     Case: 09-51145 Document: 00511298725 Page: 1 Date Filed: 11/18/2010




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

                                                 FILED
                                                                         November 18, 2010

                                     No. 09-51145                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JIMMY L. PRICE

                                                   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. 6:08-CV-309


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Jimmy Price appeals the district court’s affirmance of
the Commissioner of Social Security’s denial of his claim for Disability Insurance
Benefits under Title II of the Social Security Act and for Supplemental Security
Income under Title XVI of the Social Security Act. Price filed for benefits on
account of diabetes, joint pain, a bad back, fatigue, depression, high blood
pressure, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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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                                         No. 09-51145

upheld by the ALJ, and Price requested review of the ALJ’s decision by the
Appeals Council, which refused to reverse the decision of the ALJ. Price sought
judicial review in the district court, which, relying on the recommendation of the
magistrate judge, affirmed the decision of the ALJ. Price timely appealed.
       Our review of the denial of disability benefits, like that of the district
court, is limited to determining whether substantial record evidence exists to
support the Commissioner’s decision to deny benefits and whether the ALJ
misapplied the law.1 We will neither make credibility determinations nor re-
weigh the evidence.2 The ALJ does not need to comment on every piece of
evidence, but only must build an accurate and logical bridge between the
evidence and the final determination.3 The ALJ must consider the testimony of
the claimant, but need not accept the claimant’s contention as to the severity of
his condition.4
       The ALJ determined that Price was able to engage in substantial gainful
activity because he could perform work in light of his residual functional
capacity (RFC).5 Sufficient evidence supports the ALJ’s determination that Price
had the residual capacity to perform work. The ALJ engaged all of the relevant
evidence, made credibility determinations, and explained reasons for discounting
some of the evidence in the record.                  We will not second guess these
determinations on appeal.




       1
           Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1994).
       2
           Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999).
       3
           Glomski v. Massanari, 172 F. Supp. 2d 1079, 1082 (E.D. Wis. 2001).
       4
           See Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991).
       5
        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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                                         No. 09-51145

       The ALJ specifically noted Price’s back and leg pain, as well as Price’s
testimony concerning his limitations.             The ALJ did not find the testimony
entirely persuasive, noting that Price can cook, do housework, and drive.6 The
ALJ observed that an MRI in 2007 evidenced only mild degeneration in the
lumbar spine. The ALJ discussed how Price responded positively to Ultram,
thus determining that Price’s claims of the intensity of his pain were not entirely
credible.     The ALJ also discussed the pain and limitations in Price’s right
shoulder, and noted that treatment has been somewhat successful and that Price
himself noted improvement in his shoulder functioning. The ALJ mentioned
Price’s sleeping problems and reasonably concluded that Price should not
perform exertionally demanding work or work involving the lifting or carrying
of items in excess of 20 pounds. The ALJ also addressed Price’s claim that he
had to keep his feet elevated and found these claims unsupported by the record
and less than credible. Neither did the ALJ believe that Price’s depression was
significantly limiting, noting that Price had stated that psychotropic drugs had
improved his depression and that Price was able to function while living on his
own.
       We do not agree with Price that the ALJ failed to rely on the reports and
opinions of the treating physicians. It is legal error for an ALJ to give more
weight to a non-treating physician than to a treating physician,7 but the ALJ
need not give controlling weight to a treating physician’s determination if it is
contradicted by the record.8 Price’s treating doctors do not make any claim that
he is disabled; they merely discuss the symptoms described by Price and



       6
          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).
       7
           See Wade v. Apfel, 1998 WL 874853 at *3 (S.D.N.Y. 1998).
       8
           See 20 C.F.R. § 404.1527(d)(2).

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                                       No. 09-51145

addressed by the ALJ.          In light of the record as a whole, the ALJ could
reasonably have determined Price’s limitations in the way that he did.
       A vocational expert’s opinion must be based on appropriate hypothetical
questions.9 We are convinced that the hypothetical question posed by the ALJ
was appropriate, and thus that the vocational expert’s opinion was sufficient to
constitute substantial evidence.
       AFFIRMED.




       9
         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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