## IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 11-30975

JOYCE DARLENE JONES, Plaintiff-Appellant,

versus MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant-Appellee

Appeal from the United States District Court for the Middle District of Louisiana

Before REAVLEY, SMITH, and CLEMENT, Circuit Judges. JERRY E. SMITH, Circuit Judge: The Commissioner o f Social Security determined that Joyce Jones was ineligible for disability benefits, and the district court agreed. On appeal, Jones
argues that the administrative law judge (“ALJ”) improperly disre g a r d e d evidence from one of her treatin g physicians without re-contacting him to obtain further documentation. Because (1) the ALJ had no duty to re-contact that physician where the record contained sufficient evidence from other physicians and (2) any error was harmless e v e n i f t h e ALJ were required to re-contact the U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

## F I L E D August 20, 20 12 Lyle W . Cayce Clerk Case: 11-30975 Document: 00511961604 Page: 1 Date Filed: 08/20/2012

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doctor, we affirm.

I. Jones applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The ALJ determined that she was entitled to SSI but denied DIB; the Appeals Council agreed. Jones sought judicial review in the district court, which upheld the Commissioner’s decision. Jones was last insured for disability benefits on December 31, 2005, so to receive DIB, she must establish disability on or before that date. She filed her initial application in 2004, but that application was denied in April 2005. She requested a hearing, which was c o n d u c t e d in June 2007. The ALJ issued an adverse decision finding that Jones’s ailments were severe impairments but did not meet or equal the requirements of any listed impairment. After consideration of the medical evidence and the record as a whole, the ALJ found that beginning on April 16, 2007, Jones had the residual functional capacity (“RFC”) to lift and carry ten pounds occasionally, stand and walk two hours in a workday, sit six hours in a workday, with the ability to push and pull limited by the weight she was able to lift and carry. The ALJ found that Jones

wa s a b l e to perform detailed but not complex work activities and was able to perform tasks requiring no more than limited interactio n w i t h the public. He also found that gi ven Jones’s age, education, work experience, and RFC, there

were not a significant number of jobs in the national economy that she could perform. Therefore, the ALJ found that beginning April 16, 2007, Jones was disabled and entitled to SSI. The ALJ found, however, that before that date, Jones had the RFC to lift and carry ten pounds frequently and twenty pounds occasionally, to stand and walk six hours in a workday, and to sit six hours in a workday. Again, the ALJ found that Jones was able to perform detailed but not complex w o r k a c t i v ities

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and was able to perform tasks requiring no more than limited interaction with the public. Because the ALJ found that Jones was unable to perform her past relevant work, he enli s t e d the testimony of a vocational expert to determine whether there were other jobs that Jones could perform. Based on the evidence in the record and the testimo n y o f t he vocational expert, the ALJ found that Jones could perform other jobs existing in significant numbers in the national
economy, so she was not disabled within the meaning of the Social Security Act at any time before April 16, 2007. Because she was not disabled on the date she was last insured for disability benefits, she was not entitled to DIB.

II. In reviewing the Commissioner’s eligibility determination, a federal court considers only whether the Commissioner applied the proper legal standards

a n d w h e t h e r s ub stantial evidence in the record supports his decision. Gree n s p a n

v. Shalala , 38 F.3d 232, 236 (5th Cir. 1994). A court will reverse the ALJ’s decision as not supported by substantial evidence if the claimant shows that (1) the ALJ failed to fulfill his duty to develop the record adequately and (2) that failure prejudiced the plaintiff. Brock v. Chater , 84 F.3d 726, 728 (5th Cir. 1996 ). Jones contends that the ALJ did not satisfy that duty, b e c a u s e he failed to order more medical records from Dr. Henry Young, one of Jones’s physicians. Jones supplie d a two-page checklist from Young indicating his opinion that Jones s u f

f e r e d from a variety of ailments, partially contradicting some of the ALJ’s conclusions. The ALJ gave no weight to Young’s checklist, because it was 1

Yo ung chec ke d boxes indi cat ing that Jones wa s unable to car ry ten poun ds fr equent ly 1 or twent y pounds occas ionall y, st and orwalk six hours a day, or si t six hours a day. He als o chec ke d “no” on the line ask ing wh ethe r any of his ans we rs on the she et wo uld have been dif

fer ent at any tim e dur ing the tim e he tre ated Jones , wh ich Jones cont ends exten ds to the tim e she wa s cover ed by dis abilit y ins uranc e. We ass ume for pur pos es of argum ent that Yo ung wa s a t reat ing p hysic ian and did inf act t reat Jo nes be for e h er dis abilit y ins uranc e e xpir ed.



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conclusional an d w a s s upported by no objective evidence. Jones argues that 2 

### 20 C.F.R. § 404.1512(e)(1) (eff. Aug. 1, 2006, to June 12, 2011) required the ALJ to contact Young to ensure that he did not h a v e a ny more records that might lend support to his conclusions. Because the record contained ample objective and opini o n evidence supporting the ALJ’s conclusions, however, he was not required to develop the record further by contacting Young. Cornett v. Astrue , 261 F. App’x 644, 648-49 (5th Cir. 200 8) (per curiam). The regulation Jones cites does not require the ALJ to order more evidence where the record is sufficient to establish whether the claimant is disabled. The Commissioner is required to recontact a medical source “[w]hen the evidence

. . . from [ t h e] treating physician or psychologist or other medical source is inadequate for [the Commissioner] to determine whether [the claimant is] disabled.” 20 C.F.R. § 404.1512(e) (eff. Aug. 1, 2006, to June 12, 2011). Evidence from other treating sources can suffice to allow the ALJ to determine whether the claimant is disabled. The ALJ is required to requ e s t m ore documentation only where

3 

### there is no relevant evidence from other treating sources. That is not the case. The ALJ had hundreds of pages o f r e c o r ds from Jones’s previous application and ninety-three pages of supplementary records from seven different physicians that Jones had submitted by the ti m e of her hearing. The records included obje c t i ve evidence on which the ALJ’s report relies most heavily: an MRI from 2005 and x-rays from 2006 provided by Jones’s

The ALJ’s rep ort st ates , “The clai man t’s rep res enta tive has als o sub mi tte d a me dic al 2

s o u rce st atem ent, dat ed June 11, 2007, fr om He nry T. Yo ung, M. D. There are no p r o g r e s s note s, how ever, and no othe r evide nce to indi cat e wh ethe r Dr

. Yo ung is a tre ating so urc e. No
we ight has be en given t he opi nion of Dr

. You ng.”
See Corne tt , 261 F. App ’x at 649 (“ [T] he ALJ’s need to cont act a me dic al so urc e aris es 3 only wh en the availabl e evide nce is inad equat e to det erm ine if ther e is a dis abilit y.” ); Ho lifi el d
v. As true, 402 F. App ’x 24, 27 (5t h Cir. 2010) (“ Becaus e the rec ord in this cas e cont ains me dic al opi nion evide nce fr om tre ating phys icia ns
. . . the ALJ had no d u ty to rec onta ct [t he doc tor that s ubm itt ed the unsu bst antia ted r epo rt] .” ).


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treating physicians. The ALJ also relied on the fact that Jones’s physicians had prescribed her pain medication meant to t r e a t only mild to moderate pain, Jones’s acknowledgment a t her hearing that she had the ability to do laundry and some hou s e w o r k , and a treating physician’s opinion from 2005 that Jones had good range of motion in her hands, wrists, elbows, shoulders, hip, and knee. Jones cites Newton v. Apfel , 209 F.3d 448 ( 5th Cir. 2000), to support her

c o ntention that the ALJ must attempt to order more records before fin d i n g a treating physician’s opinion to be unsupported. As the magistrate judge’s report notes, however, the holding in that case is more qualified: [I]f the ALJ determines that the treating physician’s record s a re inconclusive or otherwise inadequate to receive controlling weight, absent other medical opin i o n e vidence based on personal examination or treatment of the claimant , the ALJ must seek clarification or additional evidence from the treating physician in accordance with 20 C.F.R. § 404.1512(e). Id. at 453 (emphasis added). Here, the record contained other medical opinion evidence from treating physicians, as noted above. Therefore, the ALJ was not 4 

### required to request more documents from Young. 5

Jones als o cit es Hy de v. As true , No. 07-3 0748, 2008 U. S. App

. LEXIS 10228 (5t h Cir. 4 May 12, 2008) (unp ublis hed) , to supp ort her broade r cons tru cti on of 20 C.F. R. § 404. 1512( e). The language in that cas e doe s bols ter her cons tru cti on: “The dut y to [r eco ntac t the tre ating phys icia n] is not cont ingent on the adequ acy of the recor d, but on the adequac y of the repo rt rec eived fr om the tre ating phys icia n.” Id. at *7. Never thel es s, the res ult in Hy de is cons ist ent wi th our narr ow er inte rp ret atio n of the regula tio n, beca use the ALJ in that cas e rejec ted the view s of the only phys icia n to tre at the clai man t dur ing the rele vant tim e per iod

. Id. at *9- 10.
The ALJ sat isf

ied his dut y to deve lop a com ple te rec ord of Jones ’s m e d i c a l h i st ory 5 unde r the fir st claus e of 20 C.F. R. § 404. 1512( d)

. In add itio n, beca use Jones wa s rep res ente d by couns el and had an opp ort unity to tes tif y at the hearing regar ding her dis abilit y, the ALJ
wa s unde r no add itio nal obligat i o n t o m ak e a “re aso nable eff ort ” to obta in Yo ung’s rec ord s, pur sua nt to the se cond claus e of § 404. 1512( d)

. See Vi ne v. As true , No. 3:10 -895 -BK , 2010 WL 4791487 , at *6 (N .D

. Tex. Nov. 18, 2010) (ho ldi ng that the ALJ’s “d uty to full y deve lop the rec ord is hei ghtene d w hen the cl aim ant is pr o se . . . [but ] [a] n ALJ may satis fy this height ened dut y by ask ing the claima nt about his me dic al cond itio n, the eff ect ivenes s of tre atm ent, how the clai man t’s dail y rout ine has been aff ect ed by his me dic al pr oblem s, his abilit y to per for m variou s tas ks , and by invi ting the clai man t to inclu de anythin g el se in t he rec ord .” ). 

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### No. 11-30975 III. Even if we did find that the ALJ was required to request further documentation, we would affirm, because Jones has not met her burden of showing that
any error was prejudicial. She has offered no evidence that additional records 6 

### from Young would have had an effect on the judgment or that they even exist. The party seeking to overturn the Commissioner’s decision has the burden to show that prejudice resulted from an error. A mere allegation that additional 7 

### beneficial evidence might have been gathered had the error not occurre d is insufficient to m e e t this burden. But Jones asserts only that “the records and the 8 

### findings of Young might tip the balance in plaintiff’s favor,” so she has not met her burden to show that any error was harmful. 9 

### The judgment is AFFIRMED.

See Audl er v. As true , 501 F.3d 446, 448 (5t h Cir. 2007) (no ting that “‘p roc edur al per 6 fec ti o n i n a d mi nis tra tive pr oce edi ngs is not requ ired ’ as long as ‘th e sub st antive right s of a par ty have not been aff ect ed’ ”) ( cit atio n o mit ted ).
Care y v. Apfe l, 230 F.3d 131, 142 (5t h Cir. 2000) ; see al so Shins eki v. Sande rs , 556 7 U. S. 396, 409 (200 9) (“ [T] he burd en of sho wi ng t hat an e rro r is harm ful norm ally fal ls upon the par ty att ack ing t he agency’ s det erm inati on. ”)

. Care y, 230 F.3d at 142 (“ This Court wi ll not rever se the dec isi on of an ALJ for fai lure 8 to full y and fai rly deve lop the rec ord unles s the clai man t sho ws that he or she wa s pr ejudi ced by the ALJ’s fai lure

. . . . To es tabl ish pr ejudi ce, a clai man t mus t dem ons tra te that he or she coul d and wo uld have add uced evide nce that mi ght have alte red the resul t. ” (int erna l quot atio ns andcitat ions omit ted )) ; see als o Casti ll o v. Barnha rt , 325 F.3d 550, 552 (5t h Cir . 2003) (“ [The clai man t] poi nts to no evide nce that wo uld have been add uced and that coul d have changed the resul t had [s he] been rep res ente d by an att orne y, and theref ore has not demo nst rat ed that she wa s pr ejudi ced due to the abs ence of couns el at the hear ing.” (int erna l quot atio ns and cit atio n o mi tte d) ).
See Hy de , 2008 U. S. App

. LEXIS 10228, at *11 (“ Som ethi ng mo re then a sp ecul ative 9
ass ert ion that me dic al rec ord s mi ght exis t and mi ght clar ify earl ier rec ord s is nece ss ary, suc h
as per haps a st atem ent fr om the doc tor that suc h rec ord s exis t and do conf irm a n e a rlie r diagno sis .” ). 

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