     Case: 16-10340   Document: 00513686401    Page: 1   Date Filed: 09/21/2016




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                          United States Court of Appeals
                                                                   Fifth Circuit

                                No. 16-10340                     FILED
                              Summary Calendar           September 21, 2016
                                                            Lyle W. Cayce
                                                                 Clerk
PAULA SUE GRAVES,

             Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

             Defendant - Appellee




                Appeal from the United States District Court
                     for the Northern District of Texas


Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.
STEPHEN A. HIGGINSON, Circuit Judge:
      Paula Sue Graves appeals the district court’s affirmance of an agency
decision that she is not disabled, and therefore is not entitled to disability
insurance benefits. Graves argues that the administrative law judge (ALJ)
who reviewed her case erred by failing to ask a testifying vocational expert
whether her testimony was consistent with the Dictionary of Occupational
Titles (DOT), as required by an agency policy interpretation ruling, but
nonetheless relying on that testimony. Finding no reversible error, we affirm.
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                                 No. 16-10340
                                       I.
      In August 2011, Graves filed applications for disability insurance
benefits and supplemental security income payments, alleging that she became
disabled the previous month because of her anxiety, depression, and
intellectual disability.   The Commissioner of Social Security denied those
applications, finding that Graves is not disabled, and adhered to that decision
on Graves’s request for reconsideration. Graves then asked for and received a
hearing before an ALJ, at which she was represented by counsel. During this
hearing, the ALJ questioned a vocational expert, who described certain jobs
appearing in the record and estimated their availability in the national and
Texas economies.
      The ALJ affirmed the Commissioner’s decision in May 2013, finding that
Graves has the residual functional capacity to perform some jobs available in
the national economy so long as she can alternate between sitting and
standing.   After the agency’s Appeals Council denied review of the ALJ’s
decision, Graves sought judicial review. A magistrate judge recommended that
the Commissioner’s decision be affirmed. The district court overruled Graves’s
objections and adopted the magistrate judge’s report and recommendation.
This appeal timely followed.
                                       II.
      Our review of the finding that Graves is not disabled “is limited to
determining whether the decision is supported by substantial evidence in the
record and whether the proper legal standards were used in evaluating the
evidence.” Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994) (quoting Villa
v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990)). We will, however, reverse an
ALJ’s decision “if the claimant shows (1) that the ALJ failed to fulfill his duty
to adequately develop the record, and (2) that the claimant was prejudiced
thereby.” Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996).
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                                  No. 16-10340
      A claimant is not entitled to disability benefits unless she “is unable ‘to
engage in any substantial gainful activity by reason of [a] medically
determinable physical or mental impairment . . . which has lasted or can be
expected to last for a continuous period of not less than 12 months.’” Bowling,
36 F.3d at 435 (alteration and ellipsis in original) (quoting 42 U.S.C. §§ 416(i),
423(d)(1)(A)). The Social Security Administration follows a sequential five-
step process to make this determination:
      (1) a claimant who is working, engaging in a substantial gainful
      activity, will not be found to be disabled no matter what the
      medical findings are; (2) a claimant will not be found to be disabled
      unless he has a “severe impairment”; (3) a claimant whose
      impairment meets or is equivalent to an impairment listed in
      Appendix 1 of the regulations will be considered disabled without
      the need to consider vocational factors; (4) a claimant who is
      capable of performing work that he has done in the past must be
      found “not disabled”; and (5) if the claimant is unable to perform
      his previous work as a result of his impairment, then factors such
      as his age, education, past work experience, and residual
      functional capacity must be considered to determine whether he
      can do other work.
Id.; see also 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The burden of proof is
on the claimant for the first four steps but shifts to the agency at step five; a
finding at any step that a claimant is or is not disabled ends the analysis.
Bowling, 36 F.3d at 435.
      In this case, the ALJ proceeded to step five before determining that
Graves is not disabled. Graves’s sole argument on appeal is that the ALJ failed
to follow Social Security Ruling 00-4p, which provides in relevant part:
      Occupational evidence provided by a VE or VS [vocational expert
      or vocational specialist] generally should be consistent with the
      occupational information supplied by the DOT. When there is an
      apparent unresolved conflict between VE or VS evidence and the
      DOT, the adjudicator must elicit a reasonable explanation for the
      conflict before relying on the VE or VS evidence to support a
      determination or decision about whether the claimant is disabled.
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       At the hearings level, as part of the adjudicator’s duty to fully
       develop the record, the adjudicator will inquire, on the record, as to
       whether or not there is such consistency.
SSR 00-4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (emphasis added). As the
italicized language suggests, an ALJ in a hearing such as Graves’s “has an
affirmative responsibility to ask about ‘any possible conflict’ between VE
evidence and the DOT . . . before relying on VE evidence to support a
determination of not disabled.” Kemp ex rel. Kemp v. Colvin, 743 F.3d 630, 633
(8th Cir. 2014) (footnote omitted); accord, e.g., Lindsley v. Comm’r of Soc. Sec.,
560 F.3d 601, 603 (6th Cir. 2009); Terry v. Astrue, 580 F.3d 471, 478 (7th Cir.
2009).     Here, though the vocational expert cited the DOT in her testimony,
the ALJ did not ask whether her testimony was consistent with the DOT. That
was error.
       Yet “[t]his Court will not reverse the decision of an ALJ for failure to
fully and fairly develop the record unless the claimant shows that he or she
was prejudiced by the ALJ’s failure.” Carey v. Apfel, 230 F.3d 131, 142 (5th
Cir. 2000); 1 see also Jones v. Astrue, 691 F.3d 730, 734–35 (5th Cir. 2012) (“The
party seeking to overturn the Commissioner’s decision has the burden to show
that prejudice resulted from an error.             A mere allegation that additional
beneficial evidence might have been gathered had the error not occurred is
insufficient to meet this burden.” (footnote omitted)); Audler v. Astrue, 501 F.3d
446, 448 (5th Cir. 2007) (“‘Procedural perfection in administrative proceedings
is not required’ as long as ‘the substantial rights of a party have not been



       1 Graves argues at length that Carey was wrongly decided. But “[i]t is a well-settled
Fifth Circuit rule of orderliness that one panel of our court may not overturn another panel’s
decision, absent an intervening change in the law, such as by a statutory amendment, or the
Supreme Court, or our en banc court.” Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375,
378 (5th Cir. 2008). Further, Graves’s appeal fails because she is unable to show prejudice
resulting from the ALJ’s error—a requirement found in other cases within and without this
circuit. See infra note 2.
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                                       No. 16-10340
affected.’” (quoting Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988))).
Graves does not even attempt to show that the vocational expert’s testimony
was actually inconsistent with the DOT. Nor has she otherwise demonstrated
prejudice.    Hence, the ALJ’s procedural error was harmless and does not
warrant reversal. 2
       Graves does not before this court raise any other ground for reversal, and
it appears from our review of the record that the agency decision is supported
by substantial evidence. Accordingly, the judgment is AFFIRMED.




       2  Other circuits also apply harmless-error analysis to this type of procedural error.
See, e.g., Poppa v. Astrue, 569 F.3d 1167, 1174 (10th Cir. 2009) (“Because there were no
conflicts between the VE’s testimony and the DOT’s job descriptions, the ALJ’s error in not
inquiring about potential conflicts was harmless.”); Terry, 580 F.3d at 478 (“Terry is correct
that the ALJ did not ask the VE if his testimony conflicted with the DOT. However, the error
is harmless unless there actually was a conflict.”); Massachi v. Astrue, 486 F.3d 1149,1154
n.19 (9th Cir. 2007) (“This procedural error could have been harmless, were there no conflict,
or if the vocational expert had provided sufficient support for her conclusion so as to justify
any potential conflicts . . . .”); Jackson v. Barnhart, 120 F. App’x 904, 906 (3d Cir. 2005)
(unpublished) (“Where substantial evidence supports the ALJ’s opinion and where the failure
to solicit the testimony contemplated in SSR 00-4P is harmless, this court will not reverse
the ALJ’s decision.”); cf. Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he burden of
showing that an error is harmful normally falls upon the party attacking the agency’s
determination.”).
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