     Case: 15-30339      Document: 00513304829        Page: 1     Date Filed: 12/11/2015




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                   No. 15-30339                         United States Court of Appeals
                                 Summary Calendar                                Fifth Circuit

                                                                               FILED
                                                                       December 11, 2015
MEGAN A. DISE,                                                            Lyle W. Cayce
                                                                               Clerk
              Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                            U.S.D.C. 2:12-cv-02341-PM


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM:*
      Megan Dise appeals the denial of her application for supplemental
security income benefits based on disability. Because the Commissioner’s
decision was based on substantial evidence and the proper legal standards, we
AFFIRM.




*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 R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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                                 No. 15-30339
                            I.    BACKGROUND
      Dise began receiving supplemental security income benefits based on
disability as a child. When she turned eighteen on June 1, 2009, the Social
Security Administration re-determined her eligibility under the rules for
evaluating disability in adults and found that she was no longer disabled. Dise
then presented her claims before an administrative law judge (ALJ) at a
hearing on March 24, 2011, and at a supplemental hearing on August 3, 2011.
      Following these hearings, the ALJ found that Dise was not disabled
under the Social Security Act because, “considering [her] age, education, work
experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can perform.”
Her subsequent request for appellate review was denied.
      Having exhausted her administrative remedies, Dise filed suit in federal
district court for review of the Commissioner’s decision. The district court
affirmed the ALJ’s decision and dismissed Dise’s case with prejudice. She now
appeals.
                      II.    STANDARD OF REVIEW
      “Our review of Social Security disability cases is limited to two inquiries:
(1) whether the decision is supported by substantial evidence on the record as
a whole, and (2) whether the Commissioner applied the proper legal standard.”
Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014) (citation and internal
quotation marks omitted). Substantial evidence is more than a mere scintilla,
less than a preponderance, and is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Perez v. Barnhart, 415 F.3d
457, 461 (5th Cir. 2005) (citation and internal quotation marks omitted). In
applying this standard, we “may not reweigh the evidence or substitute [our]
judgment for the Commissioner’s.” Id. (internal citation omitted).


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                                      No. 15-30339
                               III.    DISCUSSION
        The ALJ evaluates disability claims under the Social Security Act
through a sequential five-step process: (1) whether the claimant is currently
working; (2) whether the claimed impairment can be classified as severe; (3)
whether the impairment meets or equals an impairment in 20 C.F.R. Part 404,
Subpart P, Appendix 1; (4) whether the claimant can perform her past relevant
work; and (5) whether the claimant can perform other substantial gainful
activities. See Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). The
claimant bears the burden of proof on the first four steps, but on the fifth step,
the burden shifts to the Commissioner. Perez, 415 F.3d at 461.
        Dise makes the following arguments on appeal: (1) the ALJ erred at step
two by not acknowledging her diagnosis for depression; (2) the ALJ’s error at
step two created error at step three because the ALJ omitted her depression
impairment from the analysis; (3) the ALJ erred in determining her residual
functional capacity; (4) the ALJ erred at step five by asking the vocational
expert a defective hypothetical question; and (5) the ALJ improperly applied
the Medical-Vocational Guidelines at step five. We address each contention in
turn.
                                           A.
        At step two in the analysis, the ALJ found that Dise suffers from a severe
mental impairment—Oppositional Defiant Disorder (ODD). The ALJ then
proceeded to steps three, four, and five. Dise argues that the medical evidence
supports the presence of an additional medically determinable impairment—
depression—and the ALJ erred in failing to apply the non-severity standard
from Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), to that impairment. The
Commissioner argues that, because the ALJ proceeded to step five of the
analysis, any failure to find an additional impairment severe at step two does
not justify remand. We agree.
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                                       No. 15-30339
       This case does not present the error found in Stone because Dise’s
request for benefits was not denied based on an improper determination of
“non-severity” at step two. The ALJ specifically cited the Stone standard in
finding that Dise’s ODD constitutes a severe impairment. The remainder of
the opinion clearly reflects that the ALJ considered all of Dise’s claimed
impairments (including depression) in his assessment of Dise’s disability, even
though he only mentioned ODD at step two. In short, “this case did not turn
on whether or not [Dise’s depression] impairment was severe,” but on
subsequent steps in the analysis—“an inquiry unaffected by the test set forth
in Stone.” See Chaparro v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987). Thus,
Dise’s Stone argument “is irrelevant to the disposition of [her] case.” Id.; see
also Shipley v. Sec’y of Health & Human Servs., 812 F.2d 934, 935 (5th Cir.
1987).
                                              B.
       At step three in the analysis, the ALJ concluded that the severity of
Dise’s mental impairment does not “meet or medically equal the criteria of
listing 12.08” in 20 C.F.R. Part 404, Subpart P, Appendix 1. Dise argues that
the ALJ erred by not also evaluating Dise’s depression under listing 12.04. 1
The Commissioner argues that any error by the ALJ in not discussing listing
12.04 was harmless. Again, we agree.
       Dise’s argument relies heavily on a report issued by Dr. Boulos, a state
agency medical consultant. As part of that report, Dr. Boulos completed a
Psychiatric Review Technique form; on that form Dr. Boulos identifies
“Affective Disorders” under listing 12.04 and “Personality Disorders” under



1Dise did not raise her step three argument before the district court, and therefore she cannot
assert it now for the first time on appeal. See Chaparro, 815 F.2d at 1011. Regardless, her
argument fails for the reasons explained herein.

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                                  No. 15-30339
listing 12.08 as bases for his medical disposition conclusion. The ALJ’s opinion
evaluates Dise’s entitlement under listing 12.08 at step three, but never
mentions listing 12.04.
      However, any error in failing to specifically address listing 12.04 at step
three was harmless. “Procedural perfection in administrative proceedings is
not required as long as the substantial rights of a party have not been affected.”
Audler v. Astrue, 501 F.3d 446, 448 (5th Cir. 2007) (citation and internal
quotation marks omitted). Furthermore, procedural improprieties constitute
a basis for remand only when the improprieties cast into doubt the existence
of substantial evidence to support the ALJ’s decision. Morris v. Bowen, 864
F.2d 333, 335 (5th Cir. 1988). Dise’s substantial rights have not been affected
here. To qualify under listing 12.04, the regulations require “marked” or
“repeated” limitations in two of the four areas identified in paragraph B.
However, the very report on which Dise relies—Dr. Boulos’s evaluation—
specifically states that Dise does not meet the degree of limitation required for
any of the four paragraph B areas. Further, the ALJ explicitly relied on Dr.
Boulos’s report, and his decision as to listing 12.08 was based on the very same
form. Thus, the ALJ committed no error warranting remand at step three.
                                       C.
      The ALJ determined that Dise has “the residual functional capacity to
perform a full range of work at all exertional levels but with the following
nonexertional limitation[]: she must avoid concentrated interaction with the
general public, coworkers, and supervisors.” Dise claims that this finding is
erroneous because the ALJ failed to consider all of Dise’s mental impairments
and ignored relevant expert evidence. We disagree.
      The ALJ is responsible for determining an applicant’s residual functional
capacity. See 20 C.F.R. § 404.1546(c). Here, the ALJ carefully summarized
and considered the relevant testimony and medical reports (including evidence
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                                          No. 15-30339
of depression and general anxiety disorder) and explained how he weighed the
evidence. In doing so, the ALJ accorded substantial weight to the state agency
medical consultants, Drs. Boulos, Kahler, and Haag. In the section entitled
“Functional Capacity Assessment,” Dr. Boulos’s report concluded that Dise
“retains the abilities to understand, remember & carry out simple instructions;
make decisions; attend & concentrate for extended periods; to appropriately
interact with coworkers & supervisors & adapt to routine changes in work
setting.” Dr. Kahler reviewed Dr. Boulos’s report and affirmed its findings.
Dr. Haag concluded that Dise’s memory and concentration were not impaired,
that her cognitive function was average, that she could follow simple
instructions, and that she is capable of managing her finances. He further
noted that “[i]n a typical work setting I would expect her to be significantly
impaired in social functioning only and would need to find employment that
minimized her interactions with others.”
          The ALJ also properly explained that it accorded no weight to other
reports because they were either based solely on subjective complaints by Dise,
rendered by an unqualified counselor, or were otherwise unsupported by the
evidence. 2       ALJs may accord less weight, or no weight, to a physician’s
testimony for good cause; good cause includes disregarding statements that are
brief and conclusory or otherwise unsupported by the evidence. See Greenspan
v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).
          Although the credited medical evidence matches the ALJ’s final residual
functional capacity conclusion, Dise raises two primary objections. First, she
emphasizes Dr. Haag’s finding that she is “significantly impaired” in social
functioning and claims that the ALJ disregarded this opinion. However, the
ALJ did not ignore this evidence; he explicitly identified it in his conclusion.


2   On appeal, Dise does not take issue with the ALJ’s decision to afford this evidence no weight.
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                                   No. 15-30339
Second, she argues that the ALJ failed to account for her depression diagnosis.
But, as she concedes, the ALJ was only required at step four to determine the
effects that impairments have on a claimant’s ability to work, see Ripley, 67
F.3d at 557; Dise’s depression diagnosis is not, itself, a functional limitation.
      Thus, the ALJ appropriately considered and weighed the medical
evidence and other testimony and came to a residual functional capacity
conclusion that was supported by substantial evidence.
                                        D.
      At step five in his analysis, the ALJ posed the following hypothetical
question to a vocational expert:
      I’d like you to assume a younger individual with the same
      educational background and no work history as [Dise] has. If I were
      to find that individual had no exertional limitations and had the
      following non-exertional limitations; the individual is able to
      understand, remember, and carry out simple instructions; make
      decisions, attend and concentrate for extended periods; and must
      avoid concentrated exposure to co-workers and supervisors and the
      general public. With those limitations, could you identify any
      occupations such an individual could perform?

      Dise claims that this hypothetical question is defective because (1) it fails
to account for her ODD and depression diagnoses and (2) it erroneously used
the term “concentrated exposure” to describe her mental impairment
limitations.
      First, the ALJ’s hypothetical question properly accounted for Dise’s
impairments. A hypothetical posed to a vocational expert by an ALJ need only
“reasonably incorporate” the disabilities and limitations recognized by the
ALJ. Bowling v. Shalala, 36 F.3d 431, 435–36 (5th Cir. 1994). The ALJ’s
question here tracked his residual functional capacity assessment.              As




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                                      No. 15-30339
previously discussed, that assessment was supported by substantial evidence. 3
Second, the term “concentrated exposure” was not ambiguous, and any issues
with the terminology were resolved when the ALJ clarified that he meant that
“interaction” with others must be avoided. Thus, we find no reversible error. 4
                                            E.
       Finally, Dise argues that the ALJ erred in relying solely on grid rule
204.00 in his step five analysis. However, a review of the ALJ’s opinion clearly
demonstrates that he relied on both the grid rule and the testimony of the
vocational expert.      Indeed, the ALJ stated the following in his step five
analysis: “[b]ased on the testimony of the vocational expert, the undersigned
concludes that, since June 1, 2009, considering the claimant’s age, education,
work experience, and residual functional capacity, the claimant is capable of
making successful adjustment to other work that exists in significant numbers
in the economy.” This was proper because, as Dise concedes, we uphold fifth
step determinations that are supported by testimony of a vocational expert and
use the grid rules as a framework. See Vaughan v. Shalala, 58 F.3d 129, 131–
32 (5th Cir. 1995) (upholding a finding that the claimant was not disabled
where the ALJ used the guidelines, but also expressly relied upon the
vocational expert's testimony in his findings); see also Carey v. Apfel, 230 F.3d
131, 147 (5th Cir. 2000); Snell v. Chater, 68 F.3d 466 (5th Cir. 1995).
                                IV.    CONCLUSION
       For the foregoing reasons, we AFFIRM.




3 In fact, the hypothetical question posed to the vocational expert was very similar to the
exact language used by Drs. Boulos and Haag in their functional capacity conclusions.
4 In addition, Dise’s non-attorney representative was given the opportunity to examine the

vocational expert; “that is, [Dise] could have corrected any errors in the hypotheticals, or
added additional disabilities, during the hearing.” Vaught v. Astrue, 271 F. App’x 452, 456
(5th Cir. 2008).

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