IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-10523

Summary Calendar

PHYLLIS S. RUSSO, 

 Plaintiff - Appellant

v.

ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, 

 Defendant - Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 3:18-CV-478 

Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.

PER CURIAM:*

Phyllis Russo sought judicial review of an unfavorable decision by the 

Commissioner of Social Security Administration on her application for 

disability insurance benefits under the Social Security Act. The district court 

affirmed the Commissioner’s decision. Seeing no reversible error, we affirm the 

district court’s judgment.

* 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

February 19, 2020

Lyle W. Cayce

Clerk

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I.

Phyllis Russo applied for a period of disability and disability insurance 

benefits under Title II of the Social Security Act, 42 U.S.C. § 423, alleging that 

she is disabled. The relevant timeframe for Russo’s application is from March 

1, 2011, the alleged onset date, through December 31, 2012, the date when her

insured status expired. After the Commissioner of the Social Security 

Administration denied her application, Russo requested a hearing before an 

administrative law judge (“ALJ”). Russo appeared and testified at the hearing, 

as did an impartial vocational expert.

Reviewing her claim under the familiar five-step analysis,1 the ALJ 

concluded that Russo was not “disabled” within the meaning of the Act during 

the relevant timeframe. In particular, the ALJ determined that Russo did not 

have an impairment or combination of impairments that met or medically 

equaled the severity of any impairment listed in the social security regulations. 

In addition, although Russo was unable to return to her past job as a 

chiropractor, the ALJ determined that she was capable of performing other

jobs that exist in significant numbers in the national economy.

Russo appealed the ALJ’s decision to the Appeals Council, which denied 

her request for review. As a result, the ALJ’s decision became the final decision 

of the Commissioner. Russo then filed this action for judicial review pursuant 

to 42 U.S.C. § 405(g). The case was referred to a magistrate judge, who issued 

a thorough report and recommendation concluding that the decision was 

1 See, e.g., Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (“The ALJ uses a fivestep sequential analysis to evaluate claims of disability: (1) whether the claimant is currently 

engaged in substantial gainful activity (whether the claimant is working); (2) whether the 

claimant has a severe impairment; (3) whether the claimant’s impairment meets or equals 

the severity of an impairment listed in 20 C.F.R., Part 404, Subpart [P], Appendix 1; 

(4) whether the impairment prevents the claimant from doing past relevant work (whether 

the claimant can return to his old job); and (5) whether the impairment prevents the claimant 

from doing any other work.”); see also 20 C.F.R. § 404.1520(a)(4).

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supported by substantial evidence and that the Commissioner applied the 

proper legal standard. Russo did not object to the magistrate judge’s report and 

recommendation. The district court reviewed the magistrate judge’s report and 

recommendation for plain error, adopted the report and recommendation as its 

own order, and entered a judgment affirming the Commissioner’s decision.

This appeal followed.

II.

Judicial review of the Commissioner’s denial of disability insurance 

benefits “is limited to two inquiries: (1) whether the decision is supported by 

substantial evidence on the record as a whole, and (2) whether the 

Commissioner applied the proper legal standard.” Copeland v. Colvin, 771 F.3d 

920, 923 (5th Cir. 2014) (quoting Perez, 415 F.3d at 461). “A finding of no 

substantial evidence is appropriate only if no credible evidentiary choices or 

medical findings support the decision.” Salmond v. Berryhill, 892 F.3d 812, 819

(5th Cir. 2018) (quoting Whitehead v. Colvin, 820 F.3d 776, 779 (5th Cir. 2016)).

In applying the substantial-evidence standard, “[t]he court does not reweigh 

the evidence in the record, try the issues de novo, or substitute its judgment 

for the Commissioner’s, even if the evidence weighs against the 

Commissioner’s decision.” Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

Russo failed to object to the magistrate judge’s report and 

recommendation. “A party’s failure to object to a magistrate judge’s report and 

recommendation restricts the appeals court to a ‘plain error’ standard of 

review.” Longoria ex rel. M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d 

258, 270 (5th Cir. 2019); see also Douglass v. United Servs. Auto. Ass’n, 79 F.3d 

1415, 1428 (5th Cir. 1996) (en banc), superseded on other grounds by 28 U.S.C. 

§ 636(b)(1). The magistrate judge’s report and recommendation cited Douglass

and advised Russo of the consequences of her failure to object. Accordingly, we 

review the district court’s judgment for plain error.

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III.

Russo’s issue statement is vague, and her brief conflates distinct issues, 

making it difficult to understand her arguments. We understand Russo to 

challenge the ALJ’s decision on two grounds: (1) the ALJ failed to consider 

certain medical records and evaluations, and (2) the ALJ failed to consider the 

totality of her impairments in combination when determining whether her 

combination of impairments is medically equivalent to an impairment listed in 

the social security regulations. These arguments are without merit.

A.

Russo contends that the ALJ failed to consider several medical records 

and evaluations submitted in connection with her application. She bases this 

argument on the fact that these records were not specifically identified in the 

list of exhibits attached to the ALJ’s decision. But the list of exhibits attached 

to the ALJ’s decision identifies hundreds of pages of medical records, which 

include each of the records that Russo references. And an examination of the 

ALJ’s decision reveals that the ALJ did consider this evidence.

In fact, the ALJ specifically discussed these records and explained what 

weight she afforded them. She gave limited or no weight to the opinions in 

many of these records because they concerned treatment long after Russo’s

date last insured and there was no indication that the opinions related to 

Russo’s condition during the relevant time period. Because Russo bore the 

burden of proving that she was disabled before the expiration of her insured 

status, evidence describing her condition after her date last insured is not 

relevant. See Torres v. Shalala, 48 F.3d 887, 894 n.12 (5th Cir. 1995); see also

Fabian v. Berryhill, 734 F. App’x 239, 243 (5th Cir. 2018) (unpublished) 

(holding that the Commissioner did not err by failing to give controlling weight 

to opinions of physicians who had not treated the claimant during the relevant 

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period and did not refer to her condition during the relevant period); McLendon 

v. Barnhart, 184 F. App’x 430, 431 (5th Cir. 2006) (unpublished) (same).2

Only one of the purportedly disregarded records was from the relevant 

timeframe: a gastrointestinal pathology report from March 2012. The ALJ

cited this report and acknowledged that Russo underwent a colonoscopy in 

2012. But the results of the colonoscopy were unremarkable, and Russo points 

to no evidence that she was diagnosed with or treated for colitis, chronic 

constipation, or chronic fatigue. And as the ALJ pointed out, there is no 

evidence that any symptoms related to those conditions did or could last for 

the twelve-month durational requirement. See 20 C.F.R. § 416.909.

Even if the ALJ failed to consider certain records, Russo has not met her 

burden of showing that any error was prejudicial. “‘Procedural perfection in 

administrative proceedings is not required’ as long as ‘the substantial rights of 

a party have not been affected.’” Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 

2007) (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)). An ALJ’s 

failure to consider evidence is ground for reversal “only if the applicant can 

show prejudice.” Garcia v. Berryhill, 880 F.3d 700, 704 (5th Cir. 2018). To 

establish prejudice, the plaintiff must show that the omitted material “might 

have altered the result.” Id. (quoting Brock v. Chater, 84 F.3d 726, 728 (5th 

Cir. 1996)). Because Russo does not explain the import of the supposedly

omitted records or how they “would somehow swing the evidentiary pendulum 

in [her] favor,” id. at 705, Russo fails to show that she was prejudiced by the 

ALJ’s alleged failure to consider that evidence.

2 Similarly, the ALJ rejected the opinions of a treating physician’s assistant and a 

chiropractor because, besides there being no indication of treatment during the alleged period 

of disability, these opinions were not rendered by “acceptable medical sources” under the 

social security regulations and were inconsistent with other medical evidence from the 

relevant time period. See Young v. Berryhill, 689 F. App’x 819, 821–22 (5th Cir. 2017) 

(unpublished) (citing 20 C.F.R. § 416.913(a), (d) (2013)).

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B.

Russo also challenges the ALJ’s finding that she did not have any 

impairment or combination of impairments that meets or equals the severity 

of an impairment listed in the social security regulations. See 20 C.F.R. pt. 404, 

subpt. P, app. 1. In making this determination, “the ALJ must analyze both 

the ‘disabling effect of each of the claimant’s ailments’ and the ‘combined effect 

of all of these impairments.’” Loza v. Apfel, 219 F.3d 378, 399 (5th Cir. 2000)

(quoting Fraga v. Bowen, 810 F.2d 1296, 1305 (5th Cir. 1987)). Russo argues 

that the ALJ analyzed her alleged impairments individually and merely gave 

“lip service” to the requirement to consider their combined effects. We find this 

argument unpersuasive.

First, Russo has the burden of establishing that her combination of 

impairments meets or equals “all of the specified medical criteria” of a listed 

impairment. Whitehead, 820 F.3d at 781 (quoting Sullivan v. Zebley, 493 U.S. 

521, 530 (1990)); see also Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990).

Yet, Russo points to no evidence showing that she could meet or equal every 

requirement of a listing. See Heck v. Colvin, 674 F. App’x 411, 414–15 (5th Cir. 

2017) (unpublished) (holding claimant failed to meet her burden because she 

did not explain how her symptoms aligned with the criteria of a listing). In fact, 

Russo does not identify a single listing to which her combination of 

impairments is allegedly equivalent. Thus, she has not met her burden.

Second, the ALJ’s decision demonstrates that she properly considered 

Russo’s impairments in combination. The ALJ specifically stated that the 

severity of Russo’s impairments, “considered singly and in combination, does 

not meet or medically equal the criteria of any impairment listed in Appendix 

1.” Our review of the record reveals this is not simply a rote statement. See

Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985) (holding the ALJ did not 

fail to consider the cumulative effect of the claimant’s impairments where the 

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ALJ stated that the impairments, “taken singly or in combination,” do not meet 

or equal a listed impairment, and the record supported the ALJ’s conclusion).

After careful consideration of the evidence, the ALJ determined that 

Russo’s impairments did not meet or equal the criteria of listing 1.02 (major 

disfunction of a joint) or listing 12.06 (anxiety and obsessive-compulsive 

disorders) and explained how she reached those conclusions. This analysis 

satisfies the proper legal standard required under our jurisprudence. Cf.

Audler, 501 F.3d at 448 (holding the ALJ erred by summarily concluding that 

the claimant’s impairments did not meet or equal a listed impairment, without 

identifying the listed impairment for which the claimant’s symptoms failed to 

qualify or providing any explanation as to how she reached her conclusion); see

also Belk v. Colvin, 648 F. App’x 452, 454–55 (5th Cir. 2016) (unpublished). In 

addition, the ALJ specifically considered the “combined effects” of all of Russo’s 

medically determinable impairments in determining Russo’s residual 

functional capacity. See Giles v. Astrue, 433 F. App’x 241, 245 (5th Cir. 2011) 

(unpublished) (holding that the ALJ properly considered the “combined effects”

of a claimant’s impairments where the ALJ incorporated the combination of 

impairments into his residual functional capacity determination).

In light of the highly deferential standard of review and Russo’s failure 

to develop her argument or support it by citing to any relevant authority, we 

find that the ALJ fully comported with the requirement that she consider the 

combined effect of Russo’s impairments, and substantial evidence supports the 

ALJ’s conclusion that the combination of Russo’s impairments did not meet or 

equal an impairment listed in the regulations.

IV.

Our review of the parties’ briefs, applicable law, and relevant portions 

of the record discloses no reversible error. We AFFIRM the district court’s 

judgment.

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