Glass v. Barnhart

* Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
1 Glass is a 53 year old man who suffers from ankylosing spondylitis,
colitis, irritable bowel syndrome, atrial fibrillation, recurrent kidney stones,
and renal insufficiency, among other ailments. He retired for medical reasons
from his position as a senior regulatory specialist in the oil and gas industry.
United States Court of Appeals
Fifth Circuit
F I L E D
November 28, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-11513
Summary Calendar
JOE R. GLASS,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:04-CV-53-Y
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
An administrative law judge (“ALJ”) conducted a hearing on the
denial of appellant Glass’ claim for disability benefits under
Title II of the Social Security Act. The state agency’s reviewing
physician found that Glass could perform medium work. The ALJ
reduced that designation, finding that Glass was only capable of
light work.1 Although Glass’ impairments were severe, the ALJ

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2 To determine whether a claimant is disabled, and thus entitled to
disability benefits, a five-step analysis is employed. First, the claimant must
not be presently working at any substantial gainful activity. Second, the
claimant must have an impairment or combination of impairments that is severe.
Third, disability will be found if claimant’s impairment or combination of
impairments meets or equals an impairment listed in the appendix to the
regulations. Fourth, if disability cannot be found on the basis of claimant’s
medical status alone, the impairment or impairments must prevent the claimant
from returning to his past relevant work. Fifth, the impairment must prevent the
claimant from doing any work, considering the claimant’s residual functional
capacity, age, education, and past work experience. 20 C.F.R. § 404.1520.
3 Relying on the testimony of a vocational expert, the ALJ found that
Glass’ previous work did not exceed his limitations, as described by Dr. Weilepp
based on the assessment of Glass’ medical history in the record.
4 Even though the ALJ changed the determination in Glass’ favor and a
reversion to the state agency’s assessment would not help Glass, he contends
that, in any event, he lost full and meaningful review of the initial
determination. Additionally, Glass objects to Dr. Weilepp as an expert witness
because of an alleged conflict of interest and since he allegedly lacks the
requisite experience due to a twelve year hiatus from the practice of medicine.
found that they did not meet or equal the criteria of any listed
impairment, necessary to receive disability benefits.2 Moreover,
the ALJ found that Glass was capable of performing his past
relevant work and, therefore, was not disabled for purposes of the
Act.3
In so deciding, Glass objected to the ALJ’s reliance on the
expert testimony of Dr. Weilepp, a non-examining physician.4 The
Appeals Council denied his petition for review, adopting the ALJ’s
opinion as the final decision, and Glass then filed a timely
request for judicial review. The district court adopted the
Magistrate Judge’s recommendation and entered final judgment
against Glass. Glass asserts the same errors on appeal: that the
record was not adequately developed and that the ALJ’s decision is
not supported by substantial evidence. Additionally, Glass avers
that the district court impermissibly upheld the Commissioner’s

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5 Dorsey v. Heckler, 702 F.2d 597, 603 (5th Cir. 1983).
6 Legget v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
7 Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
8 Id.
9 Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
decision based on the post hoc arguments presented by counsel.
We review the Commissioner’s decision independently and
without assumption that the district court acted correctly.5 A
denial of disability benefits is reviewed only to determine whether
the Commissioner applied the correct legal standards and whether
the decision is supported by substantial evidence in the record as
a whole.6 Substantial evidence is such relevant evidence as a
reasonable mind might accept to support a conclusion; it is more
than a mere scintilla and less than a preponderance of the
evidence.7 A finding of no substantial evidence is appropriate
only if no credible evidentiary choices or medical findings support
the decision.8 This Court does not re-weigh the evidence and will
not substitute its judgment for that of the Commissioner.9
Glass argues that record was not sufficiently developed
because the ALJ failed to request a physical examination by a
practicing physician, from which a first-hand determination about
his work-related limitations could be made. Having only reviewed
the copious exhibits and evidence, Dr. Weilepp never personally
examined Glass. Therefore, Glass argues that this reliance on Dr.
Weilepp’s expert opinion, lacking a first-hand assessment, deprived

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10 Prior administrative determinations are not binding on the ALJ. 20
C.F.R. § 404.905 (initial determinations are binding unless reconsideration is
requested, § 404.921(a) (reconsidered decisions are binding unless an ALJ hearing
is requested, and § 404.1527(f)(2)(i) (ALJ’s “are not bound by any findings made
by State agency medical or psychological consultants”).
11 Glass does not point to any instances in which the ALJ deferred to
prior administrative determinations. In fact, the record was supplemented just
prior to the hearing before the ALJ, and, consequently, the ALJ considered
evidence not available at the previous administrative hearings. Glass did not
object to the inadequacy of the record before the ALJ.
12 An ALJ has no affirmative duty to redevelop the record, where the
record substantially supports the ruling. It is unchallenged that the record in
the present case includes evidence provided by examining physicians; it is not
incumbent upon the system to automatically order new medical examinations at each
stage of the appeal process in order to provide a full and fair review.
13 Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).
14 Id. at 458 (5th Cir. 2000).
Glass of a de novo hearing10 and that the ALJ merely relied upon the
evidence before the state agency.11 Glass argues that the record
does not contain any conclusions as to the claimant’s functional
limitations due to his illnesses; rather, the record consists of
clinical notes and raw medical data, providing no conclusions as to
the extent of his capacity for work. As such, Glass contends that
Dr. Weilepp’s opinion cannot form the sole basis of the
determination of work capacity because he, himself, never
physically examined Glass. This argument lacks merit.12
It is true that if the ALJ determines that the record is not
sufficiently developed with evidence from treating physicians, the
ALJ should seek clarification from a physician that has examined
the claimant.13 An ALJ has a duty to develop the facts fully and
fairly, and if he does not satisfy this duty, his decision is not
substantially justified.14 Moreover, the opinion of a non-examining

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15 Id.
16 20 C.F.R. 404.1527(f)(2)(iii); See Villa v. Sullivan, 895 F.2d 1019,
1024 (5th Cir. 1990) (stating that an ALJ may rely on a non-examining physician’s
assessment when those findings are based upon careful evaluation of the medical
evidence and do not contradict those of an examining physician).
17 Moreover, Glass must demonstrate and makes no showing that the ALJ’s
failure to request additional information from a treating source prejudiced his
case. See Newton, 209 F.3d at 458.
18 Ripley, 67 F.3d at 557-58.
physician cannot cure an incomplete record.15 Glass, however,
concedes that the regulations permit the ALJ to use the testimony
of a non-examining physician in assessing the nature and severity
of the claimant’s impairments.16 While it is true that an ALJ
should have a treating physician’s opinion, detailing the
claimant’s capacity to work, the absence of such a statement does
not automatically invalidate an ALJ’s decision.17 The proper
inquiry, thus, delves into the substantiality of the evidence on
record to support the ALJ’s ruling.18
Accordingly, Glass contends that the ALJ inappropriately
relied on Dr. Weilepp’s opinion because it conflicted with the
evidence on record. Other than restating the evidence contained in
the record, Glass provides no evidence of conflict between Dr.
Weilepp’s testimony and that of prior examining physicians.
Likewise, Glass does not provide any evidence–or even point to the
alleged post hoc arguments–to support his conclusory assertion of
such error. The circumstances of the present case do not run afoul
of the admonition against the use of “circuit-riding doctors who

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19 Richardson v. Perales, 91 S.Ct. 1420, 1432-33 (1971) (Douglas, J.,
dissenting).
20 Additionally, Glass’ two challenges to the use of Dr. Weilepp as an
expert witness also lack merit. Not only did Glass not initially object to Dr.
Weilepp as an expert witness until after his testimony was taken, but there is
no evidence that Dr. Weilepp, as an independent contractor, ever worked on Glass’
case while temporarily employed by Cigna, Glass’ insurer. Second, Dr. Weilepp’s
expertise is not discredited, as a matter of law, simply by his lack of recent
practice.
never see or examine claimants to defeat their claims.”19 Having
thoroughly reviewed the record, we find that it is amply developed
and that Glass’ residual functional capacity, as determined by the
ALJ, is supported by substantial evidence on the record as a
whole.20
AFFIRMED.

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