IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 17-10406

Summary Calendar

TIM C. BARLOW, 

 Plaintiff - Appellant

v.

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL 

SECURITY, 

 Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 2:15-CV-180

Before KING, ELROD, and HIGGINSON, Circuit Judges.

PER CURIAM:*

An administrative law judge (“ALJ”) conducted a hearing and found that 

plaintiff Timothy Barlow was not “disabled” within the meaning of certain provisions of the Social Security Act. See 42 U.S.C. §§ 416(i), 423(d) (insurance 

 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

November 7, 2017

Lyle W. Cayce

Clerk

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benefits); § 1382c(a)(3)(A) (supplemental security income). Barlow sought review in district court, see § 405(g), and the district court affirmed the ALJ’s 

finding. Seeing no reversible error, we affirm as well. 

Our review “is limited to whether the decision is supported by substantial evidence in the record and whether the proper legal standards were used 

in evaluating the evidence.” Graves v. Colvin, 837 F.3d 589, 591–92 (5th Cir. 

2016) (quoting Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994)). We will, 

however, reverse an ALJ’s decision if the claimant shows (1) that the ALJ failed 

in his duty to “fully and fairly” develop the record and (2) the claimant was 

prejudiced thereby. Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000); accord 

Graves, 837 F.3d at 591–92 (quoting Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 

1996)); id. at 592–93 (collecting other cases).

Barlow has not shown that the ALJ denied him the opportunity to crossexamine the vocational expert. Unlike the claimants in Tanner v. Secretary of 

Health & Human Services, 932 F.2d 1110, 1112 (5th Cir. 1991), and Lidy v. 

Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990), Barlow’s attorney cross-examined the witness at length, addressing all the subject-matter of the ALJ’s questions (and then some). The ALJ merely curtailed a particular line of questioning he deemed cumulative or immaterial. That is not reversible error. Bayer v. 

Colvin, 557 F. App’x 280, 286 (5th Cir. 2014); Vaughan v. Shalala, 58 F.3d 129, 

132 (5th Cir. 1995); see also Davis v. Colvin, 600 F. App’x 249, 250 (5th Cir.

2015) (ALJ did not “commit[] reversible error by ‘cutting off’ . . . cross-examination of vocational experts”). Nor has Barlow shown that he suffered any prejudice. See, e.g., Hollis v. Mathews, 520 F.2d 338, 340 (5th Cir. 1975) (requiring 

showing of prejudice). The truncated line of questioning dealt only with step 

five of the applicable five-part test, but the ALJ based his finding on step four—

an independent ground. See Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 

1995) (five-part test); id. at 565 n.13 (adverse finding at step four renders step 

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five immaterial). The ALJ also permitted Barlow to supplement his cross-examination with additional briefing, but Barlow declined the opportunity. In 

fact, at every stage of this proceeding, Barlow has failed to describe the type of 

evidence he was prevented from eliciting, let alone show that the evidence 

would have led to a different result. This alleged cross-examination defect affords no basis for reversal.

Barlow likewise fails to show that the ALJ disregarded his April 2014 

diagnosis of depression and borderline personality disorder by two treating 

physicians. Although a treating physician’s opinion is entitled to “controlling 

weight” unless the ALJ makes specific contrary findings, see 20 C.F.R. 

§ 404.1527(c)(2) (20141); Newton v. Apfel, 209 F.3d 448, 455–56 (5th Cir. 2000), 

that rule is not implicated absent “a conflict in the medical evidence,” Carry v. 

Heckler, 750 F.2d 479, 484 (5th Cir. 1985). The ALJ found no conflict here: he 

explicitly considered the April 2014 diagnoses and found them “consistent 

with” the other medical evidence regarding Barlow’s ability to work. That other 

evidence—including the opinions of six medical consultants—tended to show 

that, notwithstanding Barlow’s mental health disorders, he retained the capacity to perform jobs involving “simple, repetitive tasks” and no significant

interpersonal interactions. Because Barlow cites no aspects of the April 2014 

diagnoses that cast doubt on his capacity to perform this kind of work, he has 

not shown that the ALJ’s finding that no conflict existed was unsupported by 

the evidence. Cf. Dise v. Colvin, 630 F. App’x 322, 326 (5th Cir. 2015) (depression diagnosis not in conflict with finding of claimant’s capacity to work because “[a] depression diagnosis is not, itself, a functional limitation”).

 

1 The regulation was amended after the ALJ’s 2014 decision. See Revisions of Rules 

Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5869–71 (Jan. 18, 2017) 

(amending 20 C.F.R. § 404.1527) (effective Mar. 27, 2017). The changes do not matter here.

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Finally, there is no merit to Barlow’s conclusory assertion that the ALJ 

improperly relied on the opinions of the non-examining physicians. “[A]n ALJ 

may properly rely on a non-examining physician’s assessment when, as in this 

case, those findings are based upon a careful evaluation of the medical evidence 

and do not contradict those of the examining physician.” Villa v. Sullivan, 895 

F.2d 1019, 1024 (5th Cir. 1990). Because Barlow again fails to identify any 

inconsistencies between the non-examining physicians’ opinions and any other

medical evidence, he fails to show that the ALJ’s reliance was unsupported by 

the record. 

The district court’s judgment is AFFIRMED.

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