Reynaud v. Astrue

United States Court of Appeals
Fifth Circuit
F I L E D
April 16, 2007
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
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,
Circuit Judges.
PER CURIAM:*
Shirlene Reynaud challenges a judgment af-
firming a decision of the Commissioner of So-
cial Security (the “Commissioner”) denying
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.
I.
We review a denial of social security bene-
fits “only to ascertain whether (1) the final de-
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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cision is supported by substantial evidence and
(2) whether the Commissioner used the proper
legal standards to evaluate the evidence.”
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.
2000). Substantial evidence is more than a
scintilla, but less than a preponderance, Spell-
man v. Shalala, 1 F.3d 357, 360 (5th Cir.
1993), and a decision is supported by substan-
tial evidence if we find evidence sufficient to
establish that a reasonable mind could reach
the Commissioner’s conclusion, Ripley v. Cha-
ter, 67 F.3d 552, 555 (5th Cir. 1995).
We do not substitute our judgment for the
Commissioner’s, even if the evidence weighs
against his 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.
Reynaud alleges that the administrative law
judge (“ALJ”) did not fully develop the record
and consider all relevant evidence before find-
ing that she did not qualify for disability pay-
ments. Specifically, Reynaud claims the ALJ
should have ordered a consultative examina-
tion (“CE”) to determine whether she suffered
from mental retardation or depression.
An ALJ must fully and fairly develop the
facts relative to a claim for disability benefits.
Ripley, 67 F.3d at 557. Reversal is appropri-
ate, however, only if the applicant shows that
she was prejudiced. Id. Prejudice can be es-
tablished by showing that had the ALJ ade-
quately performed his duty, he “could and
would have adduced evidence that might have
altered the result.” Kane v. Heckler, 731 F.2d
1216, 1220 (5th Cir. 1984).
Reynaud bears the burden of proving her
disability, and if she is unable to provide suf-
ficient medical evidence, the ALJ may make a
decision based on the evidence available.
Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir.
1991). Though the decision to order a CE is
in the discretion of the ALJ, Anderson v. Sulli-
van, 887 F.2d 630, 634 (5th Cir. 1989), such
an examination must be ordered when a CE “is
necessary to enable the administrative law
judge to make the disability decision,” Pierre
v. Sullivan, 884 F.2d 799, 802 (5th Cir. 1989)
(quoting Turner v. Califano, 563 F.2d 669,
671 (5th Cir. 1977)).
It is not disputed that Reynaud did not
claim that she was mentally retarded or de-
pressed. Instead, her claim stems from a med-
ical report by her personal physician, Dr. May-
eaux, that included a statement that Reynaud
was “somewhat mentally compromised.” A
state agency worker called the doctor to in-
quire about the statement, and the worker’s
notes from the call indicate that the doctor
stated that Reynaud “has a long standing de-
pression which has been treated in the past
with prozax and celexa” and that he “thinks
that [Reynaud] has a very low IQ.”
The above entry in Reynaud’s file is fol-
lowed by the recommendation of an agency
worker that a CE be ordered to ascertain
whether Reynaud suffered from mental retar-
dation or depression. That entry is followed
by another, presumably from a different agen-
cy worker, stating that
Dr. Mayeaux’s statements are not support-
ed by the file evidence. There is no evi-
dence that the claimant is under any current
treatment for depression. There was no ev-
idence of depression at the internist CE.
She gives no limitations from depression on
her ADL’s. As far as her IQ, she graduated
from high school and was not in special ed.
She raises her 13 yr. old son, shops unas-

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sisted, reads newspapers and magazines,
and performs all household chores indepen-
dently. There is no MDI for depression or
mental retardation and no CE is needed.
The record also includes a Psychiatric Review
Technique form completed by a state agency
psychologist, Dr. Spurrier, noting that Rey-
naud does not suffer from any “medically de-
terminable impairment.”
The district court found that the ALJ had
fairly and fully developed the record, because
Reynaud did not submit any evidence of her al-
leged mental disability, and the record did not
contain evidence that required the ALJ to or-
der a CE. We agree. Reynaud did not provide
any evidence of a mental impairmentSSshe re-
lies instead on an analysts’s notes from a
phone call with Mayeaux, and the analyst’s
recommendation, based on that phone call,
that a CE be administered. As found by the
district court, however, there are no medical
records to support Mayeaux’s statement.1
Further, the administrative record includes the
opinion of a state agency psychologist that
Reynaud did not suffer from a mental impair-
ment.
“When there is no contention [by the claim-
ant] that a claimant is mentally retarded, a few
instances in the record noting diminished in-
telligence do not require that the ALJ order an
I.Q. test in order to discharge his duty to fully
and fairly develop the record.” Pierre, 884
F.2d at 803. The ALJ was within in his discre-
tion in relying on the medical evidence pre-
sented.
III.
Reynaud argues that the testimony by the
vocational expert (“VE”) does not constitute
substantial evidence. She contends that the hy-
pothetical question to the vocational expert
was flawed because the question omitted con-
sideration of the impairments recognized by
the ALJ: diabetes mellitus, hypertension, obes-
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
ALJ considered Reynaud’s testimony as well
as the impairments evident in her medical rec-
ords to ascertain her residual functional capac-
ity, which was included in the hypothetical
question.2 Further, Reynaud’s representative
1 Reynaud correctly notes that we accord con-
siderable weight to opinions of the claimant’s per-
sonal physician. Myers v. Apfel, 238 F.3d 617,
621 (5th Cir. 2001). It is also true, however, that
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
statements that are brief and conclusory, not
supported by medically acceptable clinical lab-
oratory diagnostic techniques, or otherwise un-
supported by the evidence.
Id. (citing Greenspan v. Shalala, 38 F.3d 232, 237
(5th Cir.1994)). See also Muse v. Sullivan, 925
F.2d 785, 790 (5th Cir. 1991) (“The ALJ as fact-
finder has the sole responsibility for weighing the
(continued...)
1(...continued)
evidence and may choose whichever physician’s
diagnosis is most supported by the record.”) (citing
Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir.
1987)). Mayeaux’s statements are both conclu-
sional and unsupported by the evidence.
2 The disputed hypothetical question was, in
full, as follows:
(continued...)

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thoroughly cross-examined the VE and had
ample opportunity to pose an alternative hypo-
thetical question. Because the hypothetical
question reasonably incorporated the impair-
ments 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 deny-
ing Reynaud benefits is supported by substan-
tial 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?

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