment, even when encouraged to work by one treating
      source, raises questions about her motivation. These facts, and the
      fact the claimant’s one work attempt place at a church daycare
      center, a position that would typically require medium exertion and
      some independent decision making, do not support a conclusion the
      claimant could not sustain work within the parameters of the
      residual functional capacity set forth above.

      The district court affirmed. The court noted that the ALJ never stated
that he was making a Watson finding. The district court still found that the ALJ
“did address the critical issue of whether Plaintiff was able to maintain
sustained employment during the relevant period,” and that no error occurred.
      Huet now claims that the district court allowed the ALJ to ignore the order
to conduct a Watson review.      Labels do not control.     If the ALJ properly
performed the review without citing Watson, the remand order was satisfied.
      Watson requires “a finding as to the claimant’s ability to maintain a job for
a significant period of time, notwithstanding the exertional . . . nature of the
claimant’s alleged disability.” Frank, 326 F.3d at 619. The ALJ has done so
here. Therefore, the proper legal standard was applied.
      B.    Weight Given to Medical Opinions
      Huet claims that the ALJ, whose decision was affirmed by the district
court, did not give proper weight to the opinions of Dr. Robert Dougherty, who
she contends is a treating physician. A physician qualifies as a “treating source”
if the claimant sees the physician “with a frequency consistent with accepted
medical practice for the type of treatment and/or evaluation required for [the]
medical condition(s).” 20 C.F.R. § 404.1502.




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      Generally, more weight is given to a treating physician’s opinions. See id.
§ 404.1527(d)(2). Under certain circumstances, though, an ALJ may discount or
reject a treating physician’s opinion. Instances include when “the treating
physician’s evidence is conclusory . . . or is otherwise unsupported by the
evidence.” Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000). If controlling
weight is not given to a treating physician’s opinion, the ALJ is required to give
“good reasons” for the weight given to this opinion. 20 C.F.R. § 404.1527(d)(2).
      Regardless of whether it comes from a treating physician or not,
conclusions that a claimant is “disabled” or “unable to work” are not given
special significance. Id. § 404.1527(e)(3). Those conclusions are reserved for the
Commissioner. Id. § 404.1527(e)(1).
      The district court found that the ALJ carefully considered the statements
of Huet’s physicians and properly determined that Dr. Dougherty’s opinions
were not entitled to controlling weight. We agree. For the reasons explained
by the district court, we hold that the ALJ did not err in determining the weight
given to Huet’s physicians’ medical opinions.
      C.    Substantial Evidence
      Huet also alleges that the district court erred in affirming the
Commissioner’s decision, because there was not substantial evidence of jobs in
significant numbers in the national economy that she could perform if she was
absent three to four days per month.
      “Substantial evidence is more than a scintilla but less than a
preponderance and is such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.”        Watson, 288 F.3d at 215 (citing
Richardson v. Perales, 402 U.S. 389, 401 (1971)). If there is substantial evidence


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to support the findings, they are conclusive and will be affirmed. Id. The
relevant evidence here was to support the final step of a five-step evaluation
process: the Commissioner at that stage must demonstrate that a claimant can
perform relevant work. Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). At
the hearing, the ALJ posed a scenario to a vocational expert in which the
hypothetical claimant had the limitations the ALJ found Huet to possess. The
expert testified that a such a person could work as an office helper, serving
worker, fund raiser, or information clerk, and that there were a significant
number of these jobs in Texas and across the nation. On cross-examination, the
vocational expert testified that a hypothetical claimant who missed three to four
days of work per month would not be able to be employed in any of these jobs.
This kind of testimony may be used to meet the Commissioner’s evidentiary
burden. Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).
      Huet argues that the cross-examination testimony required the award of
benefits. However, the ALJ was not required to agree that the symptoms would
cause her to miss three to four days of work per month. The ALJ did not find
that these allegations concerning her symptoms were supported by substantial
medical evidence in the record.
      Substantial evidence supports the Commissioner’s determination that
Huet was not disabled during the relevant time period.
      AFFIRMED.




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