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. 09-40094

Summary Calendar

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,

United States Court of Appeals

Fifth Circuit

F I L E D

September 2, 2009

Charles R. Fulbruge III

Clerk
No. 09-40094

Brown’s application and testimony indicate that he has most consistently been

1

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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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 has been limited, since at least October 1, 2001, by major depression and 1

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
No. 09-40094

3

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 Cir. 1994) (quoting Villa v. Sullivan, 895 F.2d 1019, 1021 (5 Cir. th th

1990)); Muse v. Sullivan, 925 F.2d 785, 789 (5 Cir. 1991) (per curiam). A th

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 Cir. 1988) (citing Hames v. Heckler,

th

707 F.2d 162, 164 (5 Cir. 1983)). The court may not re-weigh the evidence in th

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 Cir. 1988). th

“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 Cir. 2003) th

(citing Falco v. Shalala, 27 F.3d 160, 162 (5 Cir. 1994)). Four factors constitute th

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 Cir. 1987). th

A claimant has the burden of proving disability. Wren v. Sullivan,

925 F.2d 123, 125 (5 Cir. 1991). The Act defines “disability” as an “inability to th

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
No. 09-40094

4

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 Cir. 1981). th

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 Cir. 1990). THE ALJ th

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 nonexamining 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. 
No. 09-40094

Dr. Mahdi Sharifian is the State Agency reviewing medical psychiatrist who concluded

2

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.

5

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 , a non-examining source. When a non-examining 2

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 Cir. 2000). A treating source “means your own physician, th

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,
No. 09-40094

Dr. Harold did not see Brown during the period for which Brown now seeks benefits, 3

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 (5 Cir. 1999). 20 C.F.R. § 404.957(c)(1). We th

conclude that res judicata bars consideration of that prior period here.

6

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 (5th

Cir. 1997). Loza v. Apfel, 219 F.3d 378, 396 (5 Cir. 2000). More significant, is th

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
No. 09-40094

The record also indicates that Brown failed to appear for his two scheduled 4

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.

7

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. The first of those notes, created by 4

Dr. Murphy, reported that Brown was generally oriented, his mood was

euthymic, his affect was appropriate, and he did not have suicidal or homicidal
No. 09-40094

8

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.