Jones v. Astrue

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS March 29, 2007
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 06-30735
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LINDA M. JONES,
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
No. 6:05-CV-454
Before DeMOSS, STEWART, and PRADO, Circuit Judges.
Per Curiam:*
Plaintiff-Appellant Linda M. Jones (“Jones”) appeals from a
district court decision upholding the Commissioner of Social
Security’s (the “Commissioner”) denial of Jones’s claim for
disability benefits under the Social Security Act. For the
reasons that follow, we affirm the judgment of the district
court.
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
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I. FACTUAL AND PROCEDURAL BACKGROUND
On April 16, 2003, Jones filed an application for
supplemental security income benefits. Jones claimed a disability
beginning May 1, 1999, due to anxiety, depression, stomach ulcer,
back problems, weakness, headaches, drowsiness, and pain. Her
application was denied upon initial determination, and Jones
requested a hearing before an administrative law judge (“ALJ”). A
hearing was held on June 16, 2003, and on July 24, 2003, the ALJ
issued an unfavorable decision. Jones then filed a request for
review by the Appeals Council. The Appeals Council determined
that the ALJ had erred by relying upon the Medical Vocational
Guidelines (“Grids”), and that Jones’s non-exertional limitations
required the use of vocational expert testimony to determine if
there were jobs existing in the national economy that Jones could
perform. The Appeals Council therefore remanded the case to the
ALJ with instructions that the ALJ obtain evidence from a
vocational expert.
The ALJ held a new hearing on February 11, 2004, at which a
vocational expert gave testimony. Following this hearing, the ALJ
issued a decision on August 26, 2004, again denying Jones’s
claim. Jones filed a new request for review with the Appeals
Council. The Appeals Council considered the ALJ’s decision, as
well as new evidence submitted by Jones too late for the ALJ to
consider. This evidence consisted of a psychological examination
2
report by Dr. David E. Greenway. On December 2, 2004, the Appeals
Council denied Jones’s request and stated that the new evidence
provided by Jones created no basis for altering or amending the
ALJ’s decision.
Jones appealed to the United States District Court for the
Western District of Louisiana. Jones argued that (1) the ALJ
erred in positing a defective hypothetical question to the
vocational expert; (2) the ALJ improperly applied the Grids to
deny benefits; and (3) the ALJ failed to fully and fairly develop
the facts. Jones’s appeal was referred to a magistrate judge, who
issued a report and recommendation on April 18, 2006. The
magistrate found that there was substantial evidence in the
record to support the Commissioner’s decision of non-disability
and that the Commissioner’s decision comported with all relevant
legal standards. Specifically, the magistrate concluded that the
ALJ incorporated the appropriate limitations into his
hypothetical question and that Jones’s counsel had the
opportunity to correct any defects in the hypothetical question.
Second, the magistrate found that the ALJ had not relied on the
Grids, but rather on the testimony of the vocational expert, in
concluding that jobs existed in significant numbers that Jones
could perform. Finally, the magistrate concluded that there was
no failure by the ALJ to develop adequately the record regarding
Jones’s alleged mental retardation because the report by Dr.
Greenway was not in conflict with prior evaluations indicating
3
that Jones had low average intelligence. The magistrate noted
that the Appeals Council had concluded that the Greenway report
was not a basis for changing the ALJ’s decision, and stated that
“[t]he undersigned agrees that the additional evidence would not
have led to a different decision by the ALJ.” The district court
adopted the findings and conclusions of the magistrate’s report
and affirmed the decision of the Commissioner. This appeal by
Jones followed.
II. JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction pursuant to 28 U.S.C. § 1291.
Judicial review of the Commissioner’s decision to deny benefits
is limited to determining whether (1) the final decision is
supported by substantial evidence and (2) the Commissioner used
the proper legal standards in evaluating the evidence. Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Substantial evidence is
such relevant evidence as a reasonable mind might accept to
support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th
Cir. 1995). It is more than a scintilla and less than a
preponderance. Id. This court may not re-weigh the evidence in
the record or substitute our judgment for that of the
Commissioner. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000).
III. DISCUSSION
To be entitled to social security disability benefits, a
claimant must show an “inability to engage in any substantial
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gainful activity by reason of any medically determinable physical
or mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). To evaluate a claim of disability, the ALJ
follows a five-step sequential process, the first four steps of
which place the burden on the claimant. Muse v. Sullivan, 925
F.2d 785, 789 (5th Cir. 1991). The five steps are:
(1) A claimant who is working and engaging in substantial
gainful activity will not be found disabled regardless of
medical findings.
(2) A claimant who does not have a “severe impairment” will
not be found to be disabled.
(3) A claimant who meets or equals an impairment listed in
20 C.F.R. pt. 404, subpt. P, app. 1 will be considered
disabled without the consideration of vocational factors.
(4) If the claimant is capable of performing the work he or
she has done in the past, that claimant is “not disabled.”
(5) If the impairment precludes the claimant from
performing his or her past work, other factors including
age, education, past work experience, and residual
functional capacity must be considered to determine if the
claimant can perform other work.
Boyd v. Apfel, 239 F.3d 698, 704-05 (5th Cir. 2001); see also 20
C.F.R. § 404.1520. If the inquiry reaches the fifth step, the
burden is on the Commissioner to show that the claimant can
perform work existing in the national economy. Newton, 209 F.3d
at 453. If the Commissioner makes this showing, the burden shifts
back to the claimant to prove that he or she cannot perform the
work suggested. Muse, 925 F.2d at 789.
In this case, the ALJ determined that the work that Jones
had performed within the relevant time period was of insufficient
duration to qualify as past relevant work. The ALJ also
5
determined that Jones had non-exertional impairments that
qualified as “severe,” but that did not equal an impairment
listed in 20 C.F.R. pt. 404, subpt. P, app. 1. Because of these
findings, the ALJ’s inquiry reached step five, at which point,
after remand by the Appeals Council, the ALJ heard testimony from
a vocational expert. The ALJ concluded that there were jobs
existing in significant numbers in the national economy that
Jones could perform. As explained above, the Appeals Council
affirmed the ALJ’s decision.
Jones presents three issues for review: (1) whether the
district court applied an improper remand standard in declining to
remand Jones’s case to the Commissioner; (2) whether Jones’s new
evidence “meets the requirements of 42 U.S.C. § 405(g), sentence
six, or 20 C.F.R. § 416.1476(b)(1)” and therefore requires remand;
and (3) whether the ALJ erred as a matter of law by positing a
defective hypothetical question to the vocational expert.
A. The District Court Did Not Apply an Improper Remand Standard
Jones claims that the district court used the wrong standard
for remand when it adopted the magistrate’s report stating that
“[t]he undersigned agrees [with the Appeals Council] that the
additional evidence would not have led to a different decision by
the ALJ.” Jones argues that the correct remand standard under 42
U.S.C. § 405(g) is whether there exists a “reasonable
possibility” that the new evidence would have changed the outcome
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of the Commissioner’s determination.
Jones is correct that whether there is a “reasonable
possibility” that new evidence would have changed the outcome of
the Commissioner’s decision is the test that this circuit employs
to determine whether new evidence is “material” within the
meaning of § 405(g). Section 405(g) applies, however, where the
claimant presents new evidence to the district court that was not
reviewed by the Commissioner and thus was not made part of the
record.1 In this case, Jones presented no new evidence to the
district court. She did provide new evidence, the Greenway
report, to the Appeals Council, and the Appeals Council addressed
that evidence, specifically stating that “this information does
not provide a basis for changing the Administrative Law Judge’s
decision.” In Higginbotham v. Barnhart, 405 F.3d 332, 334 (5th
Cir. 2005), this court held that the Commissioner’s final
decision includes the Appeals Council’s denial of a claimant’s
request for review, and that new evidence submitted to the
Appeals Council becomes part of the administrative record. It
1
The relevant passage reads as follows: “The court may, on
motion of the Commissioner of Social Security made for good cause
shown before the Commissioner files the Commissioner’s answer,
remand the case to the Commissioner of Social Security for
further action by the Commissioner of Social Security, and it may
at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon a showing that
there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the
record in a prior proceeding . . . .” 42 U.S.C. § 405(g).
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follows, therefore, that the test set forth in § 405(g) for
whether evidence newly submitted to the district court requires
remand to the Commissioner has no application to this case. In
the statement Jones objects to, the magistrate was not applying a
standard for remand based on new evidence but rather was
affirming the Appeals Council’s assessment of evidence in the
record. Jones’s argument has no merit.
Jones raises several additional arguments, unrelated to the
remand standard, in this section. Jones argues that the district
court should have remanded the case because the Appeals Council
did not explain the weight that it gave to Jones’s new evidence.
In Higginbotham, however, we determined that such an explanation
was not required. 405 F.3d at 335 n.1. Moreover, Jones’s new
evidence did not so contradict earlier evidence that a
“weighing” of new and old evidence would be required. Dr.
Greenway stated that Shipley testing produced an IQ score in the
mildly mentally retarded range. Dr. Greenway also stated,
however, that Jones’s “[i]nterviewing suggests somewhat higher
adaptive skills” and that therefore “[s]he might more
appropriately be considered borderline intellectual
functioning.” Dr. Greenway’s report was therefore not
inconsistent with two earlier psychological evaluations stating
that Jones had “low average intelligence.”
Jones also argues that the district court erred by
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resolving a conflict in the evidence, that is, the conflict as
to whether Jones was mildly mentally retarded or had borderline
intellectual functioning. Jones cites Fifth Circuit caselaw for
the proposition that conflicts in the evidence should be
resolved by the Commissioner. The “conflict” in question,
however, was resolved first by Dr. Greenway, who stated
“borderline intellectual functioning” as his diagnosis, and
secondarily by the Appeals Council, which decided that the
Greenway report did not provide a basis for overturning the
ALJ’s decision. The district court properly deferred to the
Commissioner’s fact-finding.
Additionally, Jones argues that the district court could
not conduct a full review of the evidence because the record did
not contain Jones’s IQ scores. Jones cites Baker v. Bowen, 839
F.2d 1075, 1082 (5th Cir. 1988), where this court criticized the
Appeals Council for issuing a decision without reviewing a piece
of missing evidence. In that case, however, the missing
evidence-–the recording of the claimant’s administrative
hearing-–was a part of the administrative record. Jones’s IQ
scores were not part of the record, and so Baker is inapplicable
here. Jones further argues that the Appeals Council should have
recontacted Dr. Greenway to obtain the IQ scores because the
record was insufficient to permit a determination regarding
whether Jones was disabled. As explained above, however, Dr.
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Greenway’s report did not contradict two earlier psychological
evaluations that addressed Jones’s impairments. These multiple
reports provided a sufficient basis for determining the extent
of Jones’s limitations.2
B. The District Court Did Not Err by Declining to Remand the
Case
Jones argues that the district court should have remanded
her case “pursuant to 42 U.S.C. § 405(g), sentence six, or 20
C.F.R. § 416.1476(b)(1).” Neither of these provisions
accomplishes what Jones would like it to. 20 C.F.R.
§ 416.1476(b)(1) reads as follows:
In reviewing decisions based on an application for
benefits, the Appeals Council will consider the evidence in
the administrative law judge hearing record and any new and
material evidence only if it relates to the period on or
before the date of the administrative law judge hearing
decision. If you submit evidence which does not relate to
the period on or before the date of the administrative law
judge hearing decision, the Appeals Council will return the
additional evidence to you with an explanation as to why it
did not accept the additional evidence and will advise you
of your right to file a new application. . . .
Here, the Appeals Council abided by 20 C.F.R. § 416.1476(b)(1) by
2
This section also includes further unrelated arguments by
Jones. Jones suggests that the ALJ erred by failing to include
“somatoform disorder” as a severe impairment. Jones also appears
to argue that Dr. Greenway’s conclusion that Jones was
“functionally illiterate” placed the finding that Jones had a
“limited education” in jeopardy. We hold that these arguments are
waived for failure to brief adequately. See Robinson v. Guar.
Trust Life Ins. Co., 389 F.3d 475, 481 n.3 (5th Cir. 2004). Jones
also suggests that the ALJ erred by relying on Grid Rule 204.00.
The district court found, and we agree, that the ALJ relied on
vocational expert testimony, and not on the Grids, in making his
step five assessment.
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considering Jones’s new evidence, which related to the period
before the ALJ decision. It is not clear why Jones believes this
provision compels the district court to remand her case.
Elsewhere in her brief, Jones argues that by not returning
Jones’s evidence, the Appeals Council conceded that the evidence
was “material.” It is clear from its plain language, however,
that 20 C.F.R. 416.1476(b)(1) only requires return of the
evidence when it does not relate to the proper time period.
Section 405(g), as explained above, states the circumstances
in which new evidence submitted to the district court warrants
remand to the Commissioner. In this case, there was no evidence
submitted to the district court that was not part of the existing
record. Accordingly, there is no cause for remand on the basis of
new evidence.
C. The ALJ’s Defective Hypothetical Question Does Not Require
Reversal
This court has held that the hypothetical question posed to
the vocational expert by the ALJ must “incorporate reasonably all
disabilities of the claimant recognized by the ALJ.” Bowling v.
Shalala, 36 F.3d 431, 436 (5th Cir. 1994). Jones argues that the
hypothetical question the ALJ posed to the vocational expert was
defective because it did not include all of the impairments
recognized by the ALJ. The Appellee concedes that “the ALJ’s
hypothetical question to the vocational expert was arguably
inadequate,” but argues that “Ms. Jones’s representative cured
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any error on the part of the ALJ at step five by posing what both
parties agree was an adequate hypothetical question to the
vocational expert.” The Appellee notes that this court in Bowling
stated that “a determination of non-disability based on [] a
defective question cannot stand,” unless “the claimant or his
representative is afforded the opportunity to correct
deficiencies in the ALJ’s question by mentioning or suggesting to
the vocational expert any purported defects in the hypothetical
questions (including additional disabilities not recognized by
the ALJ’s findings and disabilities recognized but omitted from
the question).” Id.In this case, the ALJ recognized that Jones possessed the
following impairments: moderate limitations in her daily living
activities; mild limitations in maintaining social functioning;
moderate limitations in maintaining concentration, persistence and
pace; and moderate limitations in ability to understand, remember,
and carry out detailed instructions. The ALJ found that Jones would
have difficulty accepting instructions and responding appropriately
to supervisors and would have difficulty with changes in work
setting and with making plans independently of others. In his
hypothetical question to the vocational expert, however, the ALJ
specified only “moderately restricted daily activities, mildly
restricted social functioning and mildly restricted difficulties in
maintaining concentration, persistence, or pace.” This question
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recasts Jones’s recognized “moderate” restrictions in maintaining
concentration, persistence, and pace as less-severe “mild”
restrictions. It also omits the ALJ’s findings that Jones would
have difficulty with understanding and carrying out instructions
and responding appropriately to supervisors and with changes in
work setting and making plans independently. In response to this
question, and incorporating Jones’s tenth grade education, the
vocational expert concluded that Jones could obtain work as a hand
packer or packager, freight, stock and material handler, or stock
handler and bagger, jobs existing in the hundreds of thousands in
the United States.
Jones’s attorney at the hearing then asked a hypothetical
question that incorporated “moderate limitations of ability to take
criticism, ability to remember and carry out detailed instructions”
as well as moderate limitations in the “ability to respond
appropriately to changes in the work setting and the ability to
meet realistic goals in the work place.” The vocational expert
responded that the addition of these limitations “would not effect
[sic] the numbers,” that is, the numbers of jobs he had previously
stated Jones could perform.
It is clear from the above recitation that the ALJ’s question
was defective in that it omitted several recognized impairments.
Jones’s counsel’s question, on the other hand, came much closer to
encompassing the range of impairments the ALJ had recognized.
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Appellee argues, relying on Bowling, that Jones’s counsel’s proper
question cured the defect in the ALJ’s question. But logic
prescribes that counsel’s question can compensate for the ALJ’s
defective question only when the ALJ, in making his final
determination, relies on the vocational expert’s answer to
counsel’s question and not on the answer to the ALJ’s own defective
question.
It is not clear from the ALJ’s written opinion whether the ALJ
relied on the answer to his question or to Jones’s counsel’s
question. In his opinion, the ALJ appears to adopt counsel’s
hypothetical question as his own question. In this case, however,
it is ultimately irrelevant whether the ALJ relied on the answer to
his question or to Jones’s counsel’s question, because the two
answers were the same. Even if the ALJ relied on the answer to his
own defective question, Jones was not prejudiced, because the
vocational expert gave the same answer to Jones’s counsel’s
question. “Procedural perfection in administrative proceedings is
not required. This court will not vacate a judgment unless the
substantial rights of a party have been affected.” Mays v. Bowen,
837 F.2d 1362, 1364 (5th Cir. 1988).
IV. CONCLUSION
For the reasons stated above, we affirm the judgment of the
district court upholding the Commissioner’s denial of social
security benefits.
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AFFIRMED.
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