* Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4.

### IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-30491 Summary Calendar

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 i nfra, the denial of benefits is supported by substantial evidence and is in accordance with the law. Jenkins filed an applic ation for disability insurance benefits on 31 July 2000, claiming a work-related leg injury in 1993 rendered him unable to work. United States Court of Appeals

Fifth Circuit 

### F I L E D October 15, 2007 Charles R. Fulbruge III ClerkNo. 07-30491

2 Upon the claim’s being denied, Jenkins requested a hearing before an Administrative Law Judge (A LJ). 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’sdeci sion 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 e vidence as a reasonable mind might accept as adequate tosupport 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”. J ohnson 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 oftwovo cational-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 si gnificant 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, theALJ may properly disregard that testimony. Owensv. Heckler, 770No. 07-30491

3 F.2d 1276, 1282 (5th Cir. 1985). Jenkins’ treating physician, Dr. Waldman, whose opinion isafforded considerable weight, 20 C.F.R. § 404.1527(d)(2), opined Jenkins could sit for prolonged periods oftime, 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’ abili ty 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.” Chamblissv. 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'ssubjective complaints [ofpain]”, Falcov. 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 antiinflammatory 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 medicalNo. 07-30491

4 improvement” and did not require further treatment. This assertion is unavailing. Having reached “maximum medical improvement” does not corroborateJenkins’ claims; there is no evidenceJenkins 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 aff orded 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 A LJ

erred in considering those earnings in determining Jenkins’ credibility, the error

was harmless. SeeAudler 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 A LJ’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.