United States Court of Appeals

Fifth Circuit

FILED

In the April 16, 2007

United States Court of Appeals Charles R. Fulbruge III

for the Fifth Circuit Clerk

m 06-31126

Summary Calendar

SHIRLENE REYNAUD,

Plaintiff-Appellant,

VERSUS

MICHAEL J. ASTRUE,

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Louisiana

m 1:05-CV-194

Before SMITH, WIENER, and OWEN, Shirlene Reynaud challenges a judgment af-

Circuit Judges. firming a decision of the Commissioner of So-

cial Security (the "Commissioner") denying

PER CURIAM:* her claim for social security disability benefits. Because the Commissioner's decision is sup- ported by substantial evidence and comports with the relevant legal standards, we affirm. * Pursuant to 5TH CIR. R. 47.5, the court has de- termined that this opinion should not be published I. and is not precedent except under the limited cir- We review a denial of social security bene- cumstances set forth in 5TH CIR. R. 47.5.4. fits "only to ascertain whether (1) the final de- cision is supported by substantial evidence and ficient medical evidence, the ALJ may make a (2) whether the Commissioner used the proper decision based on the evidence available. legal standards to evaluate the evidence." Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 1991). Though the decision to order a CE is 2000). Substantial evidence is more than a in the discretion of the ALJ, Anderson v. Sulliscintilla, but less than a preponderance, Spell- van, 887 F.2d 630, 634 (5th Cir. 1989), such man v. Shalala, 1 F.3d 357, 360 (5th Cir. an examination must be ordered when a CE "is 1993), and a decision is supported by substan- necessary to enable the administrative law tial evidence if we find evidence sufficient to judge to make the disability decision," Pierre establish that a reasonable mind could reach v. Sullivan, 884 F.2d 799, 802 (5th Cir. 1989) the Commissioner's conclusion, Ripley v. Cha- (quoting Turner v. Califano, 563 F.2d 669, ter, 67 F.3d 552, 555 (5th Cir. 1995). 671 (5th Cir. 1977)).

We do not substitute our judgment for the It is not disputed that Reynaud did not Commissioner's, even if the evidence weighs claim that she was mentally retarded or deagainst his decision. Newton, 209 F.3d at 452. pressed. Instead, her claim stems from a medIf we find conflicts in the evidence, we accept ical report by her personal physician, Dr. Maythe Commissioner's resolution of the conflicts eaux, that included a statement that Reynaud so long as that resolution is supported by sub- was "somewhat mentally compromised." A stantial evidence. Id. state agency worker called t he doctor to in quire about the statement, and the worker's II. notes from the call indicate that the doctor Reynaud alleges that the administrative law stated that Reynaud "has a long standing dejudge ("ALJ") did not fully develop the record pression which has been treated in the past and consider all relevant evidence before find- with prozax and celexa" and that he "thinks ing that she did not qualify for disabilit y pay- that [Reynaud] has a very low IQ." ments. Specifically, Reynaud claims the ALJ should have ordered a consult a t ive examina- The above entry in Reynaud's file is foltion ("CE") to determine whether she suffered lowed by the recommendation of an agency from mental retardation or depression. worker that a CE be ordered to ascertain whether Reynaud suffered from mental retar An ALJ must fully and fairly develop the dation or depression. That entry is followed facts relative to a claim for disability benefits. by another, presumably from a different agenRipley, 67 F.3d at 557. Reversal is appropri- cy worker, stating that ate, however, only if the applicant shows that she was prejudiced. Id. Prejudice can be es- Dr. Mayeaux's statements are not supporttablished by showing that had the ALJ ade- ed by the file evidence. There is no eviquately performed his du t y, he "could and dence that the claimant is under any current would have adduced evidence that might have treatment for depression. There was no evaltered the result." Kane v. Heckler, 731 F.2d idence of depression at the internist CE.

1216, 1220 (5th Cir. 1984). She gives no limitations from depression on her ADL's. As far as her IQ, she graduated Reynaud bears the burden o f proving her from high school and was not in special ed. disability, and if she is unable to provide suf- She raises her 13 yr. old son, shops unas sisted, reads newspapers and magazines, Further, the administrative record includes the and performs all household chores indepen- opinion of a state agency psychologist that dently. There is no MDI for depression or Reynaud did not suffer from a mental impair mental retardation and no CE is needed. ment.

The record also includes a Psychiatric Review "When there is no contention [by the claimTechnique form co mpleted by a state agency ant] that a claimant is mentally retarded, a few psychologist, Dr. Spurrier, noting that Rey- instances in the record noting diminished innaud does not suffer from any "medically de- telligence do not require that the ALJ order an terminable impairment." I.Q. test in order to discharge his duty to fully and fairly develop the record." Pierre, 884 The district court found that the ALJ had F.2d at 803. The ALJ was within in his discrefairly and fully developed the record, because tion in relying on the medical evidence preReynaud did not submit any evidence of her al- sented. leged mental disability, and the record did not contain evidence that required the ALJ to or- III. der a CE. We agree. Reynaud did not provide Reynaud argues that the testimony by the any evidence of a mental impairmentSSshe re- vocational expert ("VE") does not constitute lies instead on an analysts's notes from a substantial evidence. She contends that the hyphone call with Mayeaux, and the analyst's pothetical question to the vocational expert recommendation, based on that phone call, was flawed because the question omitted conthat a CE be administ ered. As found by the sideration of the impairments recognized by district court, however, there are no medical the ALJ: diabetes mellitus, hypertension, obesrecords to support Mayeaux's statement.1 ity, and degenerative joint disease. This argu ment appears to be based on the fact that the specific impairments were not mentioned by name in the hypothetical question. But, the 1 Reynaud correctly notes that we accord con ALJ considered Reynaud's testimony as well siderable weight to opinions of the claimant's per as the impairments evident in her medical recsonal physician. Myers v. Apfel, 238 F.3d 617, ords to ascertain her residual functional capac621 (5th Cir. 2001). It is also true, however, that ity, which was included in the hypothetical question.2 Further, Reynaud's representative when good cause is shown, less weight, little weight, or even no weight may be given to the physician's testimony. The good cause excep tions we have recognized include disregarding 1 (...continued) statements that are brief and conclusory, not evidence a nd may choose whichever physician's supported by medically acceptable clinical lab- diagnosis is most supported by the record.") (citing oratory diagnostic techniques, or otherwise un- Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. supported by the evidence.)). Mayeaux's statements are both conclu sional and unsupported by the evidence.

Id. (citing Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.1994)). See also Muse v. Sullivan, 925 The disputed hypothetical question was, in F.2d 785, 790 (5th Cir. 1991) ("The ALJ as fact- full, as follows: finder has the sole responsibility for weighing the (continued...) (continued...) thoroughly cross-examined the VE and had ample opportunity to pose an alternative hypot hetical question. Because the hypothetical question reaso nably incorporated the impairments and limitations recognized by the ALJ, and because Reynaud had the opportunity to add consideration of other asserted limitations, there is no error. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).

Because the Commissioner's decision denying Reynaud benefits is supported by substantial evidence and comports with the relevant legal standards, we AFFIRM the district court's decision upholding the decision of the Commissioner.

2 (...continued) For each question, please assume that I'm ask ing about someone who has, who is the same age and has the same education, the same vo cational background as Ms. Reynaud. For the first hypothetical, if I were to find that she has the residual functional capacity to perform sim ple, unskilled light work with no detailed in structions, that does not require climbing of lad ders, ropes or scaffold, requires only occasional balancing, stooping, kneeling, crouching, and crawling with mild limitations in concentration and attention, would there be any jobs that she could perform in the national or regional econ omy?