Hammond v. Barnhart

United States Court of Appeals

Fifth Circuit

F I L E D

In the March 8, 2005

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

_______________

m 04-20107

_______________

KATHERINE E. HAMMOND,

Plaintiff-Appellant,

VERSUS

JO ANNE B. BARNHART,

COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,

Defendant-Appellee.

_________________________

Appeal from the United States District Court

for the Southern District of Texas

m H-02-CV-4171

______________________________

Before DAVIS, SMITH, and DEMOSS, Katherine Hammond appeals a summary

Circuit Judges. judgment in favor of the Commissioner of So-

cial Security denying her application for dis-

JERRY E. SMITH, Circuit Judge:* ability insurance and supplemental security in-

come benefits. Finding no error, we affirm.

I.

*

Hammond applied for disability insurance

Pursuant to 5TH CIR. R. 47.5, the court has de-

benefits and supplemental security income ben-

termined that this opinion should not be published

efits, alleging disability starting in July 1997.

and is not precedent except under the limited cir-

cumstances set forth in 5TH CIR. R. 47.5.4.

She claims she could not work because of

ulceritive colitis, immune deficiency disease, mond’s pro se status.2 Second, Hammond

irritable bowel syndrome, diarrhea, weakness, contends that (1) the record lacks substantial

nausea, stomach pain, headaches, and support for the ALJ’s finding that Hammond’s

malapsortion; she also said she was depressed. depression was not severe and (2) the severity

The Commissioner denied the claim. was determined without considering the opin-

ions of two state agency psychological consul-

Hammond obtained a hearing before an ad- tants. Finally, Hammond argues that the Ap-

ministrative law judge (the “ALJ”) in July peals Council erred in failing to remand the

1999. She appeared pro se. The ALJ denied case to consider sixty pages of new medical

Hammond’s request for benefits, finding that records not introduced at the administrative

although she suffered from irritable bowel syn- hearing.

drome and major depression, neither im-

pairment was sufficiently severe to qualify as a II.

severe disability within the meaning of the The Commissioner conducts a five-step se-

Social Security Act (the “Act”). Hammond quential analysis in evaluating a disability

then filed a pro se request for review by the claim, see Bowling v. Shalala, 36 F.3d 431,

Appeals Council, which denied the request, 435 (5th Cir. 1994), and determines (1) wheth-

whereupon Hammond retained counsel and er the claimant is presently working;

urged the Appeals Council to reconsider,1 (2) whether the claimant has a severe impair-

which was denied. ment; (3) whether the impairment meets or

equals an impairment listed in appendix 1 of

Hammond sued, and both sides moved for the social security regulations; (4) whether the

summary judgment. The magistrate judge, sit- impairment prevents the claimant from doing

ting as the district court by consent, granted past relevant work; and (5) whether the im-

the Commissioner’s motion and denied Ham- pairment prevents the claimant from doing any

mond’s, holding that the ALJ had not legally other substantial gainful activity, see id. A

erred and that substantial evidence supported finding that a claimant is not disabled at any

the finding that Hammond was not disabled. point in the five-step process terminates the in-

quiry. See Crouchet v. Sullivan, 885 F.2d

Hammond appeals on three grounds. First, 202, 206 (5th Cir. 1989).3 Title 42 U.S.C.

she argues that the ALJ abrogated his height- § 423(d)(1)(A) defines disability as an “in-

ened duty to develop the facts in light of Ham- ability to engage in any substantial gainful

activity by reason of any medically determina-

2

Hammond appeared pro se for a portion of the

proceedings.

1

Hammond urged the Appeals Council to re-

3

consider because, she argued, the ALJ’s decision On the first four steps of the analysis, the

was not supported by substantial evidence, the ALJ claimant bears the burden of showing he is disab-

applied incorrect legal standards, and new evidence led. See Wren v. Sullivan, 925 F.2d 123, 125 (5th

not introduced at the hearing established the sever- Cir. 1991). On the fifth, the Commissioner must

ity of her depression. She also asserted the ALJ’s show that there is other, substantial work in the

finding that her irritable bowel syndrome was not national economy that the claimant can perform.

severe lacked support in the record. See id.

2

ble physical or mental impairment which can III.

be expected to result in death or which has Hammond claims that, because she was ap-

lasted or can be expected to last for a continu- pearing pro se, the ALJ had a heightened duty

ous period of not less than 12 months . . . .” to develop facts regarding the severity of her

impairment at the administrative hearing. We

The ALJ determined that Hammond was do not consider this issue, because Hammond

not disabled at the second step of the analysis, raises it for the first time on this appeal. See

finding that her impairment was not severe. Leverette v. Louisville Ladder Co., 183 F.3d

“[A]n impairment can be considered as not 339, 342 (5th Cir. 1999).

severe only if it is a slight abnormality [having]

such minimal effect on the individual that it IV.

would not be expected to interfere with the Hammond attacks the factual sufficiency of

individual’s ability to work, irrespective of the record the Commissioner relied on in de-

age, education or work experience.” Stone v. nying benefits. Hammond argues that (1) the

Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) Commissioner reached her decision without

(internal quotations and citations omitted). sufficiently considering the opinions of two

state agency psychological consultants and

Our review is limited to determining wheth- (2) the record lacks substantial evidence in

er there is substantial evidence in the record support of the Commissioner’s finding.

supporting the Commissioner’s decision to

deny benefits and whether the Commissioner A.

applied proper legal standards in doing so.4 The record contains a Psychiatric Review

Substantial evidence is “that which is relevant Technique form completed by a state agency

and sufficient for a reasonable mind to accept psychological consultant, A. Boulos, M.D.,

as adequate to support a conclusion; it must be and affirmed by another, Mehdi Sharihan,

more than a scintilla, but it need not be a M.D.5 Hammond argues that the law requires

preponderance.” Leggett v. Chater, 67 F.3d the ALJ to consider carefully all medical opin-

558, 564 (5th Cir. 1995) (quoting Anthony v. ions, both from sources who have treated or

Sullivan, 954 F.2d 289, 295 (5th Cir.1992)). examined the claimant and for nonexamining

sources such as medical professionals affiliated

We may not reweigh the record evidence, with the disability program. She contends that

try the issues de novo, or substitute our judg- the ALJ failed to consider these doctors’

ment for that of the Commissioner. See John- opinions in t he manner 20 C.F.R.

son, 864 F.2d at 343. If, under these criteria, § 404.1527(f)(2) requires.6

substantial evidence supports such findings,

they are conclusive. See 42 U.S.C. § 405(g);

Richardson v. Perales, 402 U.S. 389, 401 5

The record contains several different spellings

(1971).

of the name of the person we refer to as Sharihan.

6

That regulation requires that “[u]nless the

treating source’s opinion is given controlling

4

See Greenspan v. Shalala, 38 F.3d 232, 236 weight, the [ALJ] must explain in the decision the

(5th Cir. 1994); Johnson v. Bowen, 864 F.2d 340, weight given to the opinions of a State agency

347 (5th Cir. 1998). medical or psychological consultant or other pro-

3

We have three observations regarding He concluded in his final “Functional Capacity

Hammond’s argument. First, although there is Assessment” that she retained the ability to

no statutorily or judicially imposed obligation understand and follow simple instructions, to

for the ALJ to list explicitly all the evidence he interact adequately with coworkers and super-

takes into account in making his findings, § visors, and to adapt to routine working envi-

404.1527(f)(2) does require that the ALJ ronments.9

articulate the weight given to experts in the

positions of Boulos and Sharihan. The ALJ Our t hird observation is that if, in the al-

therefore erred in failing to provide such an ternative, one believed the forms filled out by

explanation.7 Our second and third obser- Boulos and affirmed by Sharihan undermined

vations, however, explain why we consider the the ALJ’s finding of insufficient severity, they

error harmless.8 would not do so to the degree necessary for us

to overturn the ALJ’s determination on sub-

Either the evidence in Boulos’s and Shari- stantial evidence review. The ALJ’s failure to

han’s reports supports and confirms the ALJ’s mention a particular piece of evidence does

finding, or it does not. We consider both pos- not necessarily mean that he failed to consider

sibilities. Our second observation is that, even it, and the ALJ’s decision states explicitly that

though the ALJ erred in failing explicitly to he considered the entire record in his decision.

weigh the relevant evidence, the opinions ex- In ruling on the severity of Hammond’s condi-

pressed by Boulos and Sharihan seem to con- tion, he likely made the same fact-based judg-

firm those of the other medical experts. ments that form the basis of our refusal to

overturn his decision on substantial evidence

Under this reading of the record, the error review.10 We discuss this evidence more thor

would obviously be harmless. When rating the oughly in the subsequent subsection.

severity of Hammond’s impairment, Boulos

indicated that Hammond’s mental disorder

only slightly limited her daily activities, in- 9

There is evidence that Boulos did not consider

cluding the range of her social interactions. Hammond’s conditions particularly severe. In the

“Rating of Impairment Severity” section, Boulous

found that no functional limitations met the degree

gram physician or psychologist . . . .” 20 C.F.R. of impairment necessary to satisfy the Listings (of

§ 404.1527(f)(2)(ii). disorders). The medical form indicates that, for an

impairment to satisfy the Listings, it must be

7

The district court’s holding that the ALJ need marked, extreme, constant, or continual. In other

not furnish such an explanation is therefore over- words, although the form indicates that Hammond

ruled, but this decision does not affect the outcome, “often” suffered deficiencies of concentration, that

as we explain. level of severity is less than a “frequent” limitation,

the degree that appears to be necessary to qualify

8

The harmless error doctrine applies in Social Hammond’s impairment as “severe” under the

Security disability cases. See Morris v. Bowen, relevant legal and medical criteria.

864 F.2d 333, 335 (5th Cir. 1998). “Procedural

10

perfection in administrative proceedings is not req- Procedural errors constitute bases for remand

uired” as long as “the substantial rights of a party only where they cast into doubt the existence of

have not been affected.” Id. (quoting Mays v. substantial evidence to support the ALJ’s decision.

Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)). See Morris, 864 F.2d at 335.

4

B. shalani whether Hammond had “any objective

Hammond contends that there is no record work-related restrictions,” he responded that

evidence supporting the finding that her im- such restrictions were “[n]ot evident in the

pairments of irritable bowel syndrome and de- record, pertaining to the mental component.”

pression are not severe. Again, in Stone, 752

F.2d at 1101, we stated that “an impairment Psychiatrist Kathy Scott-Gurnell conducted

can be considered as not severe only if it is a a consultive psychiatric examination of Ham-

slight abnormality [having] such minimal effect mond in April 1998 and reported that Ham-

on the individual that it would not be expected mond had left her job because of stress and

to interfere with the individual’s ability to crying spells, that her concentration was poor,

work, irrespective of age, education, or work that she was isolative, that she had feelings of

experience.” hopelessness, that she occasionally had suicidal

ideation, that she had good and bad days, and

Having reviewed Hammond’s psychiatric that she had an anxiety attack in 1997. Scott-

record, Ashok Khushalani, a psychiatrist, tes- Gurnell nonetheless determined that when

tified before the ALJ: Hammond’s colitis was not active, she could

perform all activities of daily living. Based on

[T]here’s not much of a history of psychiat- this examination, Scott-Gurnell concluded that

ric treatment in the record. The only refer- Hammond’s insight and judgment were good

ence to a [sic] depression is in a psychiatric but that her concentration was impaired.12

consultative report done by Dr. Gunnell Although Scott-Gurnell assigned Hammond a

[sic] in April of 1999. That makes refer- Global Assessment of Functioning (“GAF”)

ence to her being diagnosed in the past with score of 40 (a score that could be consistent

depression, and having been treated with with a severe impairment), the ALJ determined

certain anti-depressants. Other than that, that Hammond’s specific impairments were

there’s no record of any ongoing treatment, not severe.13

except that she’s on Paxil, which is an anti-

depressant, and that she’s been stable as it

relates to her depression on the Paxil. But Fort Bend Family Health Clinic in February 1998,

there is no ongoing evidence of any where she reported that she had been depressed for

significant symptoms of depression or that six years and had previously, but was no longer,

the symptoms are interfering in any kind of taking Zoloft. She also reported chest tightness

functioning. and shortness of breath, conditions that may have

been anxiety-induced. Hammond was referred to

Khushalani’s characterization of Hammond’s social services for anxiety, depression and panic at-

psychiatric treatment history is consistent with tacks, and she was placed on the antidepressant

the appellate record.11 When the ALJ asked Khu Trazodone.

12

Scott-Gurnell noted that Hammond had so-

matic and psychiatric conditions that were sensitive

11

The first appearance of depression in the rec- to stress and that the prognosis was “fair but good

ord is a treatment note from Dr. D.T. Shah in if mental illness [were] treated to remission.”

March 1995, stating that Hammond was taking Ef-

13

fexor, a common antidepressant. The next treat- Specifically, the ALJ determined that Scott-

ment notes are from a visit Hammond made to the Gurnell’s findings were not substantiated by the

5

The record also contains medical records decompensation in a work-like setting.

concerning Hammond’s depression from Mark

Stone, a general practitioner who treated The ALJ did not explicitly mention Scott-

Hammond in 1998 and 1999. Several treat- Gurnell’s determination that Hammond’s con-

ment notes from June 1998 indicated that centration was impaired, that she had left her

Hammond was responding well to her 50-mil- last job because of a crying spell, that she had

ligram dosage of Zoloft. Notes from July a GAF score of 40, or that her prognosis was

1998 indicated that Stone granted Hammond’s only fair unless her depression was adequately

request to increase her dosage to 100 milli- treated. As we have said, the ALJ also

grams per day. Over the course of the next omitted discussion of Boulos’s opinions,

several months, Hammond was tapered off opinions that Sharihan affirmed.

Zoloft and began taking ten milligram doses of

Paxil. In February 1999, the treatment notes Our status as an appellate court precludes

described Hammond as doing “fairly well.” us from reviewing the record de novo, and

Her dosage was eventually increased to 20 there is some evidence that points to a

milligrams, but her condition remained good. conclusion that differs from that adopted by

the ALJ. We nonetheless decline to reverse

Based on this evidence, the ALJ noted that the ALJ because there is far more than a

Scott-Gurnell had diagnosed Hammond with scintilla of evidence in the record that could

major depressive disorder but that she re- justify his finding that Hammond’s

mained capable of performing daily functions impairments were not severe disabilities within

when her colitis was not active. Based on the meaning of the Act.15

Khushalani’s testimony, the ALJ ruled that

Hammond’s impairments did not qualify as V.

severe, in spite of a specific finding that she Hammond contends that the Appeals Coun-

indeed suffered from major depressive cil erred by failing to consider sixty pages of

disorder.14 In a psychiatric review technique new medical records pertaining to treatment

form appended to his decision, the ALJ that occurred after the administrative hearing.

determined that Hammond had no restrictions The introduction of new evidence justifies

on daily living, no difficulties in maintaining remand only where it is material and there is

social functioning, never had deficiencies of good cause for the petitioner’s failure to

concentration, persistence, or pace, and never incorporate such evidence into the record of a

had an episode of deterioration or prior proceeding. 42 U.S.C. § 405(g). We

consider new evidence to be material if there is

additional evidence of record, that even where other

treating sources referenced Hammond’s medication

15

they did not classify her impairment as severe, and Hammond devotes little discussion to her co-

that Hammond had worked in spite of her condition litis claim in her original and reply briefs. The rec-

for six years. ord on this question, apparently consisting in part

of a report filled out by Dr. Moise D. Levy, indi-

14

The word “major” in “major depressive dis- cates that Hammond’s allegations of colitis were

order” is a medical term and does not, in and of “credible but not severe.” Given the absence of

itself, require us to consider the disorder “severe” argumentation on this issue, we will not overturn

within the meaning of the law. the ALJ’s finding on substantial evidence review.

6

a reasonable probability that, if it had been

presented to the Commissioner, it would have

changed the outcome. See Latham v. Shalala,

36 F.3d 482, 483 (5th Cir. 1994). The

evidence must “relate to the time period for

which the benefits were denied, and . . . not

concern evidence of a later-acquired disability

or . . . the subsequent deterioration of the

previously non-disabling condition.” Johnson

v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985).

Hammond seeks to submit medical records

that relate almost exclusively to her post-hear-

ing health and treatment16 and that do not

speak to the severity of her depression within

the meaning of the Act.17 It is not probable

that the ALJ would have decided the matter

differently if presented with the additional rec-

ords. Accordingly, the Appeals Council did

not err in refusing to consider them.

AFFIRMED.

16

The district court’s review of the record

shows that 33 of the 42 pieces of evidence Ham-

mond seeks to submit post-dated the ALJ’s deci-

sion, issued on August 26, 1999.

17

All of the resubmitted evidence is cumulative,

and none of it speaks to the severity of the im-

pairment within the meaning of the Act. We

cannot say there is a reasonable probability that it

would have changed the Commissioner’s decision.

7