Hammond v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
March 8, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-20107
_______________
KATHERINE E. HAMMOND,
Plaintiff-Appellant,
VERSUS
JO ANNE B. BARNHART,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-02-CV-4171
______________________________
Before DAVIS, SMITH, and DEMOSS,
Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Katherine Hammond appeals a summary
judgment in favor of the Commissioner of So-
cial Security denying her application for dis-
ability insurance and supplemental security in-
come benefits. Finding no error, we affirm.
I.
Hammond applied for disability insurance
benefits and supplemental security income ben-
efits, alleging disability starting in July 1997.
She claims she could not work because of
* Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.

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ulceritive colitis, immune deficiency disease,
irritable bowel syndrome, diarrhea, weakness,
nausea, stomach pain, headaches, and
malapsortion; she also said she was depressed.
The Commissioner denied the claim.
Hammond obtained a hearing before an ad-
ministrative law judge (the “ALJ”) in July
1999. She appeared pro se. The ALJ denied
Hammond’s request for benefits, finding that
although she suffered from irritable bowel syn-
drome and major depression, neither im-
pairment was sufficiently severe to qualify as a
severe disability within the meaning of the
Social Security Act (the “Act”). Hammond
then filed a pro se request for review by the
Appeals Council, which denied the request,
whereupon Hammond retained counsel and
urged the Appeals Council to reconsider,1
which was denied.
Hammond sued, and both sides moved for
summary judgment. The magistrate judge, sit-
ting as the district court by consent, granted
the Commissioner’s motion and denied Ham-
mond’s, holding that the ALJ had not legally
erred and that substantial evidence supported
the finding that Hammond was not disabled.
Hammond appeals on three grounds. First,
she argues that the ALJ abrogated his height-
ened duty to develop the facts in light of Ham-
mond’s pro se status.2 Second, Hammond
contends that (1) the record lacks substantial
support for the ALJ’s finding that Hammond’s
depression was not severe and (2) the severity
was determined without considering the opin-
ions of two state agency psychological consul-
tants. Finally, Hammond argues that the Ap-
peals Council erred in failing to remand the
case to consider sixty pages of new medical
records not introduced at the administrative
hearing.
II.
The Commissioner conducts a five-step se-
quential analysis in evaluating a disability
claim, see Bowling v. Shalala, 36 F.3d 431,
435 (5th Cir. 1994), and determines (1) wheth-
er the claimant is presently working;
(2) whether the claimant has a severe impair-
ment; (3) whether the impairment meets or
equals an impairment listed in appendix 1 of
the social security regulations; (4) whether the
impairment prevents the claimant from doing
past relevant work; and (5) whether the im-
pairment prevents the claimant from doing any
other substantial gainful activity, see id. A
finding that a claimant is not disabled at any
point in the five-step process terminates the in-
quiry. See Crouchet v. Sullivan, 885 F.2d
202, 206 (5th Cir. 1989).3 Title 42 U.S.C.
§ 423(d)(1)(A) defines disability as an “in-
ability to engage in any substantial gainful
activity by reason of any medically determina-
1 Hammond urged the Appeals Council to re-
consider because, she argued, the ALJ’s decision
was not supported by substantial evidence, the ALJ
applied incorrect legal standards, and new evidence
not introduced at the hearing established the sever-
ity of her depression. She also asserted the ALJ’s
finding that her irritable bowel syndrome was not
severe lacked support in the record.
2 Hammond appeared pro se for a portion of the
proceedings.
3 On the first four steps of the analysis, the
claimant bears the burden of showing he is disab-
led. See Wren v. Sullivan, 925 F.2d 123, 125 (5th
Cir. 1991). On the fifth, the Commissioner must
show that there is other, substantial work in the
national economy that the claimant can perform.
See id.

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ble physical or mental impairment which can
be expected to result in death or which has
lasted or can be expected to last for a continu-
ous period of not less than 12 months . . . .”
The ALJ determined that Hammond was
not disabled at the second step of the analysis,
finding that her impairment was not severe.
“[A]n impairment can be considered as not
severe only if it is a slight abnormality [having]
such minimal effect on the individual that it
would not be expected to interfere with the
individual’s ability to work, irrespective of
age, education or work experience.” Stone v.
Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985)
(internal quotations and citations omitted).
Our review is limited to determining wheth-
er there is substantial evidence in the record
supporting the Commissioner’s decision to
deny benefits and whether the Commissioner
applied proper legal standards in doing so.4
Substantial evidence is “that which is relevant
and sufficient for a reasonable mind to accept
as adequate to support a conclusion; it must be
more than a scintilla, but it need not be a
preponderance.” Leggett v. Chater, 67 F.3d
558, 564 (5th Cir. 1995) (quoting Anthony v.
Sullivan, 954 F.2d 289, 295 (5th Cir.1992)).
We may not reweigh the record evidence,
try the issues de novo, or substitute our judg-
ment for that of the Commissioner. See John-
son, 864 F.2d at 343. If, under these criteria,
substantial evidence supports such findings,
they are conclusive. See 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401
(1971).
III.
Hammond claims that, because she was ap-
pearing pro se, the ALJ had a heightened duty
to develop facts regarding the severity of her
impairment at the administrative hearing. We
do not consider this issue, because Hammond
raises it for the first time on this appeal. See
Leverette v. Louisville Ladder Co., 183 F.3d
339, 342 (5th Cir. 1999).
IV.
Hammond attacks the factual sufficiency of
the record the Commissioner relied on in de-
nying benefits. Hammond argues that (1) the
Commissioner reached her decision without
sufficiently considering the opinions of two
state agency psychological consultants and
(2) the record lacks substantial evidence in
support of the Commissioner’s finding.
A.
The record contains a Psychiatric Review
Technique form completed by a state agency
psychological consultant, A. Boulos, M.D.,
and affirmed by another, Mehdi Sharihan,
M.D.5 Hammond argues that the law requires
the ALJ to consider carefully all medical opin-
ions, both from sources who have treated or
examined the claimant and for nonexamining
sources such as medical professionals affiliated
with the disability program. She contends that
the ALJ failed to consider these doctors’
opinions in t he manner 20 C.F.R.
§ 404.1527(f)(2) requires.6
4 See Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994); Johnson v. Bowen, 864 F.2d 340,
347 (5th Cir. 1998).
5 The record contains several different spellings
of the name of the person we refer to as Sharihan.
6 That regulation requires that “[u]nless the
treating source’s opinion is given controlling
weight, the [ALJ] must explain in the decision the
weight given to the opinions of a State agency
medical or psychological consultant or other pro-

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We have three observations regarding
Hammond’s argument. First, although there is
no statutorily or judicially imposed obligation
for the ALJ to list explicitly all the evidence he
takes into account in making his findings, §
404.1527(f)(2) does require that the ALJ
articulate the weight given to experts in the
positions of Boulos and Sharihan. The ALJ
therefore erred in failing to provide such an
explanation.7 Our second and third obser-
vations, however, explain why we consider the
error harmless.8
Either the evidence in Boulos’s and Shari-
han’s reports supports and confirms the ALJ’s
finding, or it does not. We consider both pos-
sibilities. Our second observation is that, even
though the ALJ erred in failing explicitly to
weigh the relevant evidence, the opinions ex-
pressed by Boulos and Sharihan seem to con-
firm those of the other medical experts.
Under this reading of the record, the error
would obviously be harmless. When rating the
severity of Hammond’s impairment, Boulos
indicated that Hammond’s mental disorder
only slightly limited her daily activities, in-
cluding the range of her social interactions.
He concluded in his final “Functional Capacity
Assessment” that she retained the ability to
understand and follow simple instructions, to
interact adequately with coworkers and super-
visors, and to adapt to routine working envi-
ronments.9
Our t hird observation is that if, in the al-
ternative, one believed the forms filled out by
Boulos and affirmed by Sharihan undermined
the ALJ’s finding of insufficient severity, they
would not do so to the degree necessary for us
to overturn the ALJ’s determination on sub-
stantial evidence review. The ALJ’s failure to
mention a particular piece of evidence does
not necessarily mean that he failed to consider
it, and the ALJ’s decision states explicitly that
he considered the entire record in his decision.
In ruling on the severity of Hammond’s condi-
tion, he likely made the same fact-based judg-
ments that form the basis of our refusal to
overturn his decision on substantial evidence
review.10 We discuss this evidence more thor
oughly in the subsequent subsection.
gram physician or psychologist . . . .” 20 C.F.R.
§ 404.1527(f)(2)(ii).
7 The district court’s holding that the ALJ need
not furnish such an explanation is therefore over-
ruled, but this decision does not affect the outcome,
as we explain.
8 The harmless error doctrine applies in Social
Security disability cases. See Morris v. Bowen,
864 F.2d 333, 335 (5th Cir. 1998). “Procedural
perfection in administrative proceedings is not req-
uired” as long as “the substantial rights of a party
have not been affected.” Id. (quoting Mays v.
Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)).
9 There is evidence that Boulos did not consider
Hammond’s conditions particularly severe. In the
“Rating of Impairment Severity” section, Boulous
found that no functional limitations met the degree
of impairment necessary to satisfy the Listings (of
disorders). The medical form indicates that, for an
impairment to satisfy the Listings, it must be
marked, extreme, constant, or continual. In other
words, although the form indicates that Hammond
“often” suffered deficiencies of concentration, that
level of severity is less than a “frequent” limitation,
the degree that appears to be necessary to qualify
Hammond’s impairment as “severe” under the
relevant legal and medical criteria.
10 Procedural errors constitute bases for remand
only where they cast into doubt the existence of
substantial evidence to support the ALJ’s decision.
See Morris, 864 F.2d at 335.

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B.
Hammond contends that there is no record
evidence supporting the finding that her im-
pairments of irritable bowel syndrome and de-
pression are not severe. Again, in Stone, 752
F.2d at 1101, we stated that “an impairment
can be considered as not severe only if it is a
slight abnormality [having] such minimal effect
on the individual that it would not be expected
to interfere with the individual’s ability to
work, irrespective of age, education, or work
experience.”
Having reviewed Hammond’s psychiatric
record, Ashok Khushalani, a psychiatrist, tes-
tified before the ALJ:
[T]here’s not much of a history of psychiat-
ric treatment in the record. The only refer-
ence to a [sic] depression is in a psychiatric
consultative report done by Dr. Gunnell
[sic] in April of 1999. That makes refer-
ence to her being diagnosed in the past with
depression, and having been treated with
certain anti-depressants. Other than that,
there’s no record of any ongoing treatment,
except that she’s on Paxil, which is an anti-
depressant, and that she’s been stable as it
relates to her depression on the Paxil. But
there is no ongoing evidence of any
significant symptoms of depression or that
the symptoms are interfering in any kind of
functioning.
Khushalani’s characterization of Hammond’s
psychiatric treatment history is consistent with
the appellate record.11 When the ALJ asked Khu
shalani whether Hammond had “any objective
work-related restrictions,” he responded that
such restrictions were “[n]ot evident in the
record, pertaining to the mental component.”
Psychiatrist Kathy Scott-Gurnell conducted
a consultive psychiatric examination of Ham-
mond in April 1998 and reported that Ham-
mond had left her job because of stress and
crying spells, that her concentration was poor,
that she was isolative, that she had feelings of
hopelessness, that she occasionally had suicidal
ideation, that she had good and bad days, and
that she had an anxiety attack in 1997. Scott-
Gurnell nonetheless determined that when
Hammond’s colitis was not active, she could
perform all activities of daily living. Based on
this examination, Scott-Gurnell concluded that
Hammond’s insight and judgment were good
but that her concentration was impaired.12
Although Scott-Gurnell assigned Hammond a
Global Assessment of Functioning (“GAF”)
score of 40 (a score that could be consistent
with a severe impairment), the ALJ determined
that Hammond’s specific impairments were
not severe.13
11 The first appearance of depression in the rec-
ord is a treatment note from Dr. D.T. Shah in
March 1995, stating that Hammond was taking Ef-
fexor, a common antidepressant. The next treat-
ment notes are from a visit Hammond made to the
Fort Bend Family Health Clinic in February 1998,
where she reported that she had been depressed for
six years and had previously, but was no longer,
taking Zoloft. She also reported chest tightness
and shortness of breath, conditions that may have
been anxiety-induced. Hammond was referred to
social services for anxiety, depression and panic at-
tacks, and she was placed on the antidepressant
Trazodone.
12 Scott-Gurnell noted that Hammond had so-
matic and psychiatric conditions that were sensitive
to stress and that the prognosis was “fair but good
if mental illness [were] treated to remission.”
13 Specifically, the ALJ determined that Scott-
Gurnell’s findings were not substantiated by the

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The record also contains medical records
concerning Hammond’s depression from Mark
Stone, a general practitioner who treated
Hammond in 1998 and 1999. Several treat-
ment notes from June 1998 indicated that
Hammond was responding well to her 50-mil-
ligram dosage of Zoloft. Notes from July
1998 indicated that Stone granted Hammond’s
request to increase her dosage to 100 milli-
grams per day. Over the course of the next
several months, Hammond was tapered off
Zoloft and began taking ten milligram doses of
Paxil. In February 1999, the treatment notes
described Hammond as doing “fairly well.”
Her dosage was eventually increased to 20
milligrams, but her condition remained good.
Based on this evidence, the ALJ noted that
Scott-Gurnell had diagnosed Hammond with
major depressive disorder but that she re-
mained capable of performing daily functions
when her colitis was not active. Based on
Khushalani’s testimony, the ALJ ruled that
Hammond’s impairments did not qualify as
severe, in spite of a specific finding that she
indeed suffered from major depressive
disorder.14 In a psychiatric review technique
form appended to his decision, the ALJ
determined that Hammond had no restrictions
on daily living, no difficulties in maintaining
social functioning, never had deficiencies of
concentration, persistence, or pace, and never
had an episode of deterioration or
decompensation in a work-like setting.
The ALJ did not explicitly mention Scott-
Gurnell’s determination that Hammond’s con-
centration was impaired, that she had left her
last job because of a crying spell, that she had
a GAF score of 40, or that her prognosis was
only fair unless her depression was adequately
treated. As we have said, the ALJ also
omitted discussion of Boulos’s opinions,
opinions that Sharihan affirmed.
Our status as an appellate court precludes
us from reviewing the record de novo, and
there is some evidence that points to a
conclusion that differs from that adopted by
the ALJ. We nonetheless decline to reverse
the ALJ because there is far more than a
scintilla of evidence in the record that could
justify his finding that Hammond’s
impairments were not severe disabilities within
the meaning of the Act.15
V.
Hammond contends that the Appeals Coun-
cil erred by failing to consider sixty pages of
new medical records pertaining to treatment
that occurred after the administrative hearing.
The introduction of new evidence justifies
remand only where it is material and there is
good cause for the petitioner’s failure to
incorporate such evidence into the record of a
prior proceeding. 42 U.S.C. § 405(g). We
consider new evidence to be material if there is
additional evidence of record, that even where other
treating sources referenced Hammond’s medication
they did not classify her impairment as severe, and
that Hammond had worked in spite of her condition
for six years.
14 The word “major” in “major depressive dis-
order” is a medical term and does not, in and of
itself, require us to consider the disorder “severe”
within the meaning of the law.
15 Hammond devotes little discussion to her co-
litis claim in her original and reply briefs. The rec-
ord on this question, apparently consisting in part
of a report filled out by Dr. Moise D. Levy, indi-
cates that Hammond’s allegations of colitis were
“credible but not severe.” Given the absence of
argumentation on this issue, we will not overturn
the ALJ’s finding on substantial evidence review.

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a reasonable probability that, if it had been
presented to the Commissioner, it would have
changed the outcome. See Latham v. Shalala,
36 F.3d 482, 483 (5th Cir. 1994). The
evidence must “relate to the time period for
which the benefits were denied, and . . . not
concern evidence of a later-acquired disability
or . . . the subsequent deterioration of the
previously non-disabling condition.” Johnson
v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985).
Hammond seeks to submit medical records
that relate almost exclusively to her post-hear-
ing health and treatment16 and that do not
speak to the severity of her depression within
the meaning of the Act.17 It is not probable
that the ALJ would have decided the matter
differently if presented with the additional rec-
ords. Accordingly, the Appeals Council did
not err in refusing to consider them.
AFFIRMED.
16 The district court’s review of the record
shows that 33 of the 42 pieces of evidence Ham-
mond seeks to submit post-dated the ALJ’s deci-
sion, issued on August 26, 1999.
17 All of the resubmitted evidence is cumulative,
and none of it speaks to the severity of the im-
pairment within the meaning of the Act. We
cannot say there is a reasonable probability that it
would have changed the Commissioner’s decision.

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