Heather Hurst v. Carolyn Colvin, Acting Cmsnr

Case: 15-30462 Document: 00513378583 Page: 1 Date Filed: 02/12/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 15-30462
Summary Calendar
United States Court of Appeals
Fifth Circuit

FILED
February 12, 2016
HEATHER HURST,
Lyle W. Cayce
Clerk
Plaintiff–Appellant,

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

Defendant–Appellee.

Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:13-CV-134

Before KING, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
After the Social Security Administration denied Heather Hurst’s
application for disability insurance benefits, Hurst filed a complaint in district
court seeking review of the decision. The district court affirmed the denial of
benefits and Hurst appealed. We affirm the district court and uphold the
denial of benefits as supported by substantial evidence.

* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30462
I
Hurst applied for disability benefits in November 2010, alleging a
disability dating back to October 2009 based on lupus, plaque psoriasis, and
depression. Her application for benefits stated that she worked as an assistant
director and then as a director at a daycare facility but had to stop working
due to her symptoms, which included joint pain, swelling, and lesions over
much of her body. After her application was denied, she requested and
received an administrative hearing.
The administrative law judge (ALJ) concluded that Hurst was not
disabled for purposes of the Social Security Act. As relevant here, the ALJ
found that although Hurst’s obesity and psoriatic arthritis were severe
impairments, she did not have an impairment listed in Appendix 1 of the
regulations and retained the residual functional capacity to perform sedentary
work, including her prior position as a daycare director. 1 The agency’s Appeals
Council denied review.
Hurst then filed a complaint in district court. The district court affirmed
the agency’s denial of benefits, adopting the magistrate judge’s
recommendation and report. That report concluded that the agency’s decision
was supported by substantial evidence. It noted that while the ALJ
erroneously stated that Hurst failed to argue that her conditions satisfied the
requirements of any impairment listed in Appendix 1, that error was harmless.
Hurst timely appealed.

1Throughout the text and citations of this opinion, “Appendix 1” refers to the listing
of impairments found in Appendix 1 to Subpart P of 20 C.F.R. pt. 404.
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No. 15-30462
II
Our review of disability benefit determinations “is limited
under 42 U.S.C. § 405(g) to two inquiries: (1) whether substantial evidence of
record supports the decision; and (2) whether the decision comports with
proper legal standards.” 2 “In applying the ‘substantial evidence’ standard, we
‘may not reweigh the evidence in the record, nor try the issues de novo, nor
substitute the Court’s judgment’” for the judgment of the ALJ. 3
The Social Security Act defines disability as the “inability to engage in
any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected . . . to last for a
continuous period of not less than 12 months.” 4 By regulation, the Social
Security Administration follows a five-step process to determine whether a
claimant is disabled. 5 In the first two steps, not at issue here, the claimant
must show she is not currently engaged in substantial gainful activity and has
a severe impairment. 6 Third, she must show that her impairment “meets or
equals the severity of an impairment listed” in Appendix 1. 7 If she makes such
a showing, the inquiry is at an end and the claimant is entitled to benefits; 8
otherwise, we proceed to step four, in which she must show her impairment
“prevents [her] from doing past relevant work.” 9 If she does so, she is entitled
to benefits unless, at step five, the agency shows that the impairment does not
prevent her from “mak[ing] an adjustment to other work.” 10

2 Morgan v. Colvin, 803 F.3d 773, 776 (5th Cir. 2015).
3 Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (per curiam) (brackets omitted)
(quoting Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir. 1988) (per curiam)).
4 42 U.S.C. § 423(d)(1)(A).
5 20 C.F.R. § 404.1520(a)(4); Sun v. Colvin, 793 F.3d 502, 507 (5th Cir. 2015).
6 Sun, 793 F.3d at 507 n.2.
7 Id. (quoting Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005)).
8 20 C.F.R. § 404.1520(d).
9 Sun, 793 F.3d at 507 n.2 (quoting Perez, 415 F.3d at 461).
10 20 C.F.R. § 404.1520(a)(4)(v).

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No. 15-30462
III
A
Hurst first contends that the ALJ applied the incorrect legal standard at
step three of the analysis by failing to consider Hurst’s eligibility for benefits
under § 8.05 of Appendix 1, which concerns “extensive skin lesions that persist
for at least 3 months despite continuing treatment as prescribed.” 11
As an initial matter, we acknowledge that the ALJ’s statement that
Hurst “advanced no argument that he [sic] has a condition which meets . . . the
requirements of a listed impairment” was incorrect. Indeed, Hurst’s attorney
argued in the pre-hearing brief and at the hearing that Hurst’s impairments
met or were equivalent to sections 8.05 (dermatitis) and 14.09 (inflammatory
arthritis) of Appendix 1. Hurst, citing this court’s decision in Audler v.
Astrue, 12 argues that the ALJ’s failure to address her section 8.05 claim
requires remand because the decision denying benefits amounts to a “bare
conclusion . . . beyond meaningful judicial review.”
Audler, however, does not stand for the proposition that the ALJ’s failure
to address a claimant’s argument always warrants remand. After determining
that the ALJ’s conclusory rejection of Audler’s argument was not supported by
a reasoned discussion of the issues, this court then inquired whether that error
was harmless. 13 “Procedural perfection in administrative proceedings is not
required,” we noted, “as long as the substantial rights of a party have not been
affected.” 14 We remanded Audler’s claim for further proceedings only after
analyzing the record, which included uncontradicted evidence of severe
limitations, and concluding that “[a]bsent some explanation from the ALJ to

11 Appendix 1, § 8.05.
12 501 F.3d 446, 448 (5th Cir. 2007).
13 Id.
14 Id. (internal quotation marks omitted) (quoting Mays v. Bowen, 837 F.2d 1362, 1364

(5th Cir. 1988) (per curiam)).
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No. 15-30462
the contrary, Audler would appear to have met her burden of demonstrating”
that her condition met the requirements of a condition listed in Appendix 1. 15
Whether Hurst’s claims require remand depends on whether the ALJ’s error
“cast[s] into doubt the existence of substantial evidence to support the ALJ's
decision,” the question to which we now turn. 16
B
Hurst claims the administrative decision denying benefits at step three
“include[d] material misstatements of fact” and “neglected to consider highly
relevant evidence.” She seeks, among other things, a remand to determine
whether her conditions qualified as an impairment under section 8.05 of
Appendix 1.
Section 8.05 is the listing for “dermatitis . . . with extensive skin lesions
that persist for at least 3 months despite continuing treatment as prescribed.”
“Extensive skin lesions,” in turn, “are those that involve multiple body sites or
critical body areas, and result in a very serious limitation.” 17 As examples of
conditions that amount to “very serious limitations” in the context of this
section, the regulation cites lesions that “very seriously limit” the “use of more
than one extremity,” “ability to do fine and gross motor movements,” or “ability
to ambulate.” 18
Although the ALJ failed to cite section 8.05 in her decision, she did cite
considerable evidence that bolstered her conclusion that Hurst “does not have
an impairment or combination of impairments that meets or medically equals
the severity” of an impairment listed in Appendix 1. The ALJ’s step-three
analysis focuses on the assessment of Dr. Angele Bourg, who asserted that

15 Id. at 449.
16 Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988) (per curiam).
17 Appendix 1, § 8.00(C)(1).
18 Id.

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No. 15-30462
Hurst was disabled because she “would always have difficulty with
ambulation.” Noting that treatment records revealed “no evidence of
ineffective ambulation as defined in the listings,” the ALJ gave little weight to
Dr. Bourg’s opinion. Elsewhere, in her examination of Hurst’s residual
functional capacity for purposes of the step-four analysis, the ALJ discussed a
variety of evidence tending to show that Hurst’s statements concerning the
“intensity, persistence and limiting effects” of her symptoms were not fully
credible. This evidence included a paucity of documented complaints of
functional limitations in the medical records and examination findings that
revealed no severe limitations. As the magistrate judge noted, the record also
includes hearing testimony that Hurst is sometimes able to drive, perform
household chores, care for her child, use a computer, and shop. Taken together,
this evidence supports a conclusion that Hurst’s lesions do not give rise to a
very serious limitation within the meaning of the regulations. We thus
conclude that the ALJ’s failure to explicitly consider section 8.05 was harmless
error. 19
Hurst urges us to reach a different conclusion, noting that she has a
history of “severe flares of psoriasis,” uses various medications, and is (among
other things) “unable to get out of bed some mornings.” As we have noted,
Hurst’s evidence is not sufficient to meet her burden of demonstrating
entitlement to benefits unless it demonstrates that her condition results in
very serious limitations. Labelling a symptom “severe” or noting that it has
persisted despite treatment is not enough. Hurst takes issue with the ALJ’s
resolution of conflicting medical opinions and alleges that the ALJ “ignored
highly relevant medical evidence” and mischaracterized parts of the medical

19Compare Appendix 1, § 8.00(C)(1) (condition must result in “very serious limitation”
to qualify), with id. § 14.09(e)(1) (“Listing-level severity in [this section] is shown by an
impairment that results in an ‘extreme’ (very serious) limitation.”).
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No. 15-30462
record, including the frequency of Hurst’s visits to physicians and her use of
medications. For the reasons described above, however, we conclude that there
is no doubt that “credible evidentiary choices or medical findings support” the
ALJ’s decision. 20 Finally, Hurst asserts that the district court was “retrying
the case” and substituting its judgment for the judgment of the Commissioner,
but the court below undertook only the analysis necessary to determine
whether the ALJ’s procedural error affected the substantial rights of the
claimant. The district court held that it did not, and we agree.
Analysis under section 14.09 of Appendix 1, which addresses
inflammatory arthritis, yields the same result. Section 14.09 encompasses
inflammation—often accompanied by joint pain, swelling, and tenderness—
“that results in an ‘extreme’ (very serious) limitation.” 21 The ALJ explicitly
considered Hurst’s eligibility for benefits under this section, and the credibility
determinations and analysis of the medical evidence are—for the reasons
discussed above—supported by substantial evidence.
To the extent Hurst challenges the ALJ’s conclusion at step four that she
retained the functional capacity to perform her prior work, we find that the
ALJ’s determinations in this regard are likewise amply supported by
substantial evidence. The evidence discussed above—including the treatment
notes and Hurst’s testimony at her hearing—are sufficient to support the ALJ’s
finding that Hurst is able to perform sedentary work.
C
Finally, Hurst faults the ALJ for failing to consider a closed period of
disability. Hurst posits that even though her May 2011 visit to a physician
“document[ed] improvement” in her condition, the ALJ should have considered

20 Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000).
21 Appendix 1, § 14.09(a), (e)(i).
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No. 15-30462
whether Hurst was disabled for some twelve-month period ending before that
time. We disagree. The ALJ considered the entire medical record, including
evidence relating to visits within the twelve months following the asserted
onset of disability, in reaching her conclusion.
* * *
For the foregoing reasons, the judgment of the district court is
AFFIRMED.

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