* 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.

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 infra, the denial of

benefits is supported by substantial evidence and is in accordance with the law.

Jenkins filed an application 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

Clerk
No. 07-30491

2

Upon the claim’s being denied, Jenkins requested a hearing before an

Administrative Law Judge (ALJ). 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’s decision 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 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 omitted); it must be “more than a scintilla,

but less than a preponderance”. Johnson 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

weightto,the testimony oftwo vocational-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 significant 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 hypotheticaltestimony by a vocational expertis unsupported by the

evidence,the ALJ may properly disregard thattestimony. Owens v. Heckler, 770
No. 07-30491

3

F.2d 1276, 1282 (5th Cir. 1985). Jenkins’ treating physician, Dr. Waldman,

whose opinion is afforded considerable weight, 20 C.F.R. § 404.1527(d)(2), opined

Jenkins could sit for prolonged periods of time, 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’

ability 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.” Chambliss v. 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's subjective complaints [of pain]”, Falco v. 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 medical
No. 07-30491

4

improvement” and did not require further treatment. This assertion is

unavailing. Having reached “maximum medical improvement” does not

corroborate Jenkins’ claims; there is no evidence Jenkins 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

afforded 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 ALJ

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

was harmless. See Audler 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 ALJ’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.