### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 15

- 30339 Summary Calendar

MEGAN A. DISE,

Plaintiff

- Appellant

v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,

Defendant

- Appellee

Appeal from the United States District Court for the Western District of Louisiana U.S.D.C. 2:12

- cv
- 02341

- PM

Before STEWART, Chief Judge, and OWEN and COSTA , Ci rcuit Judges

. PER CURIAM: * Megan Dise appeal s the denial of her application for supplem ental security income benefits based on disability

. Because the Commissioner’s
decision w as based on substanti al evidence and the proper legal standard s , w e AFFIRM

.

* Pursuant to 5 TH C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR

. R. 47.5.4. United States Court of Appeals Fifth Circuit 

### FILED December 11, 2015 Lyle W. Cayce Clerk Case: 15-30339 Document: 00513304829 Page: 1 Date Filed: 12/11/2015No. 15

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2 I. BACKGROUND Dise began receiving supplemental security income benefits based on disability as a child. When she turned eighteen on June 1, 2009 , the Social Security Administration re
- determined her eligibility under the rule s for evaluating disability in adults and found that she was no lo nger disabled

. Dise then presented her claims before an administrative law judge (ALJ) at a hearing on March 24, 2011, and at a supplemental hea ring on August 3, 2011. Following these hearings, the ALJ found that Dise was not disabled under the Social Security Act because, “considering [her] age, education, work experience, and residual functional capacity, there are jobs that exist in significa nt numbers in the national economy that the claimant can perform.” Her subsequent request for appellate review was denied. Having exhausted her administrative remedies, Dise filed suit in federal
district court for review of the Commissioner’s decision. The district court affirmed the ALJ’s decision and dismissed Dise’s case with prejudice. She now appeals.
II. STANDARD OF REVIEW

“ Our review of So cial Security disability cases 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) ( citation and i nternal quotation marks omitted)

. Substantial evidence is more than a mere scint i lla, less than a preponderance, and is “ such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Perez v. Barnhart , 415 F.3d 457, 461 (5th Cir. 2005) (citation and internal quotation marks omitted)

. In applying this standard, we “may not reweigh the evidence or substitute [our ] judgment for the Commissioner’ s.” Id. (internal citation omitted). Case: 15-30339 Document: 00513304829 Page: 2 Date Filed: 12/11/2015No. 15

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3 III. DISCUSSION
The ALJ evaluates disability claims under the Social Security Act through a sequential five

- step process: (1) whe ther the claimant is currently working; (2) whether the claimed impairment can be classif ied as severe; (3)
whether the impairment meets or equals an impairment in 20 C.F.R. P art 404, Subp art P, Appendix 1 ; (4) whether the claimant can perform her past rel evant work; and (5) whether the claimant can perfor m other substantial gainful
activities

. See Selders v. Sullivan , 914 F.2d 614, 618 (5th Cir. 1990)

. The claimant bears the burden of proof on the first four step s, but on the fifth step , the burden shifts to the Commissioner. Perez , 415 F.3d at 461

. Dise makes the following arguments on appeal: (1) the ALJ erred at s tep
t wo by not acknowledging her diagnosis for depression ; (2) the ALJ ’s error at

s tep t wo created error at s tep t hree because the ALJ omitted her depression impairment from the analysis; (3) the ALJ erred in determining her residual functional capacity; (4) the ALJ erred at s tep f ive by asking the vocational expert a defective hypothetical question; and (5) the ALJ improperly applied
th e Medical

- Vocational Guidelines at s tep f ive

. We address each contention in
turn. A.
At s tep t wo in the an alysis, the ALJ found that Dise suffers from a severe mental impairment

— Oppositional Defiant Disorder (ODD)

. The ALJ then proceeded to s tep s three, four, and f ive

. Dise argues that the medical evidence supports the presence of an additional medically determinable impairment

— depression

— and the ALJ erred in failing to apply the non
- severity standard from Stone v. Heckler , 752 F.2d 1099 (5th Cir. 1985) , to that impairment. The C ommissioner argues that, bec ause the ALJ proceeded to s tep f ive of the analysis, any failure to find an additional impairment severe at s tep t wo does not justify remand. We agree. Case: 15-30339 Document: 00513304829 Page: 3 Date Filed: 12/11/2015No. 15

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4 This case does not present the error found in S tone because Dise’s request for benefits was not denied based on an imprope r determination of “non

- severity ” at step two. The ALJ specifically cited the Stone standard in finding that Dise’s ODD constitutes a severe impairment. The remainder of
the opinion clearly reflects that t he ALJ considered all of Dise’s claimed impairments (including depression ) in his assessment of Dise’ s disability , even though he only mentioned ODD at s tep t wo. In short, “this case did not turn on whether or not [Dise’s de pression] impairment was severe, ” but on subsequent step s in the analysis

— “ an inquiry unaffected by the test set forth
in Stone. ” See Chaparro v. Bowen , 815 F.2d 1008, 1011 (5th Cir. 1987) . Thus, Dise’s Stone argument “is irrelevant to the disposition of [her] case.” Id. ; see also Shipley v. Sec’ y of Health & Human Servs. , 812 F.2d 934, 935 (5th Cir. 1987)

. B.
At s tep t hree in the a nalysis , the ALJ concluded that the severity of Dise’s mental impairment does not “meet or medically equal the criteria of listing 12.08” in 20 C.F.R. Part 404, Subpart P, Appendix 1 . Dise argues that the ALJ erred by not also evaluating Dise’s depression under listing 12.04. 1 The Commissioner argues that a ny error by the ALJ in not discussing listing 12.04 was harmless. Again, we agree. Dise’s argument relies heavily on a report issued by Dr. Boulos, a state agency medical consultant. As part of that report, Dr. Boulos completed a Psychiatric Review Technique form; on that form Dr . Boulos identifies “Affective D isorders” under l isting 12.04 and “Personality Disorders” under

1 Dise did not raise h er step t hree argument before the district court, an d therefore she cannot assert it now for the first time on appeal. See Chaparro , 815 F.2d at 1011

. Regardless, her argument fails for the reasons explained herein. Case: 15-30339 Document: 00513304829 Page: 4 Date Filed: 12/11/2015No. 15

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5 l isting 12.08 as bases for his medical disposition conclusion. The ALJ’s opinion
eval uates Dise’ s entitlement under l isting 12.08 at s tep three, but never
mentions l isting 12.04. However, any error in f ailing to specifically address l isting 12.04 at s tep
t hree was harmless. “Procedural perfection in administrative proceedin gs is not required as lo ng as the substantial rights of a party have not been affected.”
Audler v. Astrue , 501 F.3d 446, 448 (5th Cir. 2007) ( citation and internal quotation marks omitted). Furthermore, procedural improprieties constitute a basis for remand only when the improprieties cast into doubt the existence of substant ial evidence to support the ALJ’ s decision. Morris v. Bowen , 864 F.2d 333, 335 (5th Cir. 1988). Dise ’s substantial rights have not been affected
here

. To qualify under l isting 12.04, the regulations require “marked” or

“ repeated ” limitations in two of the four areas identified in paragraph B. However, the v ery report on which Dise relies

— D r. B ou lo s’ s evaluation

— specifically states that Dise does not meet the degree of limitation required for any of the four paragraph B areas . Fur ther, the ALJ explicitly relied on Dr. Boulos’s report , and his decision as to l isting 12.08 was based on the very same form. Thus, the ALJ committed no error warranting remand at step three. C.
T he ALJ determined that Dise has “the residual functional capacity to perform a full range of work at all exertion al levels but with the following nonexertional limitation[]: she must avoid concentrated interaction with the general public, coworkers, and supervi sors.” Dis e claims t hat this finding is

erroneous because the ALJ failed to consider all of Dise ’s mental impairments and ignored relevant expert evidence. We disagree. The ALJ is responsib le for determining an applicant’ s residual functional capacity. See 20 C.F.R. § 404.1546 (c) . Here, t he ALJ carefully summarized and considered the relevant testimony and medical reports (including evidence Case: 15-30339 Document: 00513304829 Page: 5 Date Filed: 12/11/2015No. 15

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6 of depressio n and general anxiety disorder) and explained how he weighed the
evidence. In doing so, t he ALJ accorded substantial weight to the state agency medical consultants, Drs . Boulos, Kahler , and Haag. I n the section entitled “Functional Capacity Assessment , ” Dr. Boulos’ s report concluded that Dise

“ retains the abilities to understand, remember & carry out simple instruct ion s; make decisions; attend & concentrate for extended periods; to appropriately interact with coworkers & supervisors & adapt to routine changes in work setting.” Dr. Kahler reviewed Dr. Boulos’s report and affirmed its findings. Dr. Haag concluded that D ise’s memory and concentration were not impaired,
that her cognitive function was average, that she could follow simple
instructions , and that she is capable of managing her finances. He further noted that “ [i] n a typical work setting I would expect her t o be significantly impaired in social functioning only and would need to find employment that
minimized her interactions with others.” The ALJ also properly explained that it accorded no weight to other reports because they were either based solely on subjective complaints by Dise, rendered by an unqualified c ounselor, or were otherwise unsupported by the
evidence

. 2 ALJs may accord less weight , or no weight, to a physician’ s testimony for good cause; good cause include s disregarding statements that are brief and concl usory or otherwise unsupported by the evidence

. See Greenspan v. Shalala , 38 F.3d 232, 237 (5th Cir. 1994)

. Although t he credited medical evidence matches the ALJ’s final residual functional capacity conclusion, Dise raises two primary objections. First, she emphasizes Dr. Haag’s finding that she is “significantly impaired” in social functioning and claims that the ALJ disregarded this opinion . However, the ALJ did not ignore this evidence; he explicitly identified it in his conclusio n.

2 On appeal, Dise does not take issue with the ALJ’s decision to afford this evidence no weight. Case: 15-30339 Document: 00513304829 Page: 6 Date Filed: 12/11/2015No. 15

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7 Second, she argues that the ALJ failed to account for her depression diagnosis. But, as she concedes, the ALJ was only required at step f our to determine the effects that impairment s have on a claimant’s ability to work , see Ripley , 67 F.3d at 557 ; Dise’s depression diagnosis is not, itself, a functional limitation. Thus, the ALJ appropriately considered and weighed the medica l evidence and other testimony and came to a residual functional capacity conclusion that was supported by substantial evidenc e. D. At s tep f ive in his analysis, the ALJ posed the following hypothetical question to a vocational expert: I’d like you to assume a younger individual with the same educational background a nd no work history as [Dise ] has. If I were to find that indi vidual had no exertional limitations and had the following non

- exertional limitations; the individual is able to understand, remember, and carry out simple instructions; make decisions, attend and concentrate for extended periods; and must avoid concentrat ed exposure to co

- workers and supervisors and the general public. With those limitations, could you identify any occupations such an individual could perform?

Dise claims that this hypothetical question is defective because (1) it fails

to account for he r ODD and depression diagnoses and (2) it erroneou sly used the term “concentrated exposure ” to describe her mental impairment
limitations. First, the ALJ’s hypothetical question properly accounted for Dise’s impairments. A hypothetical posed to a vocational expert by an ALJ need only

“ reasonably incorporate ” the disabilities and limitations recognized by the ALJ. Bowling v. Shalala , 36 F.3d 431, 43 5

– 3 6 (5th Cir. 1994) . The ALJ’s question here tracked his residual functional capacity as sessment. As Case: 15-30339 Document: 00513304829 Page: 7 Date Filed: 12/11/2015No. 15

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8 previously discussed, that assessment was supported by substantial evidence. 3 Second, the term “concentrated exposure ” was not ambiguous, and any issues

w i th the terminolo gy were resolved when the ALJ clarified that he meant that

“ interactio n ” with others must be avoided

. Thus, we find no reversible error

. 4
E. Finally, Dise argues that the ALJ erred in relying solely on grid r ule
204.00 in his s tep f ive analysis . However, a review of the ALJ’s opinion clearly demonstrates that he relied on both the grid rule and the testimony of the vocational expert. Indeed, the ALJ stated the following in his step five analysis : “ [ b ] ased on the testimony of the vocational expert, the undersigned
concludes t hat, since June 1, 2009, considering the claimant’s age, education, work experience, and residual func tional capacity, the claimant is capable of making successful adjustment to other work that exists in significant numbers in the economy.” This was prope r because, as Dise concedes, we uphold f ifth

s tep determination s that are supported by testimony of a vocational expert and

use t he grid rules as a framework. See Vaughan v. Shalala , 58 F.3d 129, 13 1

– 3 2 (5th Cir. 1995) (upholding a finding tha t the claima nt was not disabled where the ALJ used the g uidelines, but also expressly relied upon the vocational expert' s testimony in his findings ); see also Carey v. Apfel , 230 F.3d 131, 147 (5th Cir. 2000) ; Snell v. Chater , 68 F.3d 466 (5th Cir. 1995)

. IV. CONCLUSION For the foregoing reasons, we AFFIRM.

3 In fact, the hypothetical question posed to the vocation al expert was very similar to the exact language used by Drs. Boulos and Haag in their functional capacity conclusions.

4 In addition, Dise’s non

- attorney representative was given the opportunity to examine the vocati onal expert; “that is, [Dise] could have corrected any errors in the hypotheticals, or added additional disabilities, during the hearing. ” Vaught v. Astrue , 271 F. App’ x 452 , 456 (5th Cir. 2008)

. Case: 15-30339 Document: 00513304829 Page: 8 Date Filed: 12/11/2015