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

                                                                            FILED
                                                                         October 15, 2007

                                     No. 07-30491                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


DANIEL C. JENKINS

                                                  Plaintiff-Appellant
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 1:05-CV-2112


Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
       The Commissioner of Social Security denied Daniel C. Jenkins’ claim for
Disability Insurance Benefits and/or Supplemental Security Income benefits,
and the district court affirmed the decision. As discussed infra, the denial of
benefits is supported by substantial evidence and is in accordance with the law.
       Jenkins filed an application for disability insurance benefits on 31 July
2000, claiming a work-related leg injury in 1993 rendered him unable to work.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30491

Upon the claim’s being denied, Jenkins requested a hearing before an
Administrative Law Judge (ALJ). Benefits were denied by the ALJ, but the
Appeals Council remanded the case for further proceedings.          On remand,
benefits were again denied; again, the Appeals Council remanded the case. The
third ALJ hearing also resulted in a denial of benefits, which was upheld by the
Appeals Council.
      As a result, Jenkins filed this action in district court. The district judge
adopted the magistrate judge’s report and recommendation and affirmed.
      The Commissioner’s decision is reviewed “only to ascertain whether (1) the
final decision is 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) (citations omitted).
Substantial evidence is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion”, Richardson v. Perales, 402 U.S. 389,
401 (1971) (internal quotation marks omitted); it must be “more than a scintilla,
but less than a preponderance”. Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir.
1988).   Jenkins asserts: the ALJ applied improper legal standards; and his
determination is not supported by substantial evidence.
      Jenkins first maintains the ALJ did not properly consider, and give
weight to, the testimony of two vocational-rehabilitation experts. Regarding step
5 of the well-established sequential evaluation process, the experts opined, in
response to hypothetical questions posed by Jenkins’ counsel: a person who
needed to take breaks every 30 minutes for an indefinite duration could not find
work in significant numbers in the national economy.           See 20 C.F.R. §§
416.920(a)(4)(v), 416.960(c)(1). The ALJ, however, did not give credence to that
testimony.
      When hypothetical testimony by a vocational expert is unsupported by the
evidence, the ALJ may properly disregard that testimony. Owens v. Heckler, 770

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                                  No. 07-30491

F.2d 1276, 1282 (5th Cir. 1985). Jenkins’ treating physician, Dr. Waldman,
whose opinion is afforded considerable weight, 20 C.F.R. § 404.1527(d)(2), opined
Jenkins could sit for prolonged periods of time, so long as his leg was positioned
in a manner he found desirable. The opinions of Jenkins’ other examining
physicians reiterated Dr. Waldman’s findings. Two specialists, whose opinions
are also afforded additional weight, 20 C.F.R. § 404.1527(d)(5), found Jenkins’
ability to perform work that required sitting would not be impaired. Because
there is substantial evidence that the hypothetical questions posed to the
vocational experts were unsupported by medical evidence, the ALJ’s decision to
disregard their testimony was proper.
      The ALJ rejected Jenkins’ contention that his injury caused him
debilitating pain. Jenkins contends this ruling improperly discredited his
testimony. “It is within the ALJ's discretion to determine the disabling nature
of a claimant's pain, and the ALJ's determination is entitled to considerable
deference.” Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001) (citations
omitted).   To this end, the ALJ is required to make “affirmative findings
regarding a claimant's subjective complaints [of pain]”, Falco v. Shalala, 27 F.3d
160, 163 (5th Cir. 1994), and such findings “should be upheld if supported by
substantial evidence”. Chambliss, 269 F.3d at 522 (citation omitted).
      Substantial evidence exists to support the ALJ’s discrediting Jenkins’
subjective complaints of pain. As the ALJ found, Jenkins takes only minor pain
medication consisting of aspirin and Naprosyn, a non-steroidal anti-
inflammatory agent. Moreover, the ALJ found no evidence of the Naprosyn
prescription’s being filled since 2002. In addition, Jenkins’ treating physician
released him to do sedentary work as far back as 1998. Finally, the ALJ found
Jenkins’ failure to receive further treatment undercut his subjective claims of
pain. On this point, Jenkins asserts the ALJ failed to recognize that Jenkins’
physician, Dr. Drury, found Jenkins had reached “maximum medical

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improvement” and did not require further treatment.            This assertion is
unavailing.   Having reached “maximum medical improvement” does not
corroborate Jenkins’ claims; there is no evidence Jenkins ever complained to Dr.
Drury of ongoing pain after his initial consultation in 2003 or sought a refill of
his Naprosyn prescription. In the light of these factors, as well as the deference
afforded the ALJ’s determinations regarding disabling pain vel non, there is
substantial evidence to support the ALJ’s decision to discredit Jenkins’
testimony.
      For his final contention, Jenkins contends the ALJ erroneously used
Jenkins’ 1998 earnings to discredit his assertion that he had done only minimal
lawn-service work since his last ALJ hearing. Assuming, arguendo, the ALJ
erred in considering those earnings in determining Jenkins’ credibility, the error
was harmless. See Audler v. Astrue, No. 07-60187, 2007 WL 2745001, at *2 (5th
Cir. Sept. 21, 2007) (citing Morris v. Bowen, 864 F.2d 333, 334 (5th Cir. 1988)).
As discussed, the ALJ’s credibility determination was based on substantial
evidence. Therefore, it is immaterial whether it was error additionally to
consider the 1998 earnings on that credibility point.
      AFFIRMED.




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