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

                                                 FILED
                                                                             July 2, 2009

                                     No. 08-31150                      Charles R. Fulbruge III
                                   Summary Calendar                            Clerk



KENNY W. MCKNIGHT

                                                   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. 3:07-CV-01654


Before KING , DENNIS, and OWEN, Circuit Judges.
PER CURIAM:*
       This appeal requires us to consider whether substantial evidence supports
the denial of disability benefits under the Social Security Act. The district court
concluded that substantial evidence existed and entered judgment in favor of the
Commissioner of Social Security. Having reviewed the record, we agree and
affirm the judgment of the district court.




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-31150

      On November 5, 2004, Kenny McKnight (“Appellant”) applied for disability
benefits. He alleged that he has been disabled since May 1, 2003, due to
limitations caused by back injuries, resulting side effects of medication to treat
the pain, and a depressive medical condition. At the time of his disability
hearings, he was 43 years old. He has a 12th grade education. His past relevant
work includes experience as a plastic-spreading machine operator.
      After a hearing, the Administrative Law Judge (“ALJ”) concluded that
Appellant had a Residual Functional Capacity (“RFC”) as follows:
      The claimant can lift and/or carry less than ten pounds frequently
      and 10 pounds occasionally, stand, and/or walk at least two hours
      in an eight hour workday, and sit about six hours in an eight hour
      workday. The claimant’s exertional capacity is reduced by moderate
      limitations in the ability to understand, remember, and carry out
      detailed instructions, to maintain attention and concentration for
      extended periods, to work in coordination with or proximity to
      others without being distracted by them, to interact appropriately
      to changes in the work setting, to travel in unfamiliar places, and to
      set realistic goals or make plans independently of others.
Relying on a vocational expert’s interrogatories, the ALJ also concluded that
McKnight’s RFC did not permit him to return to his previous occupation, but
that the “claimant retains the capacity for work that exists in significant
numbers in the national economy” and thus he is not “disabled” as defined by the
Social Security Act. The Appeals Council, however, vacated that determination
and remanded the case to the ALJ for further administrative proceedings.
Specifically, the Appeals Council remanded the case for resolution of the
following issue:
      The hearing decision indicates . . . that the claimant’s allegations
      are not supported by the record, but does not consider the following
      factors in evaluating the intensity, persistence and limiting effects
      of the alleged symptoms: prior work record; daily activities; the
      location, duration, frequency and intensity of pain or other
      symptoms; precipitating and aggravating factors; the type, dosage,
      effectiveness and side effects of medication; treatment other than

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                                 No. 08-31150

      medication; and other measures used to relieve symptoms. A
      discussion that addresses these factors is needed to properly
      evaluate the credibility of the claimant’s statements.

In addition, the Appeals Council said that “[u]pon remand the [ALJ] will”:

      Further evaluate the claimant’s subjective complaints and provide
      rationale in accordance with the disability regulations pertaining to
      evaluation of symptoms (20 CFR 404.1529) and pertinent circuit
      case law and Social Security Ruling 96-7p.

The Appeals Council stated that:

      In compliance with the above, the [ALJ] will offer the claimant an
      opportunity for a hearing, address the evidence from [the treating
      physicians] and the claimant’s pharmacies which was submitted
      with the request for review, take any further action needed to
      complete the administrative record and issue a new decision.

On remand, after another hearing, the ALJ considered the claimant’s subjective
complaints of side-effects from his medication, but, ultimately, the ALJ found
the claimant’s RFC to be the same RFC as had been determined after the prior
hearing. In short, the new evidence presented on remand did not alter the ALJ’s
RFC determination. Because the RFC remained unchanged, the ALJ did not call
upon a new vocational expert to testify. Relying on the same vocational expert’s
interrogatories, which discussed the number of jobs available to persons with
said RFC, the ALJ again concluded that claimant could engage in work that
exists in significant numbers in the national economy and is therefore not
disabled as defined by the Social Security Act. McKnight again appealed the
decision to the Appeals Council, which denied review thereby rendering the
ALJ’s decision the final decision of the Commissioner of Social Security (the
“Commissioner”). McKnight then appealed the final decision to the federal
district court, where a magistrate judge recommended affirming the denial of




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benefits and the district court adopted that recommendation. Appellant filed a
timely notice of appeal to this court.
      We review a district court’s summary judgment ruling de novo, applying
the same standard as the district court. Wyatt v. Hunt Plywood Co., 297 F.3d
405, 408 (5th Cir. 2002). In reviewing the Commissioner’s determination, we
consider only whether the Commissioner applied the proper legal standards and
whether substantial evidence in the record supports its decision. See Greenspan
v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). Substantial evidence is “more than
a mere scintilla. It means 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 and citation omitted). We may not reweigh
the evidence or substitute our own judgment for that of the Commissioner.
Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988).
      In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether “(1) the claimant is presently 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 doing any other substantial gainful
activity.” Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007) (citing Lovelace
v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987)). If, at any step, the claimant is
determined to be disabled or not disabled, the inquiry ends. Id. at 448 (citing
Lovelace, 813 F.2d at 58). The burden of establishing disability rests with the
claimant for the first four steps and then shifts to the Commissioner to show
that there is other substantial work in the national economy that the claimant
is able to perform. Id.
      Here, with respect to the first step, the ALJ found that Appellant had not
engaged in substantial gainful activity since the onset of his alleged disability.

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With respect to the second step, the ALJ found that claimant suffers from
impairments, included a generalized anxiety disorder, depressive disorder, and
degenerative disc disease of the lumbar spine. With respect to the third step, the
ALJ found that Appellant’s severe impairments, singularly or in combination,
were not severe enough to meet or equal in severity any impairment listed in the
Listing of Impairments, 20 C.F.R. Part 404, Subpt. P, App. 1 and therefore did
not qualify for presumptive disability. Because he did not qualify for
presumptive disability, the ALJ proceeded to “assess and make a finding about
[his] residual functional capacity based on all the relevant medical and other
evidence in [his] case record” and “use [the] residual functional capacity
[(“RFC”)] assessment at the fourth step of the sequential evaluation process to
determine if [he could] do [his] past relevant work . . . and at the fifth step of the
sequential evaluation process (if the evaluation proceeds to this step) to
determine if you can adjust to other work.” 20 C.F.R. § 416.920(e). The ALJ
determined that Appellant’s impairments resulted in functional limitations and
restricted Appellant to sedentary work. As quoted above, the ALJ determined
the claimant’s RFC did not permit the Appellant to return to his previous
occupation but permitted him to engage in work that exists in significant
numbers in the national economy. After reviewing the record, we agree that the
ALJ’s decision was supported by substantial evidence.
       McKnight argues that the ALJ did not properly weigh his subjective
complaints of being tired, depressed and reclusive as a result of his pain
medication in determining his alleged disability and his RFC allowed him to
perform other substantial gainful activity.1 The only other evidence presented,


       1
         The claimant also refers to the ALJ’s alleged errors in characterizing his treatment
history as inconsistent. We agree with the Government that even assuming arguendo that the
ALJ’s description of the claimant’s treatment history is erroneous, this error does not prejudice
the claimant. See Carey v. Apfel, 230 F.3d 131, 143 (5th Cir. 2000). The ALJ’s recitation of the
claimant’s treatment history did not ultimately affect the ALJ’s disability determination

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apart from McKnight’s (and his wife’s) testimony, was general information
regarding his medications’ potential side-effects. Sources used to establish
whether a claimant has a medical impairment should include evidence from
acceptable medical sources. See 20 C.F.R. § 404.1513; Houston v. Sullivan, 895
F.2d 1012, 1016 (5th Cir. 1989). The medical evidence provided does not show
that McKnight is suffering from any of the side-effects or how serious the effects
are. The only testimony to that effect is McKnight’s (and his wife’s) testimony.
However, this testimony is undermined by his medical doctors’ reports of what
the claimant stated regarding his medication and what the doctors observed. In
these reports, there is substantial evidence to support the ALJ’s determination
that any impairments caused by the medication were at the most moderate and
properly accounted for in the RFC. Credibility determinations are generally
entitled to great deference, Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000),
and in this case, we find that the ALJ’s credibility determination is supported
by substantial evidence.
       Under 20 C.F.R. § 416.920(e), the ALJ first determines the claimant’s RFC
and then determines under the fourth and fifth steps whether there are jobs in
significant numbers available to persons with that RFC. The remand to the ALJ
primarily affected the ALJ’s analysis of the RFC and not the availability of jobs
available to the persons with said RFC. Since the ALJ did not change his RFC
assessment after remand, the ALJ’s failure to initiate new hearings or submit
the vocational expert to renewed cross-examination is not prejudicial because the
vocational expert’s interrogatories had been entered into the record without



because the ALJ had agreed with the claimant that he suffers from impairments, including
a generalized anxiety disorder, depressive disorder, and degenerative disc disease of the
lumbar spine. The only dispute concerns these impairments’ effect on his ability to work.
Whether the claimant had a consistent treatment history for these conditions does not affect
the ALJ’s substantiated conclusion that these conditions only moderately affect his current
ability to work.

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                                  No. 08-31150

objection from the claimant. See, e.g., Wallschlaeger v. Schweiker, 705 F.2d 191,
194 (7th Cir. 1983); Pogue v. Sec’y of Health & Human Services, 836 F.2d 550
(6th Cir. 1987) (unpublished) (affirming ALJ findings relying on record evidence
from a previous hearing). The claimant also contends that the testimony
regarding the job numbers is no longer valid because it was fourteen months old
by the time of the decision after remand. However, the claimant does not provide
any substantiated argument as to how the vocational expert’s interrogatories are
no longer valid after fourteen months, and “there was testimony at the hearing
that there are a number of jobs suited to the Appellant's capabilities which were
available to him in his geographical locale.” Fortenberry v. Harris, 612 F.2d 947,
950 (5th Cir. 1980). Having reviewed the record and all of the arguments raised
by Appellant, we affirm the judgement of the district court.
      AFFIRMED.




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