     Case: 11-20078     Document: 00511599232         Page: 1     Date Filed: 09/12/2011




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

                                                                            FILED
                                                                        September 12, 2011

                                     No. 11-20078                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



GARABED MELIK-KERAMIAN, on behalf of Vachiak Melik-Keramian,
    deceased,

                                                  Plaintiff - Appellant
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                                                  Defendant - Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-1232


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
        Garabed Melik-Keramian (“Garabed”) appeals the district court’s
judgment affirming the Commissioner of Social Security’s decision that
Garabed’s deceased father, Vachiak Melik-Keramian (“Vachiak”), was not
entitled to Social Security disability benefits. Because the Commissioner applied




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-20078

the correct legal standards and because there is substantial evidence to support
the decision, we affirm.
                                       I.
      In June 2004, Vachiak was diagnosed with chronic hepatitis C, which he
contracted during an earlier blood transfusion. On August 24, 2005, Vachiak
was also diagnosed with cirrhosis. Vachiak began treatment with Dr. Patel on
October 11, 2005. On August 9, 2006, Patel opined that Vachiak was not
responding at all with the treatment. This was Vachiak’s final visit with Patel.
Vachiak was subsequently seen by a string of doctors, including Dr. Botero, who
treated Vachiak from January 14, 2008 until December 8, 2008.
      Vachiak filed for Social Security disability benefits on March 23, 2007,
alleging that his disability began February 1, 2005. As evidence of his alleged
disability, Vachiak relied on a liver disease impairment questionnaire completed
by Dr. Patel, which diagnosed Vachiak as having hepatitis C. Patel identified
clinical findings of nausea/vomiting, signs of encephalopathy, and weakness. He
reported Vachiak’s symptoms as body aches, malaise, increased abdominal girth
and edema, lower limb edema, and fatigue. Dr. Patel opined that in an eight
hour workday, Vachiak could sit two hours total and stand or walk less than one
hour total. He further opined that Vachiak needed to get up and move every
thirty minutes when sitting and could not lift or carry even five pounds. Patel
reported that Vachiak had a memory impairment and symptoms including pain
and fatigue that would interfere with his attention and concentration.
      At a hearing before the ALJ, Vachiak testified that he could climb a flight
of stairs, launder clothes, use a computer, shop at a grocery store, and get his
teenage son up for school. He testified that he could cook, but could not vacuum
because of back pain; his son did most of the housework. A vocational expert
testified, in response to a hypothetical question posed by the ALJ, that a person
of Vachiak’s age, education, and work history who was limited to sedentary work

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                                     No. 11-20078

and only occasional climbing, balancing, and stooping could work as a
receptionist.1 The vocational expert further testified that if Vachiak’s testimony
was found to be credible, he could not perform any work.
          After the hearing, the ALJ found that Vachiak’s testimony was only
partially credible with respect to his daily activities. The ALJ further found that
the opinion of Dr. Patel was not entitled to controlling weight because it was not
supported by objective medical findings.            Ultimately, the ALJ found that
Vachiak was not disabled. On August 1, 2008, Vachiak requested review of the
ALJ’s decision. He submitted as new evidence a questionnaire filled out by Dr.
Botero. Unfortunately, Vachiak died on June 5, 2009. Garabed, Vachiak’s son,
became the substituted party. The Appeals Council denied Garabed’s request
for review on February 18, 2010, making the ALJ’s determination the final
decision of the Commissioner. Garabed sought judicial review of the final
decision. On December 29, 2010, the district court entered a final judgment
affirming the Commissioner’s decision and dismissing Garabed’s complaint with
prejudice. Garabed timely filed a notice of appeal.
                                            II.
       On appeal, Garabed contends that the ALJ erred by relying on the
evidence supplied by a non-examining, non-specialist rather than Vachiak’s
treating physician. He also contends that the ALJ erred by focusing on only
some elements of the record, and focusing on marginal daily activities to
conclude that Vachiak could perform in a competitive work environment.
Finally, Garabed argues that the Appeals Council and district court failed to
consider relevant new evidence when reviewing the ALJ’s decision.




      1
        Vachiak most recently worked as a receptionist for his sister's mortgage company, a
position he held for two years. This position was classified by the vocational expert as
sedentary and semi-skilled.

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                                  No. 11-20078

      We review the Commissioner’s decision only to ascertain whether it is
supported by substantial evidence and whether the Commissioner applied the
proper legal standards in evaluating the evidence. Newton v. Apfel, 209 F.3d
448, 452 (5th Cir. 2000). Substantial evidence is evidence that “a reasonable
mind might accept as adequate to support a conclusion.” Audler v. Astrue, 501
F.3d 446, 447 (5th Cir. 2007). We may not re-weigh the evidence or substitute
our judgment for that of the Commissioner, even if the evidence weighs against
the Commissioner’s decisions.
      The gravamen of Vachiak’s complaint is that the ALJ did not give
controlling weight to a March 14, 2008 opinion from Dr. Patel stating that
Vachiak could sit for two hours out of an eight-hour day, stand and walk for less
than an hour out of an eight-hour day, and never lift or carry. Patel’s opinion
also stated that Vachiak had memory impairment, problems with concentration,
and constant fatigue. Although Patel wrote the opinion in 2008, the record
reflects that he last examined Vachiak on August 9, 2006. Examinations by
attending physicians in the interim time frame are inconsistent with Patel’s
2008 opinion. For example, notes from an August 29, 2006 examination of
Vachiak reflect that he was “feeling well other than mild fatigue and some
pruritus.”   On October 5, 2006, Vachiak’s attending physician noted that
Vachiak was “currently stable without complaint.” On a September 10, 2007
visit to a doctor, Vachiak denied that he was in pain. Doctors also noted that
Vachiak’s liver was non-tender, his muscle strength was normal, he had a full
range of motion in his upper and lower extremities, and he had a normal gait
with no limp. Similarly, a specialist assessed Vachiak and noted that he had
severely slowed ability to acquire verbal information and a mild overall level of
cognitive impairment, but noted that he tested within normal limits for his age
and education. Further, Vachiak told his doctor, and later testified, that he
could climb a flight of stairs, launder clothes, use a computer, shop at a grocery

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                                 No. 11-20078

store, and get his teenage son up for work. In the light of these factors, and a
body of additional medical evidence in the record, we affirm the ALJ’s decision
to rely on evidence provided by non-treating experts because Patel’s opinion was
inconsistent with the clinical notes of other treating physicians, a specialist’s
assessment, and Vachiak’s testimony.
      Garabed also contends that the Appeals Council and district court failed
to consider relevant new evidence—a questionnaire submitted by Dr.
Botero—when reviewing the ALJ’s decision. Both the Appeals Council and
magistrate judge explicitly considered Vachiak’s additional evidence, but found
that it did not provide a basis for changing the ALJ’s decision.
                                      III.
      For the reasons outlined above, we conclude that Commissioner’s decision
is supported by substantial evidence and resulted from application of the
appropriate legal standards. Accordingly, the decision of the district court
affirming the Commissioner’s denial of benefits is
                                                                   AFFIRMED.




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