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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 91-4713
Summary Calendar
HAMEY TOUSSANT,
versus
U. S. SECRETARY OF HEALTH
AND HUMAN SERVICES,
Plaintiff-Appellant,
Defendant-Appellee.
Appeal from the United States District Court for the
Western District of Louisiana
(90-cv-0180)
(January 26, 1993)
Before GARWOOD, HIGGINBOTHAM, and BARKSDALE, Circuit Judges. *
GARWOOD, Circuit Judge:
Defendant-appellee the Secretary of Health and Human Services
(Secretary) denied social security disability insurance benefits to
plaintiff-appellant Hamey Toussant (Toussant or claimant) in a
decision made final in January 1991 when the Appeals Council
* Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the Court has determined that this opinion
should not be published.

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declined to review the December 1989 denial of benefits by an
administrative law judge (ALJ). On review pursuant to 42 U.S.C. §
405(g), the United States District Court for the Western District
of Louisiana granted summary judgment for the Secretary upon
recommendation of the United States Magistrate. Because we
conclude that the ALJ improperly applied controlling legal
standards concerning severe impairments, we remand to the Secretary
for reconsideration of this issue.
Facts and Proceedings Below
At the time of the hearing before the ALJ on the current
application for disability insurance benefits, Toussant was sixty-
two years old. He had worked most of his life doing heavy manual
labor in the construction business; he had not worked since 1982.
He has a second- or third-grade education and is functionally
illiterate, able only to sign his name in cursive writing.
In August 1985, Toussant was admitted to the W. O. Moss
Regional Hospital in Lake Charles, Louisiana, complaining that he
had awakened, unable to move his left leg, during the night prior
to admission. He also complained of weakness in his left arm and
numbness on his left side. He reported having hit his head eight
or ten days before his admission to the hospital. According to
hospital records, he felt his strength returning the day after his
admission. He was able to walk but frequently dragged his left
leg. Sensory response was slightly decreased on his left side. He
was monitored and treated for hypertension. The diagnosis was that
Toussant had suffered a mild stroke that affected the left side of
his body. He was discharged after four days, at which time he

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could walk slowly without falling. He was prescribed medication
for his hypertension, which was under control.
Toussant returned to the hospital on September 12, 1985,
complaining that he had almost passed out twice the day before. He
was discharged the same day; the impression was of lightheadedness
secondary to poor cardiovascular response caused by a reaction to
his medication. An intravenous pyelogram done in January 1986
showed normal results. Some degenerative disk changes and
arthritic changes in his spine were noted at that time.
Evidence of Toussant's medical condition during 1986 and 1987
consists solely of testimony of the claimant and his wife at the
evidentiary hearing before the ALJ. The ALJ in his December 1989
decision, noting that the hospital had represented that it had
delivered its entire file, which did not include records from 1986
or 1987, concluded that Toussant's evidence was not credible:
"As a result of inconsistencies in testimony regarding
sleep habits, marked limitation of physical functions
versus the ability to drive and participate in
recreational activities, the testimony regarding ongoing
treatments and entries into the written record indicating
no treatment during the period in question, the testimony
of worsened condition and history of recovery given to
the consulting examiner, the Administrative Law Judge
finds that claimant's testimony and allegations are
totally lacking in credibility regarding his physical
condition in 1986 and 1987."
Medical records show that Toussant was admitted to the
emergency room on September 7, 1988, seeking treatment after being
hit on the head with a chair. He was continuing to have problems
with hypertension, but hospital records reveal that he had not been
taking his medication for financial reasons. In October 1988, his
hypertension was under control; problems recurred the next month

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and on and off throughout 1989 because of non-compliance with his
medication. He experienced problems with his left eye in December
1988 and was instructed to see an optometrist.
Dr. Steven J. Snatic, a neurologist, performed a consultative
exam on December 12, 1988. In his report (the Snatic report), he
described Toussant as a "well developed, well nourished, generally
healthy looking man with no obvious physical peculiarities," and
found his mental status to be normal. Dr. Snatic noted that
Toussant seemed to have "adequate muscle strength in all four
limbs, though he perceives himself that his left leg is weaker than
the right." Sensory response was decreased in the upper left
extremity. Dr. Snatic's impression was that the stroke had left
Toussant with "residual coolness, some sensory loss and perhaps
mild weakness of the left leg. He has a problem with balance which
prevents him from being able to walk on a narrow base." He
concluded that Toussant probably would not be able to engage in
activities requiring heavy manual labor or work with potentially
dangerous machinery, and that, although physically able to perform
lighter work, Toussant would not qualify for such work because of
his lack of experience, training, and his inability to read and
write.
Toussant first applied for social security benefits in
September 1985; this application and a request for reconsideration
were both denied. Following an evidentiary hearing, an ALJ issued
a decision on June 17, 1986, finding that Toussant was not disabled
within the meaning of the Social Security Act (Act), and denying
benefits on the basis of that finding. Toussant did not appeal

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this decision.
On September 26, 1988, Toussant filed the current application
for disability insurance benefits. 1 He alleged that he had been
disabled since September 3, 1985, because of the stroke, weakness
in his left leg, pain in both legs, and high blood pressure. This
application was denied by the Social Security Administration and
the state agency in April 1989; a request for reconsideration was
denied in September 1989.
Toussant had an evidentiary hearing before an ALJ on November
13, 1989. Both Toussant and his wife testified before the ALJ.
Noting that Toussant had previously filed an application for
disability insurance benefits, the ALJ limited his consideration of
the disability issue to the unadjudicated period between June 17,
1986, the date of the prior ALJ decision, and December 31, 1987,
the date Toussant's insured status expired. At the hearing,
counsel for Toussant requested that the ALJ grant a psychological
examination for his client. In a decision issued December 12,
1989, the ALJ denied benefits to Toussant on the grounds that,
because his impairment was "slight," he was not disabled; the ALJ
denied the request for a psychological examination.
Following the decision of the ALJ, Toussant's counsel arranged
for psychological testing for his client. The psychologist, Dr.
Downing, administered the WAIS-R test, on which Toussant received
a verbal I.Q. of 69, a performance I.Q. of 71, and a full scale
1 Toussant filed a concurrent application for supplemental
security income. Although found to be disabled, under identical
criteria as for the current application, and thus eligible for
benefits, his excess income precludes payment of benefits.

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I.Q. of 69. Dr. Downing also administered the Wechsler Memory
Scale test, which provided a result of 62. He "saw no evidence of
malingering -- to the contrary [Toussant] persevered even when
tasks were well beyond him." In his report (the Downing report),
his impression was of mild mental retardation.
Toussant requested review of the ALJ's decision by the Appeals
Council (Council) and forwarded the Downing report to the Council.
Although it considered the Downing report, the Council concluded
that the findings of Dr. Downing revealed Toussant's mental state
as of the date of the examination but did not relate back to the
period in question and that the record through December 27, 1988
disclosed no evidence of mental impairment. The Council denied
review of the ALJ's decision, thus making the ALJ's denial of
disability insurance benefits the final decision of the Secretary.
Toussant sought review of the Secretary's decision in the
district court. The court, upon recommendation of the magistrate,
granted summary judgment for the Secretary. Toussant brings this
appeal.
Discussion
The Act defines "disability" as the "inability to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months." 42 U.S.C. §
423(d)(1)(A). A "physical or mental impairment" is "an impairment
that results from anatomical, physiological, or psychological
abnormalities which are demonstrable by medically acceptable

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clinical and laboratory diagnostic techniques." 42 U.S.C. §
423(d)(3). In order for a claimant to be eligible to receive
disability insurance benefits, his disability must exist on or
before the expiration of his insured status. 2
Federal regulations set forth a five-step sequential analysis
for the determination of a disability: (1) Is the claimant
presently working at a substantial gainful activity; (2) does the
claimant have a severe impairment; (3) is the impairment listed in
Appendix I to the regulations; 3 (4) is the claimant capable of
performing past relevant work; and (5) is the claimant capable of
performing any other work? 20 C.F.R. § 404.1520. If the claimant
is found disabled or not disabled at any step in this sequence, no
further analysis need be made. Id. The burden of proving
disability is on the claimant for the first four steps of the
determination process; only when the fifth step is reached does the
burden shift to the Secretary to prove that the claimant is capable
of performing some type of work. Wren v. Sullivan, 925 F.2d 123,
125 (5th Cir. 1991). The claimant's age, education, and past work
experience are considered at the fifth step. 20 C.F.R. §
404.1520(f).
We are limited in our review of the denial of disability
benefits to a consideration of two issues: (1) whether the
decision of the Secretary is supported by substantial evidence, and
2 Toussant's insured disability status expired on December 31,
1987.
3 If a claimant's impairment is listed, a finding of
disability is automatic.

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(2) whether the Secretary applied the proper legal standards. 42
U.S.C. § 405(g); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.
1992). Toussant raises claims under both issues.
Substantial evidence is that which a reasonable mind might
find adequate to support a conclusion. Richardson v. Perales, 91
S. Ct. 1420, 1427 (1971). It is more than a mere scintilla, but it
may be less than a preponderance. Anthony v. Sullivan, 954 F.2d at
295. A finding of no substantial evidence is appropriate only if
no credible evidentiary choices or medical findings exist to
support the decision. Johnson v. Bowen, 864 F.2d 340, 343-344 (5th
Cir. 1988).
Toussant claims that the Secretary's decision is not supported
by substantial evidence because the ALJ did not meet his obligation
to develop a full and fair administrative record. Specifically, he
contends that the ALJ failed to develop a sufficient record when he
refused to order a consultative psychological examination with I.Q.
testing. We assume, arguendo, that in appropriate circumstances
the ALJ's responsibility may remain even when a claimant is
represented by counsel at the hearing, as was the case here. Brown
v. Bowen, 827 F.2d 311, 312 (8th Cir. 1987). Failure to develop an
adequate record does not always require reversal; the claimant must
show that he has been prejudiced by that failure. Kane v. Heckler,
731 F.2d 1216, 1220 (5th Cir. 1984).
Consultative examinations are within the discretion of the ALJ
and are not required unless the record establishes that they are
necessary in order for the ALJ to make a decision on the claim.
Pearson v. Bowen, 866 F.2d 809, 812 (5th Cir. 1989). See Jones v.

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Bowen, 829 F.2d 524, 526 (5th Cir. 1987) (claimant must "raise a
suspicion concerning such an impairment necessary to require the
ALJ to order a consultative examination to discharge his duty of
`full inquiry'").
Toussant asserts that there was sufficient evidence before the
ALJ to support the request for the psychological examination,
citing the Snatic report in which the doctor noted Toussant's
limited education and literacy, his claim that his medication made
him sleepy and weak and unable to drive, and testimony of his wife
that "[t]he stroke even messed up his head, his brains" and that
"it don't seem like he's well enough to learn." Both Toussant and
his wife testified that he had been forgetful ever since he had the
stroke.
The ALJ found otherwise, noting that Toussant had never
applied for disability insurance benefits on the basis of mental
impairment, but only on the basis of his stroke, and that Toussant
never expanded his claim to include a mental impairment prior to
the hearing. "When there is no contention that a claimant is
mentally retarded, a few instances in the record noting diminished
intelligence do not require that the ALJ order an I.Q. test in
order to discharge his duty to fully and fairly develop the
record." Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989).
Further, the ALJ concluded that no evidence suggested a nervous or
emotional pathology, that the record did not raise any suspicion as
to a potentially disabling mental impairment, and that Toussant's
mental ability had not prevented his past work.
Although there is some evidence in the record of Toussant's

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limited education, it is not such that would reveal the necessity
of a psychological examination. In fact, Toussant stated that he
left school to work with his father; he never attributed his lack
of education to any limited intellectual ability. His counsel's
request for the psychological examination was based on a reference
to Toussant's lack of education. The isolated statements of
Toussant's wife, and the testimony regarding his forgetfulness are
not enough to require the ALJ to order the requested examination.
Id. at 802-803.
We conclude that the ALJ did not abuse his discretion in
refusing to order the psychological examination with I.Q. testing
and that therefore he fulfilled his duty to develop the
administrative record.
Toussant also claims that the Council erred in finding that
the mental retardation revealed by the Downing report, which the
Council considered, did not relate back to the period before his
insured status expired.
The Secretary concedes that the mere fact that an I.Q. test
was not performed previously does not preclude a finding of earlier
retardation. Branham v. Heckler, 775 F.2d 1271, 1274 (4th Cir.
1985). However, the Secretary points out that the Council
supported its dismissal of the Downing report by observing that
"[t]he evidence of record through December 22, 1988 shows no memory
deficits or other mental impairment." Indeed, the evidence in the
record suggested several reasons for the low I.Q. scores other than
a mental impairment, including Toussant's lack of a formal
education, his head injury sustained in September 1988, and, as Dr.

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Downing noted in his report, Toussant's poor eyesight. 4
Further, Toussant has not shown any prejudice resulting from
the Council's disregard of the Downing report. An I.Q. of 69,
without the co-existence of another severe impairment during the
relevant time period, does not meet a listed impairment and cannot
be the sole grounds for a finding of disability. 20 C.F.R. Part
404, Subpart P, Appendix I, §§ 12.05(B) (I.Q. of 59 or less
required for finding of disability based solely on mental
retardation), 12.05(C) (requiring I.Q. of 60-70 and the presence of
at least one other severe impairment). Even had the Council
accepted Dr. Downing's findings as relevant to the time period in
question, the ALJ's finding that Toussant had no other severe
impairment would preclude a finding of disability solely on grounds
of mental retardation.
We hold that substantial evidence in the record supports the
Council's conclusion that the Downing report revealing mental
retardation did not relate back to the period in question.
Further, we observe that, even if the Council should have
considered the substance of the Downing report, no prejudice
resulted to Toussant because his I.Q. of 69 will not alone support
4 Toussant contends that the district court exceeded the
limits of judicial review when it concluded that Toussant's head
injury of September 7, 1988, could have accounted for the current
I.Q. scores and mental retardation. The Council did not mention
this reason in its refusal to review the ALJ's decision. Because
we conclude that Toussant has not shown any prejudice resulting
from the Council's failure to expound upon its reasons for
determining that the I.Q. testing did not relate back to the
crucial time period, any error on the part of the district court
in articulating such a reason is harmless. Babineaux v. Heckler,
743 F.2d 1065, 1067 n. 2 (5th Cir. 1984) (where Secretary applied
correct standard, district court error was harmless).

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a finding of disability.
The ALJ determined that Toussant's impairment was not severe,
ending his evaluation at the second step of the analysis. The
controlling standard in this Circuit for determining the severity
of an impairment is found in Stone v. Heckler, 752 F.2d 1099, 1101
(5th Cir. 1985): "'[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'" (emphasis added) (quoting Estran v. Heckler, 745
F.2d 340, 341 (5th Cir. 1984)). 5
Toussant claims that the ALJ did not properly apply the Stone
standard in determining that his impairment was not severe.
Although in his findings, the ALJ cited Stone and stated that
Toussant did not have an impairment "which significantly limit[s]
his ability to perform basic work-related activities," his
conclusion is worded in more restrictive language:
"The Administrative Law Judge concludes that the record
in this case does not substantiate the presence of an
impairment which precluded claimant from performing any
activity during the period in question and, therefore,
5 The regulations define a non-severe impairment as one which
"does not significantly limit [a claimant's] physical or mental
ability to do basic work activities." 20 C.F.R. § 404.1521(a);
see also 20 C.F.R. § 404.1520(c). In Stone v. Heckler, we
determined that this regulation was inconsistent with the
language and legislative history of the Act because it unduly
limited the impairments for which benefits would be available.
752 F.2d at 1104-1105. Although the Supreme Court upheld the
severity regulation in Bowen v. Yuckert, 482 U.S. 137, 107 S.Ct.
2287 (1987), we have held that Yuckert did not supersede our
standard set forth in Stone. Anthony v. Sullivan, 954 F.2d 289,
294-295 (5th Cir. 1992).Thus we will consider the propriety of
the ALJ's severity determination under the Stone standard.

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the claimant did not have a severe impairment."
(Emphasis added.)
In Stone, we stated that, unless the ALJ or the Council
referred to the Stone standard, we would assume an incorrect
standard had been applied to the severity requirement. Stone, 752
F.2d at 1106. Here, the ALJ followed our lead and cited Stone as
the standard that he was applying. The restrictive language in the
ALJ's conclusion that Toussant had no impairment which "precluded"
him from working, however, is in violation of Stone.
Further, our review of the evidence suggests that the ALJ's
step 2 conclusion is likely not supported by the evidence. The ALJ
considered, and did not discredit, the Snatic report. In his
report, Dr. Snatic described the limiting effect that Toussant's
impairments would have on his ability to work and concluded that:
"Mr. Toussant is probably not able to engage in
activities that require heavy manual labor. His problem
with balance, possible weakness of th[e] left leg and
some sensory loss in the left hand would probably render
him unable to sustain heavy physical effort. He
seems physically able to sustain relatively lighter work,
provided it did not require balancing. Of course, these
sorts of jobs may be completely unavailable to him
because of his lack of experience, training, and
inability to read and write."
We read this portion of the Snatic report as raising a question
under Stone as to whether Toussant's impairments had a "minimal
effect" such that would "not be expected to interfere" with his
ability to work.
Although we acknowledge that this is a close question, we
remand this to the Secretary for reconsideration of the Snatic
report in light of Stone. Cf. Anthony v. Sullivan, 954 F.2d at
295-296 (affirming finding of no severe impairment where close

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question, but no evidence corresponding to that of the Snatic
report here).
In reexamining Dr. Snatic's December 1988 report, the
Secretary should consider whether the head injury sustained by
Toussant in September 1988 (or any other intervening factor)
altered his condition in such a way that the report is not
reflective of his condition as of December 31, 1987.
Conclusion
Although we hold that the ALJ did not abuse its discretion in
refusing to order a psychological examination with I.Q. testing,
and that the Council's dismissal of the independent testing results
was not improper, we remand to the Secretary for a determination of
the severity of Toussant's impairment(s) in accord with our
standard set forth in Stone v. Heckler. We express no opinion as
to whether the Secretary should find that Toussant is or is not
disabled within the meaning of the Act. The judgment of the
district court is REVERSED and the cause is REMANDED to the
district court with directions that it be remanded to the Secretary
for further proceedings consistent herewith.
REVERSED AND REMANDED

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