                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                   IN THE UNITED STATES COURT OF APPEALS
                                                                      January 10, 2006
                            FOR THE FIFTH CIRCUIT
                                                                  Charles R. Fulbruge III
                            ))))))))))))))))))))))))))                    Clerk
                                 No. 05-10740
                               Summary Calendar
                            ))))))))))))))))))))))))))

CHARLES D. HIGGINBOTHAM,

                                                          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. 4:02-CV-0891-BE




Before SMITH, GARZA, AND PRADO, Circuit Judges.

PER CURIAM:*

I.    BACKGROUND

      Plaintiff-Appellant         Charles      Higginbotham      applied       for

Supplemental Social Security Income (“SSI”) benefits on December 9,

1999, claiming that mixed bipolar disorder rendered him disabled.

On   April   19,    2000,   the   Social    Security     Administration    denied

Higginbotham’s application.          Higginbotham then requested, and was


      *
      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this opinion should not be published and is not precedent except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.
granted, a hearing before an Administrative Law Judge (“ALJ”).               The

ALJ denied Higginbotham’s claim for benefits because Appellant could

not sustain a claim of total disability under section 1614(a)(3)(A)

of the Social Security Act (“the Act”).1           Specifically, the ALJ held

that Higginbotham had no “exertional limitations,” but that he did

have “non-exertional limitations” that restricted him to jobs

requiring only short, simple instructions and limited interaction

with other people.

     Appellant timely filed a request for review by the Appeals

Council.     While his request was pending, Appellant, in accordance

with applicable regulations, submitted a medical source statement

completed by Chandrakant Patel, M.D. (“Dr. Patel”), his treating

physician.     Dr. Patel’s evaluation concluded that Higginbotham

suffered   from   a   complete   loss       of   ability   to   perform   regular

employment activity. In a letter dated August 30, 2001, the Appeals

Council denied Higginbotham’s request for review, reasoning that

although it had considered Dr. Patel’s statement, the additional

evidence did not provide a basis for reversing the ALJ’s decision.

     Higginbotham then filed a complaint in the district court,



     1
      Section 1614(a)(3)(A) of the Social Security Act (“the
Act”) is codified at 42 U.S.C. § 1382. It provides that an
individual is considered disabled for purposes of the Act if “he
is unable 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 twelve
months.”

                                        2
seeking review of the Commissioner’s denial of SSI benefits.                    On

October     15,   2003,    the    magistrate    judge   recommended      that   the

Commissioner’s decision be reversed so that the Commissioner could

examine the statement submitted by Dr. Patel.                 The district court,

however,      rejected      the     magistrate       judge’s     recommendation,

specifically declining to consider the new evidence submitted to the

Appeals Council, and affirmed the Commissioner’s denial of SSI

benefits.

      Higginbotham then filed an appeal for review in this Court.

Because we found that the district court erred by not considering

the new evidence submitted to the Appeals Council, we remanded the

case to the district court for further consideration.                 Higginbotham

v. Barnhart, 405 F.3d 332, 337-38 (5th Cir. 2005).

      On     remand,      the    district    court,     again,       affirmed   the

Commissioner’s decision to deny Higginbotham’s claim for benefits,

holding that even after considering Dr. Patel’s statement, there was

still      substantial     evidence    in      the   record     to    support   the

Commissioner’s decision.          Higginbotham then filed this appeal.

II.   STANDARD OF REVIEW

      Our review of the Commissioner’s denial of SSI benefits is

restricted to considering whether the decision is supported by

substantial evidence in the record and whether the proper legal

standards were applied.          See Villa v. Sullivan, 895 F.2d 1019, 1022

(5th Cir. 1990).       “Substantial evidence is more than a scintilla,


                                         3
less than a preponderance, and is such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”

Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).                   In applying

this standard, while we must review the entire record to determine

if such evidence is present, “we may neither reweigh the evidence

in the record nor substitute our judgment for the Secretary’s.”

Villa v. Sullivan, 895 F.2d 1019, 1022 (quoting Hollis v. Bowen, 837

F.2d 1378, 1383 (5th Cir. 1988))(citations omitted).

III. DISCUSSION

      Higginbotham argues that we should either remand the case to

the   Commissioner    for    further   consideration        of   the    additional

evidence, or that we should find that, in light of Dr. Patel’s

statement,    the    Commissioner’s         decision   to    deny      Appellant’s

application    for   SSI    benefits   is    not   supported     by    substantial

evidence.    Because we determine that the Commissioner’s decision to

deny Appellant’s application for SSI benefits is supported by

substantial evidence in the record, we affirm.

      First, Appellant argues that because appeals of social security

cases are usually disposed of by way of summary judgment, we should

adopt a modified summary judgment standard in order to avoid

weighing the evidence.2 According to Appellant, that standard would




      2
      In this case, the magistrate judge issued an order
directing the parties to file briefs instead of cross-motions for
summary judgment.

                                       4
require   us   to    remand   the   case     to   the   Commissioner.3     Under

Appellant’s proposed standard, the Commissioner, as movant for

summary judgment, must first establish that substantial evidence

supports the ALJ’s decision.            Next, Higginbotham, as non-movant,

must present evidence that contradicts the substantial evidence

contention     or   demonstrates    a    genuine   issue   of   material   fact.

Appellant maintains that, in accordance with a summary judgment

policy of resolving all inferences in favor of the non-movant, Dr.

Patel’s statement should be given presumptive weight, and thus

establishes     a   genuine   issue     of   material   fact.    Consequently,

Appellant contends, the case should be remanded to the Commissioner

for further review.      Appellant’s argument that the case should be

remanded to the Commissioner for further consideration of Dr.

Patel’s statement based on a modified summary judgment standard is

unpersuasive and finds no support in case law.

     If additional evidence is presented while the case is pending

review by the Appeals Council, courts of appeals customarily review

the record as a whole, including the new evidence, in order to

determine whether the Commissioner’s findings are still supported

by substantial evidence.       See Wilkins v. Sec’y, Dep’t of Health and


     3
      It is important to note that Appellant does not argue that,
pursuant to 42 U.S.C. § 405(g), additional evidence should be
presented to the Commissioner based on “a showing that there is
new evidence which is material and that there is good cause for
the failure to incorporate such evidence into the record in a
prior proceeding.” 42 U.S.C. § 405(g). To that end, Appelllant
fails to make the requisite showing.

                                         5
Human Serv., 953 F.2d 93, 96 (4th Cir. 1991); Nelson v. Sullivan,

966 F.2d 363, 366 (8th Cir. 1992); see also Barnhart, 405 F.3d at

337-38 (directing the district court to consider the newly submitted

evidence in its review of the Commissioner’s decision).

     Additionally,       allowing    these     types    of    proceedings          to   be

reopened and remanded in the manner espoused by the Appellant would

create   improper    incentives      for    attorneys    and      litigants.            By

remanding    cases   without      meaningful    regard       to   the   substantial

evidence standard, we would be encouraging attorneys to hold back

some of their evidence in hopes of seeking reconsideration if

proceedings are not initially successful for their clients.                             By

remanding this case to the Commissioner, we would be, in part,

abandoning the substantial evidence doctrine, while also creating

a procedure at odds with the goal of orderly and speedy disposition

of claims.

     Considering     all    of    the   evidence,      including        Dr.    Patel’s

statement,   we   find     that   the   Commissioner’s        decision        is   still

supported by substantial evidence.           While the Appellant is correct

in noting that we have long held that the “opinions, diagnoses, and

medical evidence of a treating physician who is familiar with the

claimant's injuries, treatments, and responses should be accorded

considerable weight in determining disability,” Scott v. Heckler,

770 F.2d 482, 485 (5th Cir. 1985), Dr. Patel’s conclusory statement

diagnosing Appellant as disabled did not contain supporting medical


                                        6
evidence or any support otherwise, and therefore does not begin to

overcome the substantial evidence supporting the ALJ’s decision.

       The ALJ noted that outpatient clinic records from Tarrant

County Mental Health & Mental Retardation clinic indicate that

Appellant    consistently      took     his       medication    which     adequately

controlled   and     stabilized      his        condition.     Hence,    medication

effectively inhibits Higginbotham’s mood swings, depression, and

emotional outburst with no reported side-effects.                       The Tarrant

County   records    also    convey    that       Appellant    was   usually   alert,

talkative, coherent, and properly groomed. Higginbotham also denied

experiencing any auditory or visual hallucinations. The record also

demonstrates    that       while   Appellant’s         moderate     difficulty   in

maintaining social functioning has seldom affected his concentration

and pace of performance, it has never resulted in a significant

disruption in a work-like setting.                Moreover, the ALJ stated that

Appellant’s testimony at his hearing was “articulate and coherent.”

Finally, an impartial vocational expert testified that an individual

with   Appellant’s     abilities      and       limitations    could    successfully

perform duties consistent with Higginbotham’s past work experience.

Hence, Dr. Patel’s statement does not dilute the record to the point

that the ALJ’s ultimate finding is insufficiently supported.

IV.    CONCLUSION

       Because we conclude that the Commissioner’s decision denying

Higginbotham benefits is supported by substantial evidence in the

record as a whole, including Dr. Patel’s statement, we AFFIRM that

                                            7
decision.




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