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

                                                 FILED
                                                                            May 14, 2009

                                       No. 08-30989                    Charles R. Fulbruge III
                                                                               Clerk

ROBERT THIBODEAUX

                                                   Plaintiff-Appellant
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                   Defendant-Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:07-CV-3647


Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
       In this disability-insurance case, Robert Thibodeaux asserts that he was
entitled to benefits for the period from April 7, 2003 to May 5, 2005 due to a
combination of related impairments, including depression, insomnia, mood
swings, poor concentration, and fatigue, which together rendered him unable to
work. The administrative law judge (“ALJ”) determined that Thibodeaux was
not disabled, and the Social Security Appeals Council denied Thibodeaux’s
request for review, affirming the ALJ’s decision as the final decision of the Social

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
                                  No. 08-30989

Security Commissioner. The district court upheld that decision. Thibodeaux
appeals, arguing that the ALJ failed to properly weigh the opinions of his
treating psychiatrist, Dr. Kennison Roy, and therapist, William Bischoff.
Thibodeaux also argues that the ALJ made factual findings based on a
misinterpretation of the mental residual functional capacity (“MRFC”) opinion
provided by the non-examining state medical consultant, Dr. Yvonne Osborne.
      For the reasons stated below, we AFFIRM.
I.    The Applicable Legal Standards
      A.    Standard of Review
      The Commissioner’s decisions are reviewed by this court only to ascertain
whether (1) they are supported by substantial evidence and (2) whether the
Commissioner used the proper legal standards to evaluate the evidence. Newton
v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Substantial evidence is that which
a reasonable mind might accept as adequate to support a conclusion.
Richardson v. Perales, 402 U.S. 389, 401 (1971). It is more than a scintilla, but
less than a preponderance. Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988).
This court does not reweigh the evidence in the record, try the issues de novo, or
substitute its judgment for the Commissioner’s, even if the evidence weighs
against the Commissioner’s decision. See Newton, 209 F.3d at 452. Conflicts in
the evidence are for the Commissioner and not the courts to resolve. Id. The
ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision,
as adopted by the Appeals Council. Id. at 455.
      B.    The Standard for Entitlement to Social Security Benefits
      The claimant has the burden of proving he has a medically determinable
physical or mental impairment lasting at least twelve months that prevents him
from engaging in substantial gainful activity. Newton, 209 F.3d at 452 (citing
42 U.S.C. § 423(d)(1)(A)). Substantial gainful activity is defined as work activity



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involving significant physical or mental abilities for pay or profit. Id. at 452–53
(citing 20 C.F.R. § 404.1572(a) and (b)).
      The ALJ uses a five-step sequential process to evaluate claims of disability
in which he must determine whether: (1) the claimant is not working in
substantial gainful activity; (2) the claimant has a severe impairment; (3) the
claimant’s impairment meets or equals a listed impairment; (4) the impairment
prevents the claimant from doing past relevant work; and (5) the impairment
prevents the claimant from doing any other work. Id. at 453 (citing 20 C.F.R. §
404.1520). The claimant bears the burden of proof on the first four steps, and
the burden shifts to the Commissioner for the fifth step. Thus, the claimant
must show first that she is no longer capable of performing her past relevant
work. Id. (citing 20 C.F.R. § 404.1520(e)). If the claimant satisfies this burden,
then the Commissioner must show that the claimant is capable of engaging in
some type of alternative work that exists in the national economy. Id. (citing
Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987)).                Once the
Commissioner makes this showing, the burden of proof shifts back to the
claimant to rebut this finding. Id. (citing Chaparro, 815 F.2d at 1010). A finding
that the claimant is not disabled at any step is conclusive and ends the inquiry.
Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (citing Greenspan v.
Shalala, 38 F.3d 232, 235 (5th Cir. 1994)).
II.   The ALJ’s Consideration of the Opinions of Roy and Bischoff
      In a letter dated June 7, 2006, Dr. Kennison Roy, a psychiatrist who had
been treating Thibodeaux, opined that Thibodeaux displayed symptoms of severe
depression when Roy first began seeing Thibodeaux in early 2003, and that
further evaluation and examination indicated an attention deficit disorder. Roy
stated that medication was ineffective and Thibodeaux’s symptoms of depression
remained, his thought processes were scattered, and his sleep was disturbed
such that he was barely functional. Roy stated that he diagnosed Thibodeaux

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with bipolar disorder in February 2005, and that Thibodeaux exhibited a
“dramatic” positive response to Geodon, a medication used by some doctors to
treat bipolar disorder.     Roy opined that Thibodeaux was “psychiatrically
disabled” from January 2003 through mid 2005, and “his impairment prevented
him from sustaining full time gainful work activity over any significant period
of time between those dates.”
        In a letter dated April 20, 2005, William Bischoff, a social worker who had
been Thibodeaux’s therapist for almost three years, described Thibodeaux’s
troubled personal life and employment history, his long history of depression and
related alcohol dependence, and his difficulties remaining awake and focused at
work.     Bischoff opined that Thibodeaux suffered from depression, alcohol
dependence, and a sleep disorder. He also opined that “another possibility that
merits consideration” was that Thibodeaux suffered from bipolar disorder, and
that the extensiveness of Thibodeaux’s depression “may have hidden” it.
Bischoff opined that Thibodeaux’s clinical history showed that his cognitive
functioning, memory, sustained concentration and persistence, and social
interaction/adaptation were significantly to severely affected, and that these
deficiencies can affect the quantity and quality of performance of specific work-
related activities, and that the sudden emergence of Thibodeaux’s sleep disorder
“presents a dangerous implication for the execution of [specific work activities].”
        The ALJ found that the evidence did not support the opinions of Roy and
Bischoff because: (1) Thibodeaux did not seek a level of treatment commensurate
with the alleged severity of his disability, specifically that his treatment only
consisted of undergoing sleep studies in March, May, and December 2003,
visiting Roy occasionally for medication management, and visiting Bischoff; (2)
on September 11, 2003, Roy recommended that Thibodeaux begin a job search
because he seemed able to return to the workplace; (3) Thibodeaux met the
conditions for unemployment benefits from September 2003 through April 2004,

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specifically that he was ready, willing, and able to work, and attended daily AA
meetings; and (4) Thibodeaux’s claim that he was cured of his disability almost
immediately after he began taking the medication Geodon was not credible. The
ALJ conceded that the evidence showed that Thibodeaux possessed some mental
limitations during the claimed period of disability, but based on the entire
record, including opinion evidence from other medical experts, found that
Thibodeaux retained the ability to perform full-time, sustained work activity at
all times during that period, and that his claimed symptoms and limitations
were exaggerated and not corroborated by the evidence. The ALJ cited a medical
opinion provided on August 18, 2003 by neurologist Mossadiq Jaffri, who
examined Thibodeaux and opined that his medical history did not reveal a
neurological deficit, that he did not suffer from narcolepsy, and that his
excessive sleepiness resulted in an impairment that was “mild to moderate” and
not significant enough to justify disability. The ALJ also cited a medical opinion
provided by psychiatrist Gregory Paul, who examined Thibodeaux on June 7,
2005. Paul opined that Thibodeaux should continue to follow up with his current
outpatient treatment for depression and alcohol dependence, that his medical
history was not consistent with bipolar disorder, and that he did not currently
appear to have a psychiatric disorder that would impair him from functioning
acceptably in some type of work environment. Paul noted that Thibodeaux
reported that medication had been very effective in treating his insomnia.
      The ALJ has sole responsibility for determining the claimant’s disability
status. Newton v. Apfel, 209 F.3d at 455 (5th Cir. 2000). However, the medical
opinion of a treating physician who is familiar with the claimant’s impairments,
treatments, and responses, should ordinarily be accorded great weight in
determining disability. Id. at 456–58. The ALJ must show good cause for
assigning a treating physician’s medical opinions little or no weight, such as by
showing that the opinion is conclusory, unsupported by medically acceptable

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clinical laboratory diagnostic techniques, or is otherwise unsupported by the
evidence. Greenspan, 38 F.3d at 237. Absent reliable medical evidence from a
treating or examining physician controverting the claimant’s treating specialist,
an ALJ may reject the medical opinion of the treating physician only if the ALJ
performs a detailed analysis of the treating physician’s views under the criteria
set forth in 20 C.F.R. § 404.1527(d)(2), including: (1) the physician’s length of
treatment of the claimant; (2) the physician’s frequency of examination; (3) the
nature and extent of the treatment relationship; (4) the support of the
physician’s opinion afforded by the medical evidence of record; (5) the
consistency of the opinion with the record as a whole; and (6) the specialization
of the treating physician. Newton, 209 F.3d at 453, 456. A determination by a
treating physician that an applicant is “disabled” or “unable to work” is not a
medical opinion entitled to deference, but rather a legal conclusion “reserved to
the Commissioner.” Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir. 2003).
      Thibodeaux contends that the ALJ failed to show good cause for assigning
little or no weight to the opinions of Roy and Bischoff because the ALJ did not
explain what was inadequate about the treatment that Thibodeaux sought, or
what additional treatment he could have sought. However, as discussed above,
the ALJ’s view that a person with Thibodeaux’s alleged symptoms and
limitations would have sought more intensive treatment was only one of a
number of reasons that the ALJ provided in explaining why the evidence did not
support those opinions. The ALJ also based this finding on the fact that on
September 11, 2003, Roy recommended that Thibodeaux begin a job search
because he seemed able to return to the workplace; that Thibodeaux met the
conditions for unemployment benefits from September 2003 through April 2004
and attended daily AA meetings; and that Thibodeaux’s claim that he was cured
of his disability almost immediately after he began taking the medication
Geodon was not credible.

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      Thibodeaux also contends that the ALJ failed to properly weigh the
opinions of Roy and Bischoff because the ALJ failed to analyze those opinions
using the criteria set forth in 20 C.F.R. § 404.1527(d)(2), and there was no
reliable medical evidence from a treating or examining physician controverting
the those opinions because Paul rendered his opinion after the claimed period
of disability, and Jaffri evaluated Thibodeaux’s neurological, not psychiatric,
condition, and did so only four months into the claimed disability period.
      The ALJ credited Roy’s opinion regarding Thibodeaux’s general symptoms,
but not Roy’s opinion concerning the severity of those symptoms and the
limitations they imposed on Thibodeaux, specifically that Thibodeaux’s “sleep
was disturbed such that he was barely functional.” Roy’s opinion concerning the
severity of Thibodeaux’s symptoms before he began using Geodon was directly
contradicted by Jaffri’s August 18, 2003 opinion that Thibodeaux did not suffer
from narcolepsy and that his excessive sleepiness resulted in an impairment that
was “mild to moderate.” Jaffri assessed the severity of Thibodeaux’s excessive
sleepiness generally. His opinion was not limited to evaluating the severity of
any neurological deficit, and, indeed, he opined that there was no evidence of
such a deficit. Although Thibodeaux claims that his symptoms were the product
of a psychiatric, not neurological, condition, the dispute between Roy and Jaffri
concerned the general severity of the observed symptoms. Even if Roy’s opinion
as to the severity of Thibodeaux’s symptoms should have been accorded greater
weight as a specialist, Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994), the
medical opinion of Jaffri was still reliable medical evidence from a treating or
examining physician controverting the claimant’s treating specialist, meaning
that the ALJ was not required to apply the criteria set forth in 20 C.F.R. §
404.1527(d)(2).   See Newton, 209 F.3d at 453, 456.       Substantial evidence,
including Jaffri’s medical opinion, the fact that on September 11, 2003, Roy
recommended that Thibodeaux begin a job search, and the fact that Thibodeaux

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met the conditions for unemployment benefits from September 2003 through
April 2004 and attended daily AA meetings, supports the ALJ’s finding that
there was good cause to disregard Roy’s opinion on the severity of Thibodeaux’s
impairment. Also, Roy’s opinion that Thibodeaux “was psychiatrically disabled”
from January 2003 through mid 2005, and that “his impairment prevented him
from sustaining full time gainful work activity over any significant period of time
between those dates,” is a legal conclusion not entitled to any deference. See
Frank, 326 F.3d at 620.
      The opinion provided by Bischoff is not entitled to the same deference as
the opinion provided by Roy because Bischoff is a therapist, which is not an
“acceptable medical source” under the social security regulations. 20 C.F.R. §
404.1513(a), (d)(1); see also Lacroix v. Barnhart, 465 F.3d 881, 885–86 (8th Cir.
2006).   Only “acceptable medical sources” can establish the existence of a
medically determinable impairment, give medical opinions, and be considered
treating sources whose medical opinions may be entitled to controlling weight.
Social Security Ruling 06-03p, 71 Fed. Reg. 45593-03, 2006 WL 2329939 (Aug.
9, 2006); see also Frantz v. Astrue, 509 F.3d 1299, 1301 (10th Cir. 2007)
(discussing SSR 06-03p and related regulations); Sloan v. Astrue, 499 F.3d 883,
888 (8th Cir. 2007) (same); Cruse v. Comm’r of Soc. Sec., 502 F.3d 532, 541 (6th
Cir. 2007) (same); Lacroix, 465 F.3d at 885–86 (same). Substantial evidence
supports the ALJ’s finding that the evidence did not support Bischoff’s opinion.
See Lacroix, 465 F.3d at 885–86 (holding that although therapists’ opinions were
not entitled to treating source weight, they were entitled to consideration).
Bischoff’s opinion concerning the severity of Thibodeaux’s sleep disorder,
specifically that it “present[ed] a dangerous implication for the execution of
[specific work activities],” was contradicted by Jaffri’s medical opinion.
Bischoff’s opinion concerning the severity of Thibodeaux’s symptoms apart from
his insomnia are contradicted by the medical opinion of Paul, who opined that

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Thibodeaux’s medical history was not consistent with bipolar disorder, and that
following the amelioration of his insomnia, he did not appear to have a
psychiatric disorder that would impair him from functioning acceptably in some
type of work environment. Although Paul examined Thibodeaux after he had
begun using Geodon, that medication addressed only Thibodeaux’s insomnia
according to   Paul, not his depression and alcohol dependence, and Paul’s
opinion on bipolar disorder was based not only on his examination but on
Thibodeaux’s medical history. Also, as discussed above, on September 11, 2003,
Roy recommended that Thibodeaux begin a job search, and Thibodeaux met the
conditions for unemployment benefits from September 2003 through April 2004
and attended daily AA meetings.
       The ALJ properly weighed the opinions of Roy and Bischoff.
III.   The ALJ’s Alleged Misinterpretation of Osborne’s Opinion
       Thibodeaux argues that the ALJ misinterpreted the mental residual
functional capacity (“MRFC”) opinion provided by the non-examining state
medical consultant, Dr. Yvonne Osborne, and that therefore the ALJ’s denial of
benefits was not supported by substantial evidence because the ALJ cited
Osborne’s opinion in determining that Thibodeaux was not disabled.
Thibodeaux asserts that the ALJ interpreted Osborne’s description of
Thibodeaux’s limitations as “moderate” as indicating a less significant
impairment than Osborne intended. Specifically, Thibodeaux contends that the
ALJ interpreted Osborne’s description of the limitations on Thibodeaux’s ability
to carry out repetitive tasks and detailed instructions as “moderate” to mean
that Thibodeaux’s ability to do so was satisfactory, and that this interpretation
is at odds with Osborne’s statement that Thibodeaux’s capabilities included
implementing “some semi-complex instructions” and completing “simple
repetitive tasks.”



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      The ALJ clearly did not misinterpret Osborne’s opinion. The full text of
the portion of Osborne’s opinion cited by Thibodeaux is as follows:
      Mr Thibodeaux [is] capable of sustaining the basic mental demands
      of work. He is able to understand, remember, and implement
      simple instructions and some semi-complex instructions. He is able
      to sustain attention for at least two hours at a time, pace work
      activities, and persist on task to the extent typically require[d] to
      complete simple repetitive tasks. He is able to accept and respond
      to correction from supervisors; and he is able to get along with
      coworkers. Mr. Thibodeaux can identify and avoid hazards in the
      workplace, and he can adjust to changes in job requirements and
      settings. He is able to perform at least routine repetitive tasks.
Osborne’s description of Thibodeaux’s capabilities as including implementing
“some semi-complex instructions” and completing “simple repetitive tasks,”
among other capabilities, was intended to illustrate Osborne’s overall conclusion
that “Mr Thibodeaux [is] capable of sustaining the basic mental demands of
work.” That opinion clearly supports the ALJ’s determination that Thibodeaux
was capable of working and was not disabled during the claimed period of
disability.   The ALJ did not misinterpret Osborne’s opinion concerning
Thibodeaux’s capacity to work.
IV.   Conclusion
      The ALJ employed the proper legal standards, and the ALJ’s decision is
supported by substantial evidence.      The judgment of the district court is
AFFIRMED.




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