   Case: 09-60916       Document: 00511215703          Page: 1    Date Filed: 08/26/2010




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

                                                 FILED
                                                                           August 26, 2010
                                     No. 09-60916
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk




ROY GARTH,

                                                   Plaintiff-Appellant,

versus

MICHAEL J. ASTRUE, Commissioner of Social Security,

                                                   Defendant-Appellee.




                    Appeal from the United States District Court
                      for the Northern District of Mississippi
                              USDC No. 1:08-CV-280




Before DAVIS, SMITH, and DENNIS, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Roy Garth appeals a judgment upholding the decision of an administrative
law judge (“ALJ”) denying his claim for Social Security disability benefits. Find-
ing no error, we 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-60916



                                             I.
       Garth was injured in an automobile accident in March 2004 in which he
sustained, along with temporary spinal trauma, a displaced glanoid and scapular
fracture of the left shoulder.1 Dr. Kim Stimpson performed surgery on the shoul-
der, and Garth was referred to physical therapy. Throughout 2004, he visited
both Stimpson and his primary physician, Dr. Ricky Parker. Both doctors told
Garth his shoulder was healing and that he should “push” his range of motion
during physical therapy.2
       In March 2005, Garth complained of renewed pain and weakness in his
left arm. After an MRI revealed a spur and bursitis, Stimpson performed arthro-
scopic surgery in early May 2005. In late May, Garth told the doctor he was do-
ing “quite well,” although his shoulder “still gives him some problems.” Stimp-
son’s report indicated that as of July 2005, Garth was “totally temporarily dis-
abled.”
       In November 2005, Garth underwent a functional-capabilities evaluation
(“FCE”). A physical therapist, Renee Willis, performed the evaluation and noted
that Garth tolerated sitting for just 24 minutes and standing for just 18 minutes
and that any use of the left arm would result in an increase in blood pressure
and pain levels. She concluded that he was unable to do even sedentary work.
       From December 2005 to November 2007, Garth saw doctors for a variety
of reasons, including reflux, occasional gout flares in his left knee, cellulitis in
his toe, and reduced strength and range of motion in his left shoulder. He told



       1
        The emergency room report indicated Garth sustained the following traumas: cervical
spine, dorsal spine, lumbosacral spine, chest, elbow, forearm, and hand. Scans and X-rays
came back negative on his spine, pelvis, left hand, and arm.
       2
       At various times, the doctors told Garth he was “doing better,” “coming along nicely,”
and had an “acceptable” range of motion in his shoulder.

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                                        No. 09-60916

doctors he had “mild aching” when moving his shoulder through a limited range
of motion and had trouble sleeping because of pain. He refused both prophylac-
tic treatment for the gout and a second surgery on his shoulder. In November
2007, he told Parker that his shoulder still hurt but was controlled with Lortab.3
       Garth applied for disability under Title II of the Social Security Act, 42
U.S.C. §§401 et seq., in February 2006. His initial request was denied adminis-
tratively and on reconsideration.
       Before Garth’s hearing with the ALJ in January 2008, Willis completed a
form indicating Garth could not lift ten pounds, stand for more than about twen-
ty minutes in a day, or sit for more than about an hour and a half and could only
occasionally perform reaching, handling, fingering, or feeling. This form was
based on the results of her 2005 FCE.
       During the hearing, Garth contradicted the FCE, saying he could comfort-
ably lift twenty pounds with his right arm and could use his left arm for assis-
tance. He also contradicted the FCE on the issue of mobility, saying he could
stand for an hour and sit for two hours and did not have any problems bending
over, stooping, or climbing a flight of stairs.
       The ALJ applied this circuit’s five-step test for disability and found that
Garth had impairments that did not meet or equal any qualifying impairment
in 20 C.F.R. pt. 404, subpt. P, app. 1., and that he retained the residual function-
al ability to perform jobs he had held in the past and jobs that do not require
heavy lifting. Accordingly, the ALJ found that Garth was not disabled.
       Garth requested review by the Appeals Council.                   After considering
additional evidence Garth had submitted,4 the Appeals Council denied the re


       3
        Garth states in the record that Lortab, a painkiller, reduced the pain in his shoulder
from a “7” to a “3” (on a 1-10 scale) for four to five hours.
       4
           On February 8, 2008, Parker completed the same form Willis earlier had completed.
                                                                                (continued...)

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                                       No. 09-60916

quest for further review.
       Garth sued in federal court pursuant to 42 U.S.C. § 405(g). The court
sustained the ALJ’s decision that Garth was not disabled.


                                              II.
       The Commissioner’s determination that the claimant is not disabled will
be affirmed unless that determination is not supported by substantial evidence
or involved an erroneous application of legal standards. Carey v. Apfel, 230 F.3d
131, 135 (5th Cir. 2000). Substantial evidence is something 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. Id. “[W]e may not re-
weigh the evidence in the record, nor try the issues de novo, nor substitute our
judgment for that of the [Commissioner], even if the evidence preponderates
against the [Commissioner’s] decision.” Brown v. Apfel, 192 F.3d 492 (5th Cir.
1999) (quoting Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir.1988)). “The find-
ings of the Secretary as to any fact, if supported by substantial evidence, shall
be conclusive . . . .” Richardson v. Perales, 402 U.S. 389, 390 (1971) (quoting
42 U.S.C. § 405(g)).


                                              III.
       Five requirements must be met to support a finding that a Social Security
disability benefits claimant is, in fact, “disabled” and entitled to benefits.5 Carey,


       4
        (...continued)
Basing his information on Willis’s FCE, which Garth contradicted in the first hearing, Parker
wrote that Garth could stand for just 20 minutes and sit for 1.5 hours and was limited to only
occasional reaching, handling, and the like.
       5
        The five steps, in summary, provide that to be disabled, (1) the claimant must not be
presently working at any substantial gainful activity; (2) he must have an impairment or com-
bination of impairments that are severe, in the sense that they significantly limit his physical
                                                                                  (continued...)

                                               4
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230 F.3d at 131. “The burden of proof is upon the claimant to establish each of
the first four prerequisites to finding of ‘disability’ under the pertinent five-part
test; if claimant acquits this responsibility, burden then shifts to Commissioner
to show that there is other gainful employment that claimant is capable of per-
forming in spite of his existing impairments.” Id. If the Commissioner satisfies
the burden of showing that there is other gainful employment that the claimant
is capable of performing in spite of his existing impairments, claimant must then
prove he in fact cannot perform that alternate work. Id.
       Garth offers four reasons why we should overturn the decision: (1) The
ALJ gave too little weight to his primary physician’s opinion, (2) the ALJ erred
in determining that Garth was not credible and failed to explain why he decided
that; (3) the Commissioner’s decision to uphold the ALJ’s finding is not support-
ed by the evidence, and (4) the ALJ used an improper hypothetical that did not
take into account the side effects of drugs that Garth was taking.
       We turn first to the issue of Garth’s primary physician. Garth claims that
the ALJ ignored the opinion of Parker, his treating physician. Garth overlooks,
however, the fact that Parker’s opinion was contained on a form that was not
presented at the initial hearing. Nearly a month had passed between the ALJ’s
decision’s being issued and Parker’s writing his opinion.
       Despite Parker’s opinion’s not being available to the ALJ in the initial
hearing, it was available to the Appeals Council. As stated before, this court will
review the ALJ’s and Appeals Council’s decisions only for substantial evidence.
Parker’s February 8 opinion contradicted both his own treatment notes and



       5
         (...continued)
or mental ability to do basic work activities; (3) the impairment must meet or equal an impair-
ment listed in an appendix to the Social Security regulations; (4) the impairment must prevent
the claimant from returning to his past relevant work; and (5) the impairment must prevent
him from doing any relevant work, in light of his residual functional capacity, age, education,
and work experience. 20 C.F.R. § 404.1520(a)(4) (2009).

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Garth’s admissions to the ALJ. Those inconsistencies are substantial evidence
on which the ALJ could have based his decision.
       Second, on the issue of Garth’s credibility, Garth’s admissions to the ALJ
contradicted treatment reports from several doctors. Garth could lift more and
move better than their reports indicated.6 Although our role on judicial review
does not include speculation on how the ALJ weighed the medical-opinion evi-
dence, those admissions, coupled with the vocational expert’s opinion, provide
substantial evidence for the ALJ to rely on.
       Third, we find no error by the Commissioner in upholding the ALJ’s deter-
mination that Garth is not disabled. Relying on the evidence available to him,
the ALJ reached a determination that is supported by substantial evidence.
       Finally, Garth asserts that the ALJ’s hypothetical question regarding re-
sidual functionality was improper, because the ALJ did not take into account the
side effects of Garth’s prescription medication. But the record indicates that
Garth has never complained to his doctors of drowsiness or any other side effect
from the medication before his hearing with the ALJ. The ALJ pointed out to
Garth that the hypothetical would not include theoretical limitations or side ef-
fects, but only those contained in the record. On this basis, there is no error in
the ALJ’s decision.
       AFFIRMED.




       6
        Garth admitted, among other things, that he could climb stairs, stoop, and use his left
hand as support while lifting.

                                              6
