Hebert v. Apfel

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30417
Summary Calendar
JEROME W. HEBERT,
Plaintiff-Appellant,
versus
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-817
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October 31, 2000
Before REAVLEY, DeMOSS and BENAVIDES, Circuit Judges.
PER CURIAM:*
Jerome W. Hebert appeals from the district court’s
affirmance of the Commissioner’s decision denying him social
security disability benefits.
He argues that substantial evidence does not support the
administrative law judge’s (ALJ’s) decision that he has the
residual functional capacity (RFC) for light work. He also
contends that the ALJ failed to develop fully and fairly the
record on Hebert’s RFC as to the critical date in question,
September 30, 1995, Hebert’s last day of insured status. From

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our review of the record, the finding at issue is supported by
substantial evidence. See Selders v. Sullivan, 914 F.2d 614, 618
(5th Cir. 1990).
Hebert argues that the ALJ failed to develop a sufficient
record concerning his severe impairment of depression. He
contends that the record is inadequate because the ALJ erred by
failing to secure evidence of Hebert’s RFC in relation to
Hebert’s major depression during the relevant period. He
contends that a consultative examination was required under the
circumstances. Even assuming that the ALJ erred and that a
consultative examination was necessary, the medical record of the
relevant period before Hebert’s insured status expired indicates
that Hebert was then not suffering from major depression -- the
depression increased after the relevant period. To establish
prejudice ensuing from an error, Hebert “must show that he could
and would have adduced evidence that might have altered the
result.” Brock v. Chater, 84 F.3d 726, 728 (5th cir. 1996).
Hebert fails to establish prejudice. See id. at 728-29; Pierre
v. Sullivan, 884 F.2d 799, 802 (5th Cir. 1989).
Hebert argues that the testimony by the vocational expert
does not constitute substantial evidence. He contends that the
hypothetical question to the vocational expert was flawed because
the question omitted consideration of chronic pain, a factor
identified by two physicians treating Hebert, and because the
question failed to focus on the relevant period ending on the
last day of Hebert’s insured status. Because the hypothetical
question reasonably incorporated the impairments and limitations

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recognized by the ALJ and because Hebert had the opportunity to
add consideration of other asserted limitations, no error is
detected. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir.
1988).
AFFIRMED.

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