Joyce Jones v. Michael Astrue, Commissioner

Case: 11-30975 Document: 00511961604 Page: 1 Date Filed: 08/20/2012

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

FILED
August 20, 2012
No. 11-30975
Lyle W. Cayce
Clerk

JOYCE DARLENE JONES,

Plaintiff-Appellant,

versus

MICHAEL J. ASTRUE, Commissioner of Social Security,

Defendant-Appellee

Appeal from the United States District Court
for the Middle District of Louisiana

Before REAVLEY, SMITH, and CLEMENT, Circuit Judges.
JERRY E. SMITH, Circuit Judge:
The Commissioner of Social Security determined that Joyce Jones was
ineligible for disability benefits, and the district court agreed. On appeal, Jones
argues that the administrative law judge (“ALJ”) improperly disregarded evi-
dence from one of her treating physicians without re-contacting him to obtain
further documentation. Because (1) the ALJ had no duty to re-contact that phy-
sician where the record contained sufficient evidence from other physicians and
(2) any error was harmless even if the ALJ were required to re-contact the
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No. 11-30975
doctor, we affirm.

I.
Jones applied for disability insurance benefits (“DIB”) and supplemental
security income (“SSI”). The ALJ determined that she was entitled to SSI but
denied DIB; the Appeals Council agreed. Jones sought judicial review in the dis-
trict court, which upheld the Commissioner’s decision.
Jones was last insured for disability benefits on December 31, 2005, so to
receive DIB, she must establish disability on or before that date. She filed her
initial application in 2004, but that application was denied in April 2005. She
requested a hearing, which was conducted in June 2007. The ALJ issued an
adverse decision finding that Jones’s ailments were severe impairments but did
not meet or equal the requirements of any listed impairment.
After consideration of the medical evidence and the record as a whole, the
ALJ found that beginning on April 16, 2007, Jones had the residual functional
capacity (“RFC”) to lift and carry ten pounds occasionally, stand and walk two
hours in a workday, sit six hours in a workday, with the ability to push and pull
limited by the weight she was able to lift and carry. The ALJ found that Jones
was able to perform detailed but not complex work activities and was able to
perform tasks requiring no more than limited interaction with the public. He
also found that given Jones’s age, education, work experience, and RFC, there
were not a significant number of jobs in the national economy that she could per-
form. Therefore, the ALJ found that beginning April 16, 2007, Jones was disa-
bled and entitled to SSI.
The ALJ found, however, that before that date, Jones had the RFC to lift
and carry ten pounds frequently and twenty pounds occasionally, to stand and
walk six hours in a workday, and to sit six hours in a workday. Again, the ALJ
found that Jones was able to perform detailed but not complex work activities

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No. 11-30975
and was able to perform tasks requiring no more than limited interaction with
the public. Because the ALJ found that Jones was unable to perform her past
relevant work, he enlisted the testimony of a vocational expert to determine
whether there were other jobs that Jones could perform. Based on the evidence
in the record and the testimony of the vocational expert, the ALJ found that
Jones could perform other jobs existing in significant numbers in the national
economy, so she was not disabled within the meaning of the Social Security Act
at any time before April 16, 2007. Because she was not disabled on the date she
was last insured for disability benefits, she was not entitled to DIB.

II.
In reviewing the Commissioner’s eligibility determination, a federal court
considers only whether the Commissioner applied the proper legal standards
and whether substantial evidence in the record supports his decision. Greenspan
v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). A court will reverse the ALJ’s deci-
sion as not supported by substantial evidence if the claimant shows that (1) the
ALJ failed to fulfill his duty to develop the record adequately and (2) that failure
prejudiced the plaintiff. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996).
Jones contends that the ALJ did not satisfy that duty, because he failed
to order more medical records from Dr. Henry Young, one of Jones’s physicians.
Jones supplied a two-page checklist from Young indicating his opinion that
Jones suffered from a variety of ailments, partially contradicting some of the
ALJ’s conclusions.1 The ALJ gave no weight to Young’s checklist, because it was

1
Young checked boxes indicating that Jones was unable to carry ten pounds frequently
or twenty pounds occasionally, stand or walk six hours a day, or sit six hours a day. He also
checked “no” on the line asking whether any of his answers on the sheet would have been dif-
ferent at any time during the time he treated Jones, which Jones contends extends to the time
she was covered by disability insurance. We assume for purposes of argument that Young was
a treating physician and did in fact treat Jones before her disability insurance expired.

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No. 11-30975
conclusional and was supported by no objective evidence.2 Jones argues that
20 C.F.R. § 404.1512(e)(1) (eff. Aug. 1, 2006, to June 12, 2011) required the ALJ
to contact Young to ensure that he did not have any more records that might
lend support to his conclusions. Because the record contained ample objective
and opinion evidence supporting the ALJ’s conclusions, however, he was not
required to develop the record further by contacting Young. Cornett v. Astrue,
261 F. App’x 644, 648-49 (5th Cir. 2008) (per curiam).
The regulation Jones cites does not require the ALJ to order more evidence
where the record is sufficient to establish whether the claimant is disabled. The
Commissioner is required to recontact a medical source “[w]hen the evidence . . .
from [the] treating physician or psychologist or other medical source is inade-
quate for [the Commissioner] to determine whether [the claimant is] disabled.”
20 C.F.R. § 404.1512(e) (eff. Aug. 1, 2006, to June 12, 2011). Evidence from other
treating sources can suffice to allow the ALJ to determine whether the claimant
is disabled.3 The ALJ is required to request more documentation only where
there is no relevant evidence from other treating sources.
That is not the case. The ALJ had hundreds of pages of records from
Jones’s previous application and ninety-three pages of supplementary records
from seven different physicians that Jones had submitted by the time of her
hearing. The records included objective evidence on which the ALJ’s report
relies most heavily: an MRI from 2005 and x-rays from 2006 provided by Jones’s

2
The ALJ’s report states, “The claimant’s representative has also submitted a medical
source statement, dated June 11, 2007, from Henry T. Young, M.D. There are no progress
notes, however, and no other evidence to indicate whether Dr. Young is a treating source. No
weight has been given the opinion of Dr. Young.”
3
See Cornett, 261 F. App’x at 649 (“[T]he ALJ’s need to contact a medical source arises
only when the available evidence is inadequate to determine if there is a disability.”); Holifield
v. Astrue, 402 F. App’x 24, 27 (5th Cir. 2010) (“Because the record in this case contains medical
opinion evidence from treating physicians . . . the ALJ had no duty to recontact [the doctor
that submitted the unsubstantiated report].”).

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No. 11-30975
treating physicians. The ALJ also relied on the fact that Jones’s physicians had
prescribed her pain medication meant to treat only mild to moderate pain,
Jones’s acknowledgment at her hearing that she had the ability to do laundry
and some housework, and a treating physician’s opinion from 2005 that Jones
had good range of motion in her hands, wrists, elbows, shoulders, hip, and knee.
Jones cites Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000), to support her
contention that the ALJ must attempt to order more records before finding a
treating physician’s opinion to be unsupported. As the magistrate judge’s report
notes, however, the holding in that case is more qualified:
[I]f the ALJ determines that the treating physician’s records are
inconclusive or otherwise inadequate to receive controlling weight,
absent other medical opinion evidence based on personal examina-
tion or treatment of the claimant, the ALJ must seek clarification or
additional evidence from the treating physician in accordance with
20 C.F.R. § 404.1512(e).
Id. at 453 (emphasis added). Here, the record contained other medical opinion
evidence from treating physicians, as noted above.4 Therefore, the ALJ was not
required to request more documents from Young.5

4
Jones also cites Hyde v. Astrue, No. 07-30748, 2008 U.S. App. LEXIS 10228 (5th Cir.
May 12, 2008) (unpublished), to support her broader construction of 20 C.F.R. § 404.1512(e).
The language in that case does bolster her construction: “The duty to [recontact the treating
physician] is not contingent on the adequacy of the record, but on the adequacy of the report
received from the treating physician.” Id. at *7. Nevertheless, the result in Hyde is consistent
with our narrower interpretation of the regulation, because the ALJ in that case rejected the
views of the only physician to treat the claimant during the relevant time period. Id. at *9-10.
5
The ALJ satisfied his duty to develop a complete record of Jones’s medical history
under the first clause of 20 C.F.R. § 404.1512(d). In addition, because Jones was represented
by counsel and had an opportunity to testify at the hearing regarding her disability, the ALJ
was under no additional obligation to make a “reasonable effort” to obtain Young’s records,
pursuant to the second clause of § 404.1512(d). See Vine v. Astrue, No. 3:10-895-BK, 2010 WL
4791487, at *6 (N.D. Tex. Nov. 18, 2010) (holding that the ALJ’s “duty to fully develop the rec-
ord is heightened when the claimant is pro se . . . [but] [a]n ALJ may satisfy this heightened
duty by asking the claimant about his medical condition, the effectiveness of treatment, how
the claimant’s daily routine has been affected by his medical problems, his ability to perform
various tasks, and by inviting the claimant to include anything else in the record.”).

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No. 11-30975
III.
Even if we did find that the ALJ was required to request further documen-
tation, we would affirm, because Jones has not met her burden of showing that
any error was prejudicial.6 She has offered no evidence that additional records
from Young would have had an effect on the judgment or that they even exist.
The party seeking to overturn the Commissioner’s decision has the burden
to show that prejudice resulted from an error.7 A mere allegation that additional
beneficial evidence might have been gathered had the error not occurred is insuf-
ficient to meet this burden.8 But Jones asserts only that “the records and the
findings of Young might tip the balance in plaintiff’s favor,” so she has not met
her burden to show that any error was harmful.9
The judgment is AFFIRMED.

6
See Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (noting that “‘procedural per-
fection in administrative proceedings is not required’ as long as ‘the substantive rights of a
party have not been affected’”) (citation omitted).
7
Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000); see also Shinseki v. Sanders, 556
U.S. 396, 409 (2009) (“[T]he burden of showing that an error is harmful normally falls upon
the party attacking the agency’s determination.”).
8
Carey, 230 F.3d at 142 (“This Court will not reverse the decision of an ALJ for failure
to fully and fairly develop the record unless the claimant shows that he or she was prejudiced
by the ALJ’s failure . . . . To establish prejudice, a claimant must demonstrate that he or she
could and would have adduced evidence that might have altered the result.” (internal quota-
tions and citations omitted)); see also Castillo v. Barnhart, 325 F.3d 550, 552 (5th Cir. 2003)
(“[The claimant] points to no evidence that would have been adduced and that could have
changed the result had [she] been represented by an attorney, and therefore has not demon-
strated that she was prejudiced due to the absence of counsel at the hearing.” (internal quota-
tions and citation omitted)).
9
See Hyde, 2008 U.S. App. LEXIS 10228, at *11 (“Something more then a speculative
assertion that medical records might exist and might clarify earlier records is necessary, such
as perhaps a statement from the doctor that such records exist and do confirm an earlier
diagnosis.”).

6