*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 circumstancesset forth in 5TH CIR.R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

March 2, 2007

Charles R. Fulbruge III

Clerk

In The United States Court Of Appeals

For The Fifth Circuit

No. 06-30352

STACY VALLIAN, on behalf of K.V.,

Plaintiff - Appellant,

v.

LINDA S. MCMAHON, COMMISSIONER OF SOCIAL SECURITY,

Defendant - Appellee.

Appeal from United States District Court

for the Western District of Louisiana

No. 6:04-CV-01463

Before KING, WIENER, and OWEN, Circuit Judges.

PER CURIAM:*

An ALJ awarded the plaintiff supplemental social security income on behalf of her

minor son, K.V. More than two years later, the Commission terminated benefits after

concluding that the plaintiff’s favorable decision was made in error. The plaintiff

unsuccessfully sought review before an ALJ and sought further review in district court. We

now affirm.

Stacy Vallian filed for supplemental social security income benefits on behalf of her

child in November 1992, alleging disability due to a heart defect. Her initial application was
1

20 C.F.R. Pt. 404, Subpt. P, App. 1 § 110.07(A) (2003).

2

20 C.F.R § 416.994a(e)(2) (2000).

3Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

2

denied, but the Appeals Council remanded the case to an ALJfor further development of the

record. After a supplemental hearing, ALJ Emery Curlee awarded benefits in March 1998,

determining that K.V. was disabled under § 110.07(A) of the listed impairments.1 The

Commission later informed Stacy Vallian that it had evidence showing that ALJ Curlee’s

decision awarding benefits was made in error. Pursuant to 20 C.F.R § 416.994a(e)(2), which

allows the agency to discontinue benefits if “[s]ubstantial evidence demonstrates that any

prior disability decision was made in error,”2the agency terminated benefits in November

2000. Vallian sought reconsideration and ultimately obtained a hearing before ALJ Lyndell

Pickett in July 2003. ALJ Pickett reviewed the evidence in the record and determined that

K.V.’s impairments did not meet a listed impairment and that the prior decision was

therefore made in error. In his decision, ALJ Pickett cited an opinion from a medical

consultant who had also reviewed the medical evidence pertaining to K.V.’s impairments.

After the Appeals Council denied review, ALJ Pickett’s decision became the final

administrative decision of the Commissioner. The district court affirmed the decision, and

Vallian now appeals.

Our review is limited to whether substantial evidence supports the Commissioner’s

decision and whether the Commissioner used the proper legal standards to evaluate the

evidence.3 The district court found that substantial evidence supports the Commissioner’s
4

See 20 C.F.R. 416.994a(e)(2).

5

See 20 C.F.R. § 416.1451(b) (1998) (addressing when a transcript of hearing testimony will

be prepared).

3

decision, and we agree. 

Vallian first argues that it was improper for ALJ Pickett to rely on the medical

consultant’s report that identified errors in the prior disability determination. Vallian

suggests that because the record does not identify the medical consultant or his area of

specialty, ALJ Pickett could not rely on the consultant’s explanation. This argument is

misplaced, because ALJ Pickett’s determination that the prior decision was made in error

does not depend on the medical consultant’s report. Rather, ALJ Pickett conducted an

independentreview ofthe record and determined that there wassubstantial evidence showing

error in the prior decision.4 Specifically, ALJ Curlee did not identify the objective criteria

for a finding of disability under § 110.07(A). The medical consultant’s report was largely

irrelevant to this determination.

Vallian’ssecond argument isthat ALJ Pickett was precluded fromfinding error in the

previous determination because the record is incomplete. She notes that ALJ Curlee based

her determination, in part, on testimony from Dr. Smith, a non-examining medical adviser.

In accordance with regulations, a transcript of Dr. Smith’s testimony and observations was

never prepared,5nor was it included in the record before ALJ Pickett. Vallian argues that

the absence of Dr. Smith’s complete testimony is fatal to ALJ Pickett’s decision.

We reject Vallian’s second argument. 20 C.F.R. § 416.994a(e)(2) allows the agency
6

20 C.F.R. 416.994a(e)(2).

4

to base its finding of error on “evidence on the record at the time any prior determination or

decision of the entitlement to benefits based on disability was made, or newly obtained

evidence which relates to that determination or decision.”6 Because a review of newly

obtained evidence alone can support a finding of error in a prior disability determination, we

cannot say that an ALJ is required to review all the evidence on record at the time of the

prior determination. In this case, ALJ Pickett based his decision on a full review of the

record before him, which includes newly obtained evidence in addition to evidence relied

on by ALJ Curlee in the previous proceeding. ALJ Pickett’s decision is supported by

substantial evidence contained in the record, and ALJ Pickett was not required to review Dr.

Smith’s hearing testimony before reaching his conclusion.

We AFFIRM.