Harris v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
November 6, 2006
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 06-30498
Summary Calendar
_______________
BETTY A. HARRIS,
Plantiff-Appellant,
VERSUS
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
m 2:05-CV-3248
______________________________
Before SMITH, WIENER, and OWEN,
Circuit Judges.
PER CURIAM:*
Betty Harris challenges a judgment affirm-
ing a decision of the Commissioner of Social
Security (the “Commissioner”) denying her
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
(continued...)
*(...continued)
lished and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.

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2
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.
I.
Because Harris is a pro se litigant, we lib-
erally construe her briefs and apply less strin-
gent standards in interpreting her arguments
than we would in the case of a counseled par-
ty. Grant v. Cuellar, 59 F.3d 523, 524 (5th
Cir. 1995). We read Harris’s briefs as attack-
ing the sufficiency of the record developed by
the administrative law judge (“ALJ”) and the
ALJ’s reliance on the testimony of the voca-
tional expert (“VE”) to determine that Harris
was not disabled under the Social Security
Act.1
We review a denial of social security bene-
fits “only to ascertain whether (1) the final de-
cision is supported by substantial evidence and
(2) whether the Commissioner used the proper
legal standards.” Newton v. Apfel, 209 F.3d
448, 452 (5th Cir. 2000). Substantial evidence
is more than a scintilla, but less than a prepon-
derance, Spellman v. Shalala, 1 F.3d 357, 360
(5th Cir. 1993), and a decision is supported by
substantial evidence if we find evidence suffi-
cient to establish that a reasonable mind could
reach the Commissioner’s conclusion, Ripley
v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
We do not substitute our judgment for the
Commissioner’s, even if the evidence weighs
against her decision. Newton, 209 F.3d at 452.
If we find conflicts in the evidence, we accept
the Commissioner’s resolution of the conflicts
so long as that resolution is supported by sub-
stantial evidence. Id.
II.
Harris alleges that the ALJ did not fully de-
velop the record and consider all relevant evi-
dence before finding that Harris did not qualify
for disability payments. An ALJ has a duty
fully and fairly to develop the facts relative to
a claim for disability benefits. Ripley, 67 F.3d
at 557. Reversal is appropriate, however, only
if the applicant shows that he was prejudiced.
Id. Prejudice can be established by showing
that had the ALJ adequately performed his
duty, he “could and would have adduced evi-
dence that might have altered the result.”
Kane v. Heckler, 731 F.2d 1216, 1220 (5th
Cir. 1984). Harris bears the burden of proving
her disability, Wren v. Sullivan, 925 F.2d 123,
128 (5th Cir. 1991), and if she is unable to
provide sufficient medical evidence, the ALJ
may make a decision based on the evidence
available. Id.
The district court properly found that the
ALJ had fairly and fully developed the record.
The administrative record contains medical
records from River Parishes Mental Health
Clinic dated November 2001 through August
2003 and April 2004 through May 2004, and
from St. Charles Parish Hospital dated January
2004 through February 2004.2 The ALJ also
reviewed the opinion of the Social Security
Administration’s medical consultant and a con-
sultative examination report by a psychiatrist.
1 Harris also raises a number of other claims,
including, inter alia, that she is being discriminated
against on account of her disability, race, and reli-
gion, and that an employee of the Social Security
Administration purged medical records from her
files. These arguments are not adequately briefed
and, even considering the wide latitude we afford
pro se litigants, we require that arguments must be
briefed to be preserved. Price v. Digital Equip.
Corp., 846 F.2d 1026, 1028 (5th Cir. 1988).
Thus, we deem these claims abandoned.
2 Harris alleges a disability onset date of Sep-
tember 13, 2002.

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3
Outside of a general allegation that some rec-
ords were intentionally purgedSSa claim with
no evidentiary supportSSHarris does not iden-
tify specific relevant records that the ALJ
failed to consider. Neither does she assert
why, had such records been considered, the
resulting decision would have been different.
III.
Harris asserts that the ALJ improperly re-
lied on the testimony of the VE. The use of a
VE is discretionary. 20 C.F.R. § 404.1566(e).
If, however, the claimant suffers from non-
exertional impairments, the Commissioner
must rely on a VE to establish that suitable
jobs exist in the economy. Newton, 209 F.3d
at 458. Harris suffers from paranoid schizo-
phrenia, a severe nonexertional impairment,
and thus not only was the ALJ within his dis-
cretion to rely on the VE, but he was required
to do so.
Because the Commissioner’s decision deny-
ing Harris 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 Com-
missioner.

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