     Case: 13-30946      Document: 00512579621         Page: 1    Date Filed: 03/31/2014




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

                                                                                    FILED
                                    No. 13-30946                              March 31, 2014
                                  Summary Calendar
                                                                               Lyle W. Cayce
                                                                                    Clerk
WILLIAM SCOTT HUSKEY,

                                                 Plaintiff – Appellant
v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

                                                 Defendant – Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 5:09-CV-00057


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       William Scott Huskey filed an application for Social Security Disability
Insurance Benefits in 2006. In 2008, an administrative law judge found him
not disabled, but the United States District Court for the Western District of
Louisiana remanded for consideration of additional evidence of Huskey’s
condition during a specified time period. A second administrative law judge



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 13-30946    Document: 00512579621     Page: 2   Date Filed: 03/31/2014



                                 No. 13-30946
found him not disabled in 2011, a decision the district court affirmed. Because
we conclude substantial evidence in the record supports the decision of the
administrative law judge, we AFFIRM.


              FACTUAL AND PROCEDURAL BACKGROUND
      Huskey was last employed in 1999 as a maintenance painter and had a
long work history in the construction industry. Since 1999, Huskey has
suffered from nerve entrapment, pain and weakness from his waist down his
left leg, and carpal tunnel syndrome. He also had two surgeries to repair an
inguinal hernia that year. Between 1999 and his first administrative hearing
in 2007, Huskey and his treating physicians reported moderate success in
controlling his pain with medication, but also reported that physical and
occupational therapy were only marginally successful.       All of the treating
physicians suggested his ailments precluded working in construction as he had
done in the past. At least two of his treating physicians suggested he could
perform light work, while one treating physician and a vocational specialist
concluded he could perform little or no work at all.
      In 2008, an ALJ determined Huskey was not disabled because, while he
could not return to his work in the construction industry, his residual
functional capacity permitted him to work in other jobs available in the
national economy. Evidence in the record before the ALJ consisted of reports
from Huskey’s several treating physicians throughout the time period from
2000 to 2007 and an independent neurosurgeon’s report on Huskey’s medical
records. The ALJ also noted that Huskey’s own testimony of the severity and
pervasiveness of his pain was somewhat less credible in light of the objective
medical evidence of his condition in the record. Though the magistrate judge
recommended affirming this decision, the district court ordered a remand for
gathering more specific evidence, to be presented by or otherwise obtained from
                                       2
    Case: 13-30946    Document: 00512579621      Page: 3   Date Filed: 03/31/2014



                                  No. 13-30946
a treating physician, of Huskey’s condition as of December 31, 2003, the date
Huskey was last insured for the purposes of determining his eligibility for
benefits. See 20 C.F.R. § 404.130(b).
      After remand, a different ALJ in 2011 concluded Huskey was not
disabled. New evidence included an additional letter from one of Huskey’s
treating physicians written in 2011. The administrative law judge weighed
this evidence against reports from his treating physicians made between 1999
and the end of 2003, ultimately concluding that Huskey’s residual functional
capacity permitted him to perform some jobs in the national economy. After
another report and recommendation by the magistrate judge, the district court
affirmed the ALJ’s conclusions.


                                  DISCUSSION
      We limit our review of denials of disability benefits by ALJ’s to
determining whether the ALJ’s decision is supported by substantial evidence
in the record as a whole and whether the ALJ used the proper legal standards
in evaluating the evidence. Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.
1990).   “Substantial evidence is more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Id. at 1021-22. We do not reweigh
evidence, nor do we substitute our judgment for that of the ALJ. Id. at 1022.
      An applicant for disability benefits has the burden of showing he is
disabled. Id. The Commissioner of the Social Security Administration uses a
five-step, sequential analysis which asks whether: (1) the claimant is currently
working, (2) the claimant has a severe impairment, (3) the impairment meets
or equals an impairment listed in Appendix 1 of the Social Security
regulations, (4) the impairment prevents the claimant from doing past relevant
work, and (5) the impairment prevents the claimant from performing any
                                        3
    Case: 13-30946    Document: 00512579621     Page: 4   Date Filed: 03/31/2014



                                 No. 13-30946
substantial gainful activity. Id. The parties agree that Huskey meets the first
four steps of the analysis. The only issue on appeal is whether Huskey is
capable of performing substantial work.
      Huskey makes two arguments in support of his position that the ALJ’s
decision as to the fifth step was not based on substantial evidence. First, he
argues the ALJ did not properly follow the district court’s remand order
following the first hearing. Second, he argues the ALJ did not give proper
weight to the evidence submitted by treating physician Dr. Majors and that he
placed too much weight on the report of a non-treating specialist, Dr. Woodrow
Janese.
      The district court ordered consideration of additional evidence regarding
Huskey’s condition at the time he was last insured, December 31, 2003. In the
second hearing, Huskey presented such evidence in the form of a second letter
by Dr. Majors, who had submitted a letter containing her opinion of Huskey’s
condition at the first hearing. On appeal, Huskey argues the ALJ failed to
comply with that order because the letter from Dr. Majors was the only new
evidence submitted by a treating physician. Huskey, though, did not raise the
issue of the ALJ’s compliance with the district court’s order before the
magistrate judge or the district court. “[W]e will not consider on appeal an
issue that previously has not been presented to the district judge” unless such
review is “necessary to prevent a miscarriage of justice.”       See Thorton v.
Schweiker, 663 F.2d 1312, 1315 (5th Cir. 1981). Huskey has not explained why
he did not raise this defect before the district court or how our not considering
it would be a miscarriage of justice. Consequently, this argument is waived.
      The Commissioner is to give substantial weight to the “opinions,
diagnoses, and medical evidence of a treating physician who is familiar with
the claimant’s injuries, treatments, and responses.” Myers v. Apfel, 238 F.3d
617, 621 (5th Cir. 2001).       Nonetheless, the ultimate responsibility for
                                       4
    Case: 13-30946    Document: 00512579621      Page: 5   Date Filed: 03/31/2014



                                 No. 13-30946
determining a claimant’s disability status lies with the ALJ. Moore v. Sullivan,
919 F.2d 901, 905 (5th Cir. 1990). The ALJ may make credibility and weight
determinations as to all medical opinions. Id.
      Here, the ALJ reviewed evidence from the first hearing, including
reports and records from numerous physicians who treated Huskey for his
pain. The latter included Dr. Majors, Dr. Glenn Sholte, and Dr. Donna Holder.
A vocational specialist, Richard Galloway, Ph.D., also prepared a report
following an interview with Huskey and a review of his work, family, and
medical history. He also reviewed a report by a neurosurgeon, Dr. Janese,
which was prepared at the direction of the first ALJ in Huskey’s first hearing.
As discussed above, new medical evidence was another opinion letter from Dr.
Majors written in 2011.
      The ALJ gave the most weight to the contemporaneous reports of Drs.
Sholte and Holder, who made the relevant reports between March 1999 and
December 31, 2003, the time specified for consideration on remand from the
district court. In addition to determining that evidence was more valuable
because of its temporal proximity to the relevant time period, the ALJ
specifically noted that Drs. Sholte and Holder were also Huskey’s treating
physicians. The ALJ further cited the relevant Social Security regulation
requiring him to give controlling weight to certain opinions of treating
physicians. See SOC. SEC. R. 96-2p. Finally, the ALJ determined that Dr.
Majors’ opinion letters on Huskey’s condition “are not supported by her own
records, or those of her associates, Drs. Sholte and Holder.” Huskey also urges
that the ALJ placed too much weight on the report of Dr. Janese, who never
examined or treated Huskey. We note, however, that the ALJ stated he did
not credit Dr. Janese’s report to its full extent but concluded that Dr. Janese’s
assessment of Huskey’s condition ascribed to him a greater residual functional
capacity than was supported by other evidence in the record. We cannot
                                       5
    Case: 13-30946    Document: 00512579621     Page: 6   Date Filed: 03/31/2014



                                 No. 13-30946
conclude, then, that the ALJ did not give proper weight to the opinion of
Huskey’s treating physicians or that he gave too much to that of Dr. Janese.
See Myers, 238 F.3d at 621.
      The ALJ’s decision denying Huskey disability benefits was supported by
substantial evidence in the record as a whole. The decision of the district court
upholding that decision is AFFIRMED.




                                       6
