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

                                                 FILED
                                                                         September 2, 2009
                                     No. 09-40094
                                   Summary Calendar                    Charles R. Fulbruge III
                                                                               Clerk

ROY A. BROWN

                                                   Plaintiff-Appellant

v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                   Defendant-Appellee


                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 6:07-CV-262


Before JONES, Chief Judge, and STEWART and OWEN, Circuit Judges.
PER CURIAM:*
       This is an appeal from a denial of social security benefits. Finding no
reversible error, we AFFIRM the judgment of the district court.
                                    BACKGROUND
       On September 21, 2000, prior to the current case, the appellant, Roy
Brown (“Brown”), filed an application for Disability Insurance Benefits (“DIB”)
under Title II of the Social Security Act (“the Act”). His application alleged a
disability onset date of October 2, 1999. The application was denied on April 12,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-40094

2001. Since Brown did not seek reconsideration of that denial, the decision
became FINAL.
       Brown filed another application for DIB under the Act, here currently at
issue, that was denied on January 20, 2004.                    It was again denied upon
reconsideration on May 14, 2004. Brown then filed a request for a hearing
before an Administrative Law Judge (“ALJ”). The ALJ held the hearing on
March 31, 2006. On September 25, 2006, the ALJ decided that Brown did not
qualify for DIB because he was not disabled as defined by the Act. Brown
requested review by the Appeals Council. The Appeals Council denied Brown’s
request on April 28, 2007. With that denial, the ALJ’s decision became that of
the Commissioner.            On June 8, 2007, Brown sought review of the
Commissioner’s decision by the federal district court. The court referred the case
to a magistrate judge and then accepted the magistrate judge’s November 7,
2008 report and recommendation and dismissed the case with prejudice. Brown
now appeals that decision.
                                       DISCUSSION
       In the DIB application considered here, Brown claims that his ability to
work 1 has been limited, since at least October 1, 2001, by major depression and
bi-polar disorder. He asserts that when he is manic, he has difficulty completing
projects and complying with directions. When he is depressed, he sleeps most
of the time and has difficulty following his work schedule. Medical records
dating back to Brown’s 1992 hospitalization at University Park Hospital
document his history of mental illness. Beginning at that time, Brown has
received a variety of pharmaceutical, talk therapy, and group therapy
treatments to address his manic-depressive symptoms. Brown began receiving


       1
        Brown’s application and testimony indicate that he has most consistently been
employed in the past as an auto mechanic. However, during a hearing held on March 31,
2006, he testified that he last worked, in 1999, on an offshore drilling rig. He also testified at
that time that he was not looking for work and lives off his wife’s disability income. She
suffered a stroke in 1994.

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treatment at Sabine Valley Clinic on May 20, 1996. His treatment at that
facility continues through the present, although he has been under the care of
several different physicians during that time.
      Section 205(g) of the Act, 42 U.S.C. § 406(g), limits the judicial review of
the denial of disability benefits to “determining whether the decision is
supported by substantial evidence in the record and whether the proper legal
standards were used in evaluating the evidence.” Bowling v. Shalala, 36 F.3d
431, 435 (5 th Cir. 1994) (quoting Villa v. Sullivan, 895 F.2d 1019, 1021 (5 th Cir.
1990)); Muse v. Sullivan, 925 F.2d 785, 789 (5 th Cir. 1991) (per curiam). A
finding of no substantial evidence is appropriate only where there is a
conspicuous absence of credible choices or no contrary medical evidence.
Johnson v. Bowen, 864 F.2d 340, 343-44 (5 th Cir. 1988) (citing Hames v. Heckler,
707 F.2d 162, 164 (5 th Cir. 1983)). The court may not re-weigh the evidence in
the record, nor try the issues de novo, nor substitute the court’s judgment for the
Commissioner’s, even if the evidence preponderates against the Commissioner’s
decision. Harrell v. Bowen, 862 F.2d 471, 475 (5 th Cir. 1988).
      “Substantial evidence is more than a scintilla but less than a
preponderance–that is, enough that a reasonable mind would judge it sufficient
to support the decision.” Pena v. Astrue, 271 Fed.Appx. 382, 383 (5 th Cir. 2003)
(citing Falco v. Shalala, 27 F.3d 160, 162 (5 th Cir. 1994)). Four factors constitute
substantial evidence: (1) objective medical facts or clinical findings; (2) diagnoses
of examining physicians; (3) subjective evidence of pain and disability; and
(4) the plaintiff’s age, education, and work history. Fraga v. Bowen, 810 F.2d at
1302, n.4 (5 th Cir. 1987).
      A claimant has the burden of proving disability.          Wren v. Sullivan,
925 F.2d 123, 125 (5 th Cir. 1991). The Act defines “disability” as an “inability to
engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which can be expected to last for a continuous period of not less than 12

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months.” 42 U.S.C. § 416 (I)(1)(A); 42 U.S.C. § 423(d)(1)(A). A “physical or
mental impairment”       is   an   anatomical, physiological, or    psychological
abnormality which is demonstrable by acceptable clinical and laboratory
diagnostic techniques. 42 U.S.C. § 423(d)(2)(A); 42 U.S.C. § 1382c(a)(3)(B).
      A five-step analysis guides the Commissioner’s determination of a
claimant’s disability: (1) Is the claimant currently engaged in substantial gainful
activity? (2) Is the alleged impairment severe? (3) Does the claimant have an
impairment for combination of impairments that meet or equal those listed in
Appendix 1? (4) Does the impairment prevent the claimant from performing his
past relevant work? (5) Does the impairment prevent the claimant from
performing any other work? 20 C.F.R. § 404.1520(b)-(f); 20 C.F.R. § 416.920.
Furthermore, a claimant must show that he was disabled on or before the last
day of his insured status. Ware v. Schweiker, 651 F.2d 408, 411 (5 th Cir. 1981).
The claimant bears the burden of proof for steps (1) through (4). If the claimant
shows that he cannot perform his past relevant work, the Commissioner bears
that burden at step (5). Villa, 895 F.2d 1019, 1022 (5 th Cir. 1990). THE ALJ
found that although Brown has mental problems, he did not fit the definition of
“disabled” during the period covered by his benefits claim.
      Appellant Brown argues that the ALJ’s finding of “not disabled” is based
on significant legal error and lacks the support of substantial evidence. Brown
contends that the ALJ erred in evaluating the medical evidence in weighing the
medical source opinions of record. In this appeal, Brown focuses on alleged error
by the ALJ in two ways: (1) his mistakenly weighing the testimony of a non-
examining psychiatrist, Dr. Sharifian, in comparison to the testimony of
Dr. Harold, on whose assessment Brown heavily relies for proof of his disability;
and (2) mischaracterizing Dr. Harold’s expert testimony as of “little probative
value.”   Brown further contends that the ALJ erred by (3) finding that
substantial evidence supported a lack of credibility of Brown’s subjective
complaints.

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       The Commissioner contends that the ALJ properly evaluated the medical
evidence and properly rejected the credibility of Brown’s complaints.                     The
Commissioner contends that the application of the proper legal standard and the
sufficiency of the evidence in this case support the decisions of the ALJ and the
federal district court.
       In order to prove his disability, Brown relies heavily on the testimony of
Dr. Harold at the Sabine Valley Clinic. Brown contends that Dr. Harold is
properly classified as a “treating physician” and “examining source.” As such,
his testimony regarding Brown’s condition would be weighed more heavily than
that of Dr. Sharifian 2 , a non-examining source.                When a non-examining
physician’s conclusions either contradict or are unsupported by an examining
physician’s findings, the non-examining physician’s report does not provide
substantial evidence. 20 C.F.R. § 404.1527(f)(2)(iii). Newton v. Apfel, 209 F.3d
at 448, 458 (5 th Cir. 2000).       A treating source “means your own physician,
psychologist, or other acceptable medical source who provides you, or has
provided you, with medical treatment or evaluation and who has, or has had, an
ongoing treatment relationship with you.” 20 C.F.R. § 404.1502. Brown bases
his argument on the fact that Dr. Harold treated Brown once every three months
between January 2004 and May 2005. He also points out that Dr. Harold had
the opportunity to review Brown’s records from the Sabine Valley Clinic, dating
back to 1996.
       As the ALJ found, however, Brown’s visits with Dr. Harold took place after
the relevant time period under review in this case. The relevant period dates
from October 1, 2001 to September 30, 2002. This is the only relevant period the
law required the ALJ to consider, given the expiration of Brown’s insured status,


       2
        Dr. Mahdi Sharifian is the State Agency reviewing medical psychiatrist who concluded
that Brown had no more than moderate limitations in selected areas of functioning. Brown
also points out that Dr. Sharifian has a specialty in child psychiatry, suggesting that she may
not be adequately qualified to assess his condition. However, Dr. Sharifian’s secondary
specialty is general psychiatry.

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and the fact that Brown filed an earlier DIB application that was denied and
never appealed.3
       Brown also discounts the authority of Dr. Sharifian. However, findings of
fact made by State Agency consultants concerning the nature and severity of the
claimant’s impairments must be treated as expert testimony by a non-examining
source at the ALJ and Appeals Council administrative review levels. SSR 96-6p,
Policy Interpretation Ruling Titles II and XVI: Consideration of Administrative
Findings of Fact By State Agency Medical and Psychological Consultants at the
Administrative Law Judge and Appeals Council Level of Review, 1996 WL.
374180 (SSA). Dr. Sharifian’s assessment of Brown was properly considered and
was tied to the relevant period at issue here.
       On the closely related question whether Dr. Harold’s testimony was of
“little probative value,” Brown argues Dr. Harold’s testimony is relevant, though
it is retrospective.      He contends that retrospective medical diagnoses may
constitute relevant evidence of pre-expiration disability. The two cases he cites
in support of his position, however, apply specifically to disability claims related
to post traumatic stress disorder. Likes v. Callahan, 112 F.3d 189, 190-91 (5 th
Cir. 1997). Loza v. Apfel, 219 F.3d 378, 396 (5 th Cir. 2000). More significant, is
that these cases, and Brown’s accompanying argument, do not address the
impact of res judicata on the period prior to October 1, 2001, given Brown’s prior
denial of DIB.
       Further, even if Dr. Harold’s testimony was deemed that of a “treating
physician,” it would only be given “controlling weight” if it was well supported
by medically acceptable clinical and laboratory diagnostic techniques, and was


       3
        Dr. Harold did not see Brown during the period for which Brown now seeks benefits,
nor can his review of Brown’s past treatment records revive an already-denied claim. If a
claimant fails to timely appeal the denial of a disability claim, the claim becomes final and res
judicata bars the claimant from seeking disability for that same period in a subsequently filed
application. Brown v. Apfel, 192 F.3d 492, 495 (5th Cir. 1999). 20 C.F.R. § 404.957(c)(1). We
conclude that res judicata bars consideration of that prior period here.

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not inconsistent with other substantial evidence. 20 C.F.R. § 404.1527(d)(2).
Dr. Harold completed a restrictive fill-in-the-blank and check-the-block
“psychiatric/psychological impairment questionnaire” on May 16, 2005. The ALJ
concluded that this assessment held little value not only because of the late date
that it occurred, but also because Dr. Harold did not have a legitimate treating
relationship with Brown at that time. Dr. Harold saw Brown five times prior to
that assessment, with most of the visits lasting significantly less than 20
minutes. As the court below concluded, an opinion based on such a relatively
fleeting relationship should not be accorded the “controlling weight” of a
“treating physician” testimony under the law. Therefore, Dr. Harold’s testimony
was of limited probative value here.
       Regarding the issue of Brown’s credibility, we emphasize again that the
relevant one-year time period runs from Brown’s alleged onset of disability on
October 1, 2001 to the date he last met the insured status requirements on
September 30, 2002. While Brown’s medically determinable impairments during
that time could reasonably be expected to produce the symptoms he alleged in
his testimony before the ALJ, the ALJ found that the objective medical evidence
does not support his allegations concerning the intensity, duration, and limiting
effects of his symptoms during the relevant period. Brown’s subjective accounts
of his illness cannot outweigh the countervailing facts.
       In fact, the only documentary evidence presented from the relevant time
period is clinic notes from two medical appointments, one on March 4, 2002, and
the other on September 16, 2002.4                 The first of those notes, created by
Dr. Murphy, reported that Brown was generally oriented, his mood was
euthymic, his affect was appropriate, and he did not have suicidal or homicidal


       4
        The record also indicates that Brown failed to appear for his two scheduled
appointments on May 25, 2002 and July 17, 2002. Neither party disputes this fact. However,
the appellant argues that the missed appointments suggest the severity of Brown’s incapacity,
whereas the appellee insists that they indicate a failure to pursue treatment. Given the other
issues under consideration here, this particular dispute is not determinative.

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ideations.   The second note reported that Brown did not have suicidal or
homicidal ideations and that he had an appropriate affect. Based on a Mental
Residual Functional Capacity Assessment completed on May 13, 2004, the ALJ
found that between October 1, 2001 and September 30, 2002, Brown retained the
residual functional capacity necessary for a range of work activity, subject to
some limitations. Those limitations, deemed “moderate,” affected: his ability to
understand, remember, and carry out detailed instructions; to maintain
attention and concentration for extended periods; to complete a normal work day
and work week without interruptions from psychologically based symptoms; to
perform at a consistent pace without an unreasonable number and length of rest
periods; to accept instructions and respond appropriately to criticism from
supervisors; and to set realistic goals and make plans independent of others.
Based upon further testimony of a vocational expert, the ALJ concluded that
Brown could perform his past relevant work as an automobile mechanic during
the relevant one-year period. Accordingly, Brown could not be properly classified
as “disabled” under the Act.
      The ALJ evaluated Brown’s credibility under appropriate legal standards,
and his conclusion is sufficiently supported.
      For these reasons, we conclude that the ALJ applied the proper legal
standard in evaluating the case, and substantial evidence supports the
conclusion below that Brown’s application for DIB should be denied.          The
judgement of the district court is AFFIRMED.




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