Stephens v. Barnhart , 174 F. App'x 232 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 6, 2006
Charles R. Fulbruge III
Clerk
No. 04-51133
Summary Calendar
PHILLIP L. STEPHENS,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:04-CV-24
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Before SMITH, GARZA, and PRADO, Circuit Judges.
PER CURIAM:*
Phillip L. Stephens appeals the district court’s judgment in
this 42 U.S.C. § 405(g) action upholding the administrative law
judge’s (ALJ) decision denying him disability benefits and social
security income. This court reviews the decision “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).
*
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this opinion should not be published and is not precedent except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. 04-51133
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Stephens contends that the ALJ’s decision is not supported
by substantial evidence. He argues that the ALJ erred by
refusing to give substantial weight to the assessments of Dr.
Raymond Henke. Stephens submits that Dr. Henke’s findings were
deserving of substantial weight because they were based, in part,
on an objective test, the Minnesota Multiphasic Personality
Inventory.
The medical expert and the ALJ noted that Dr. Henke’s
ratings of Stephens’s mental ability to perform work-related
activities assessments conflicted with other evidence of record.
“[T]he ALJ must consider all the record evidence and cannot ‘pick
and choose’ only the evidence that supports his position.” Loza
v. Apfel, 219 F.3d 378, 393 (5th Cir. 2000) (citation omitted).
“[C]onflicts in the evidence, including the medical evidence, are
to be resolved, not by a reviewing court, but by the ALJ.” Carry
v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The ALJ’s
determination that Dr. Henke’s assessments should not be given
substantial weight was based on a consideration of all the
evidence and thus will not be overturned. See id.
Stephens argues that he met the requirements for a listed
impairment, specifically, an affective disorder under listing
12.04. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04. “[T]he
required level of severity [for listing 12.04] is met when the
requirements in both [subsections] A and B are satisfied.” Boyd
No. 04-51133
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v. Apfel, 239 F.3d 698, 703 n.8 (5th Cir. 2001) (internal
quotation marks omitted).
Subsection B requires the claimant to show that his
activities have been impaired in at least two of four areas.
Stephens contends that he satisfies the requirements of two of
the areas of subsection B based on the testimony of the medical
expert. The ALJ, however, disagreed with the medical expert’s
opinion that Stephens suffered from a marked limitation in social
functioning. The ALJ’s determination that Stephens did not
suffer from a marked limitation in social functioning was based
on substantial evidence. See Carry, 750 F.2d at 482. Stephens
has not shown that the ALJ erred in determining that he did not
meet or equal a listed impairment. See Boyd, 239 F.3d at 703
n.8.
Stephens contends that the ALJ erred in failing to
incorporate several of Dr. Henke’s ratings into his determination
of Stephens’s residual functional capacity (RFC). As discussed
above, the ALJ did not err in refusing to give substantial weight
to Dr. Henke’s assessments. The ALJ’s RFC determination gave
proper consideration to the opinions of state agency medical
consultants. See 20 C.F.R. § 404.1527(f)(2)(i). The ALJ’s RFC
determination is supported by substantial evidence. See Carry,
750 F.2d at 482.
Stephens also argues that the ALJ erred by failing to
determine whether he would be able to maintain employment over a
No. 04-51133
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significant period of time. Stephens has not shown that his
case presents circumstances under which the ALJ is required to
make a separate finding that the claimant is able to maintain
employment over a significant period of time. See Dunbar v.
Barnhart, 330 F.3d 670, 672 (5th Cir. 2003); Watson v. Barnhart,
288 F.3d 212, 217-18 (5th Cir. 2002).
AFFIRMED.