Case: 09-41148     Document: 00511176577          Page: 1    Date Filed: 07/16/2010




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

                                                  FILED
                                                                            July 16, 2010

                                     No. 09-41148                           Lyle W. Cayce
                                   Summary Calendar                              Clerk



JIMMY D. BRUNSON,

                                                   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, Lufkin
                               USDC No. 9:07-CV-301


Before JOLLY, STEWART, and ELROD, Circuit Judges..
PER CURIAM:*
        Jimmy D. Brunson appeals the district court’s judgment affirming the
Commissioner of Social Security’s decision that he is not entitled to Social
Security disability benefits. Because the Commissioner applied the correct legal
standards and because there is substantial evidence to support the decision, we
affirm.




        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                  No. 09-41148

                                        I.
      Mr. Brunson applied for Social Security disability benefits in July 2002.
He alleged that he had been disabled since March 30, 1997, because of back
problems, depression, diabetes, and high blood pressure. The date on which he
was last insured for purposes of Social Security disability benefits was
September 30, 1998. Accordingly, Mr. Brunson had to establish that he was
disabled before the expiration of his insured status. See Anthony v. Sullivan,

, 295 (5th Cir. 1992). The Social Security Administration denied his
application initially and on reconsideration. Mr. Brunson requested a hearing
before an Administrative Law Judge (ALJ). Following the hearing, the ALJ
found that Mr. Brunson had a medically determinable impairment related to his
back but that, as of September 30, 1998, the date he was last insured, he did not
have an impairment or a combination of impairments that was severe within the
meaning of the sequential evaluation process used for evaluation of disability
benefit claims. The ALJ’s decision became the Commissioner’s final decision
after the Appeals Council denied Mr. Brunson’s request for review. The district
court affirmed the decision of the Commissioner. Mr. Brunson filed a timely
notice of appeal.
                                        II.
      Mr. Brunson contends on appeal that (1) the ALJ misstated the record in
asserting that there was no evidence of psychiatric treatment prior to the
expiration of his insured status; and (2) the ALJ erred by ignoring evidence
helpful to Mr. Brunson in deciding that his lumbar impairment is not severe
under step two of the sequential analysis.        An impairment is severe if it
significantly limits an individual’s physical or mental abilities to do basic work
activities; it is not severe if it is a slight abnormality or combination of slight
abnormalities that has no more than a minimal effect on the claimant’s ability
to do basic work activities. Stone v. Heckler, 

, 1101 (5th Cir. 1985).


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                                 No. 09-41148

We review the Commissioner’s decision only to ascertain whether it is supported
by substantial evidence and whether the Commissioner applied the proper legal
standards in evaluating the evidence. Newton v. Apfel, 

, 452 (5th
Cir. 2000). We may not re-weigh the evidence or substitute our judgment for
that of the Commissioner, even if the evidence weighs against the
Commissioner’s decision. 

is correct in his assertion that the ALJ misstated the record
when he stated that it contained no evidence of any ongoing psychiatric
treatment and no evidence that Mr. Brunson was ever prescribed psychotropic
medication during the period in question (March 30, 1997 through September
30, 1998). That error, however, is harmless, because the evidence in the record
indicates that Mr. Brunson took anti-depressant medication which controlled his
symptoms of depression during the relevant time period. Thus he did not have
a severe mental impairment prior to September 30, 1998, the date he was last
insured. See Johnson v. Bowen, 

, 347 (5th Cir. 1988) (impairments
that reasonably can be remedied or controlled by medication or treatment are
not disabling). Accordingly, it would not be appropriate for us to remand the
case for the purpose of having the ALJ correct this misstatement.
      The ALJ applied the proper legal standard of Stone v. Heckler in
determining that Mr. Brunson did not have a severe impairment or a
combination of severe impairments during the period from March 30, 1997
through September 30, 1998. Furthermore, substantial evidence in the record
supports the ALJ’s conclusion that Mr. Brunson’s back pain did not impose more
than a minimal effect on his ability to engage in basic work-related activities
during the relevant period. The fact that the ALJ cited certain evidence that he
felt supported his decision does not mean that he failed to consider all of the
other evidence in the record. To the contrary, his decision states expressly that
it was made “[a]fter careful consideration of all the evidence,”and we see no


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                                  No. 09-41148

reason or evidence to dispute his assertion. Indeed, based on our review of all
of the evidence in the record, the Commissioner’s decision is supported by
substantial. That evidence shows that Mr. Brunson injured his back on March
30, 1997. His treating physician, Dr. Williams, recommended physical therapy.
In a report dated August 21, 1997, Dr. Williams released Mr. Brunson to full
duty work, finding that he had a four percent impairment to the person as a
whole. Although Dr. Williams occasionally indicated on forms that Mr. Brunson
“can’t work,” such declarations are not determinative, particularly when
considered in the light of her clinical findings. See Frank v. Barnhart, 

, 620 (5th Cir. 2003) (treating physicians’ opinions that claimants are unable
to work are legal conclusions for the Commissioner to make). At the hearing, the
ALJ asked Mr. Brunson to describe the most severe medical problem that he had
that kept him from working. Mr. Brunson mentioned his feet, ankle, dizzy
spells, and complications of diabetes, but did not include back pain.
                                       III.
      We conclude that the Commissioner’s decision is supported by substantial
evidence and resulted from application of the correct legal standards.
Accordingly, the decision of the district court affirming the Secretary’s denial of
benefits is
                                                                     AFFIRMED.




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