     Case: 11-20115     Document: 00511698997          Page: 1    Date Filed: 12/19/2011




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

                                                                             FILED
                                                                         December 19, 2011

                                     No. 11-20115                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



ARVIL T. LUCKEY,

                                    Plaintiff–Appellant
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURTIY,

                                    Defendant–Appellee



                    Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. 4:09-CV-3927


Before BENAVIDES, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Plaintiff-Appellant Avril T. Luckey (“Luckey”) appeals the denial of social
security disability benefits by the Commissioner of the Social Security
Administration (“Commissioner”). Luckey sought review of the Commissioner’s
denial of benefits in the United States District Court for the Southern District
of Texas, pursuant to 42 U.S.C. § 405(g). The district court affirmed the
Commissioner’s final administrative decision.


        *
        Pursuant to Fifth Circuit Rule 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not be published and is not precedent except under the limited circumstances set forth in Fifth
Circuit Rule 47.5.4.
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       Because we find that the Administrative Law Judge (“ALJ”) applied the
correct legal standards and issued an opinion supported by substantial evidence
of record, we AFFIRM the district court’s decision.
                     FACTUAL AND PROCEDURAL BACKGROUND
       Luckey worked as an outside machinist/millwright in the petrochemical
industry for almost 31 years. He was first hired in October 1967, the year he
graduated from high school, and he worked at the same job until August 1, 1998.
Based on his work history, Luckey was insured until December 31, 2003, his
date last insured for purposes of social security disability benefits.1
       Luckey filed his current application for benefits on September 8, 2004. He
claimed that his disability due to high blood pressure, diabetes, degenerative
bone disease, and herniated discs began on October 1, 2002. He later amended
his disability onset date to January 23, 2003. His application was denied at the
initial and reconsideration levels, after which Luckey sought a hearing before an
ALJ. The ALJ issued an unfavorable decision on July 28, 2006, and Luckey filed
for judicial review of the ALJ’s decision pursuant to 42 U.S.C. § 405(g).
       The district court remanded the case to the ALJ on July 30, 2008, directing
that the ALJ properly evaluate the opinion of Luckey’s treating physician,
Alfredo J. Nodarse, M.D. (“Dr. Nodarse”). The ALJ conducted a new hearing on
November 19, 2008, after which he issued a second unfavorable decision on
February 19, 2009. Once again, Luckey filed a civil action for judicial review of
the Commissioner’s decision. The district court affirmed the Commissioner’s




       1
         The Social Security Administration regulations contain a formula for calculating a
claimant’s insured status. See 20 C.F.R. § 404.130. A claimant must establish disability on
or before the date last insured in order to be entitled to a period of disability or disability
insurance benefits. See 20 C.F.R. § 404.131; Loza v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000).

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denial of benefits, and it granted summary judgment in the Commissioner’s
favor.2 Luckey filed a Notice of Appeal with this Court on February 17, 2011.
                              STANDARD OF REVIEW
      “In the Fifth Circuit, appellate review [of a Commissioner’s denial of
benefits] is limited to (1) whether the Commissioner applied the proper legal
standard; and (2) whether the Commissioner’s decision is supported by
substantial evidence.” Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002); see
also Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000); Selders v. Sullivan, 914
F.2d 614, 617 (5th Cir. 1990); 42 U.S.C. § 405(g). As long as substantial evidence
exists to support the Commissioner’s decision, it must be affirmed. Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000). “Substantial evidence” is defined as
“more than a scintilla and less than a preponderance.” Falco v. Shalala, 27 F.3d
160, 162 (5th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
It is “that which is relevant and sufficient for a reasonable mind to accept as
adequate to support a conclusion.” Spellman v. Shalala, 1 F.3d 357, 360 (5th
Cir. 1993). This Court may not reweigh the evidence, try the case de novo, or
substitute its judgment for that of the Commissioner, “even if the evidence
preponderates against the [Commissioner’s] decision.” Brown v. Apfel, 192 F.3d
492, 496 (5th Cir. 1999) (quoting Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir.
1988)). “Conflicts in the evidence are for the [Commissioner] and not the courts
to resolve.” Selders, 914 F.2d at 617 (citation omitted).
      This Court reviews a district court’s grant of summary judgment de novo
and applies the same standard as the district court. Holt v. State Farm Fire &
Cas. Co., 627 F.3d 188, 191 (5th Cir. 2010). Under that standard, summary

      2
        In both instances that Luckey filed a civil action for judicial review of the
Commissioner’s decision, the parties consented to the jurisdiction of a United States
Magistrate Judge.

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judgment is appropriate when “there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a). When reviewing a motion for summary judgment, the Court construes all
the evidence and reasonable inferences in the light most favorable to the
nonmoving party. Amazing Spaces, Inc. v. Metro Mini Storage, 608 F.3d 225,
234 (5th Cir. 2010) (quoting Xtreme Lashes, LLC v. Xtended Beauty, Inc., 576
F.3d 221, 226 (5th Cir. 2009)).
                                   ANALYSIS
      Luckey raises two issues on appeal.       First, he argues that the ALJ
employed improper legal standards by not giving “controlling weight” to the
opinion of Luckey’s longtime physician, Dr. Nodarse. Second, he claims that the
ALJ should have consulted a medical advisor to assist in determining Luckey’s
disability onset date.
      Under the Social Security Act, “disability” is defined as the “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 has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). A five-step analysis is used
to determine whether a claimant is disabled. Carey v. Apfel, 230 F.3d 131, 135
(5th Cir. 2000).
            “First, the claimant must not be presently working.
            Second, a claimant must establish that he has an
            impairment or combination of impairments which
            significantly limit [his] physical or mental ability to do
            basic work activities. Third, to secure a finding of
            disability without consideration of age, education, and
            work experience, a claimant must establish that his
            impairment meets or equals an impairment in the
            appendix to the regulations. Fourth, a claimant must
            establish that his impairment prevents him from doing

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            past relevant work. Finally, the burden shifts to the
            [Commissioner] to establish that the claimant can
            perform the relevant work. If the [Commissioner]
            meets this burden, the claimant must then prove that
            he cannot in fact perform the work suggested.”

Waters, 276 F.3d at 718 (quotation marks and citation omitted). Thus, “the

claimant bears the burden of proof with respect to the first four steps of the

analysis, with the burden shifting to the Commissioner for the final step.” Id.;

see also Brown, 192 F.3d at 498; Bowen, 864 F.2d at 348. “A finding that the

claimant is disabled or not disabled at any point in the five-step process is

conclusive and terminates the Secretary’s analysis.”       Id. at 344 (citations

omitted).

      Here, the ALJ set out the above five-step process, and then analyzed
Luckey’s claim accordingly. He found that under step three, Luckey did not have
an impairment or combination thereof equal to one of the listed impairments in
20 C.F.R. §§ 404.1525-26. He also found that while Luckey could not perform his
past work as a millwright, which is classified as heavy work, he had the residual
functional capacity to perform light work, as defined by 20 C.F.R. § 404.1567(b).
In making these findings, the ALJ considered Luckey’s symptoms, as well as the
objective medical evidence and other evidence provided. He found that Luckey’s
statements regarding his symptoms were not consistent with the ALJ’s
assessment of his residual functional capacity, because Luckey’s hypertension
and diabetes were well-controlled by medication, and during the relevant period
his back pain responded to conservative treatment, and did not worsen until
after his date last insured. The ALJ also specifically addressed Dr. Nodarse’s


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opinion that Luckey’s disability had begun before his date last insured, and he
found that the opinion was not supported by the record.
      Luckey argues correctly that a treating physician’s opinion, such as that
of Dr. Nodarse, often is given “controlling weight.” The ALJ addressed this
contention, however, noting that under the Social Security regulations, a
treating physician’s opinion on the nature and severity of a claimant’s
impairment receives “controlling weight” only where it “is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the] case record.” 20 C.F.R.
§ 404.1527(d)(2). The ALJ found that Dr. Nodarse’s opinion was inconsistent
with the remainder of the record, including Dr. Nodarse’s own treatment notes,
the conservative treatment he recommended for Luckey, the improvement of
Luckey’s back pain with chiropractic treatment, and the fact that Dr. Nodarse
did not refer Luckey to an orthopedist until the summer of 2004, six months
after his date last insured. Therefore, the ALJ did not give Dr. Nodarse’s
opinion “controlling weight.”
      Luckey argues in the alternative that, even if Dr. Nodarse’s opinion was
not given controlling weight, it should have been accorded great weight. He
claims that the ALJ failed “to clearly set forth specific reasons for the weight
given, or not given, to [Dr. Nodarse’s] treating opinion.” Plaintiff-Appellant’s Br.
at 35. However, a review of the ALJ’s decision shows that he very clearly set out
the reasons that he felt Dr. Nodarse’s opinion was “entitled to little weight.”
ALJ Opinion at 6. The ALJ listed the factors he was required to apply, including
“(1) the length of the treatment relationship and the frequency of examination;
(2) the nature and extent of the treatment relationship; (3) the relevant evidence
supporting the opinion; (4) the consistency of the opinion with the record as a
whole; (5) whether the opinion is of a specialist; and (6) any other factors which

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tend to support or contradict the opinion.” Id. (citing 20 C.F.R. § 404.1527(d)(1)-
(6)). The ALJ then discussed facts that pertained to each factor, including
objective medical evidence from the record, before discounting Dr. Nodarse’s
opinion. See Loza, 219 F.3d at 395 (“The ALJ cannot reject a medical opinion
without an explanation.”); Newton, 209 F.3d at 456 (stating that “an ALJ is
required to consider each of the § 404.1527(d) factors before declining to give any
weight to the opinions of the claimant’s treating specialist.”). Luckey is therefore
plainly incorrect that the ALJ failed to support his position as to the weight due
Dr. Nodarse’s opinion.
      It is true that “ordinarily the opinions, diagnoses, and medical evidence of
a treating physician who is familiar with the claimant’s injuries, treatments, and
responses should be accorded considerable weight in determining disability.”
Scott v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985). However, “[f]or good cause
shown, the ALJ may discount, or even disregard entirely, the opinion of the
treating physician.” Brown, 192 F.3d at 500 (internal citation omitted); see also
Newton, 209 F.3d at 456. As in Brown, the ALJ here had good cause to reject Dr.
Nodarse’s opinion regarding Luckey’s disabled status because that opinion was
unsupported by the record. Id. It is the Commissioner who must ultimately
determine whether a claimant is disabled, and not the claimant’s physician.
Spellman, 1 F.3d at 364. Furthermore, the ALJ, and not this Court, must decide
what weight to give the proffered medical evidence. Bowen, 864 F.2d at 343.
Luckey seeks to have this Court reweigh the evidence and substitute our
judgment for that of the Commissioner, but that is neither our place nor our
prerogative. Brown, 192 F.3d at 496. We find that the ALJ applied the proper
legal standards in evaluating Dr. Nodarse’s opinion, and that the ALJ’s decision




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that Dr. Nodarse’s opinion was entitled to little weight was supported by
substantial evidence. Thus, the decision must stand.
      Luckey’s second argument–that the ALJ should have consulted a medical
advisor in determining the onset of Luckey’s disability–is equally unavailing.
Luckey bases this argument on cases where the medical evidence regarding
onset date is ambiguous. See, e.g., Spellman, 1 F.3d at 362. However, the ALJ
here found that there was substantial evidence indicating the onset of Luckey’s
disability occurred in 2004, after his date last insured of December 31, 2003.
Outside of a retrospective opinion by Dr. Nodarse that Luckey’s back condition
constituted a disability in 2003, the ALJ found that there was no medical
evidence that Luckey suffered from a disability during that time period. See Id.
at 361 (stating that “the medical evidence is the primary element in the
determination of onset of disability.”). Thus, Luckey’s disability onset date was
not ambiguous, such that the ALJ needed to consult a medical advisor.
      Luckey also argues that the ALJ incorrectly discounted medical evidence
from the period after Luckey’s date last insured in determining his disability
onset date. Subsequent medical evidence is relevant “because it may bear upon
the severity of the claimant's condition before the expiration of his or her insured
status.” Loza, 219 F.3d at 394 (quotation marks and citation omitted). Luckey
had an MRI of his lumbar spine in June 2004 that showed lumbosacral
spondylosis with degenerative disc disease, L5-S1 disc herniation, bilateral hip
arthritis, and bilateral knee arthritis. In a letter written in 2006, Dr. Nodarse
stated that the conditions diagnosed with the MRI predated the test, and that
based on the results, Luckey would have been capable of no more than sedentary
work in 2003. However, Luckey presented no evidence outside of his own
testimony and Dr. Nodarse’s retrospective opinion to support a finding that he
was disabled prior to his date last insured. The ALJ cited notes from Luckey’s

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chiropractor–wherein Luckey stated that his pain had greatly improved with
treatment between August and December 2003–that contradicted Luckey’s
testimony at the hearing regarding the onset of his disability. See Scott, 770
F.2d at 485 (stating that it is the ALJ’s place to determine the credibility of
medical and lay witnesses). And while retrospective medical diagnoses may
constitute relevant evidence of the onset of disability, they must at least be
“corroborated by lay evidence relating back to the claimed period of disability.”
Likes v. Callahan, 112 F.3d 189 191 (5th Cir. 1997) (per curiam). Here, the only
evidence corroborating Dr. Nodarse’s retrospective medical opinion regarding the
MRI results was Luckey’s testimony at the hearing; Luckey presented no other
evidence, medical or lay, supporting Dr. Nodarse’s opinion that the onset of his
disability occurred in January 2003.
      The ALJ’s opinion that Luckey was not disabled on his date last insured
is supported by substantial evidence. There is no requirement that the ALJ
consult an additional medical advisor where, as here, the onset date of the
claimant’s disability is not ambiguous. Furthermore, the ALJ gave subsequent
medical evidence its due weight.
                                   CONCLUSION
      For the foregoing reasons, the judgment of the district court is
AFFIRMED.




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