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           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                      No. 14-30830                       United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
MARSHA AVERY,                                                             March 17, 2015
                                                                           Lyle W. Cayce
              Plaintiff - Appellant                                             Clerk

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

              Defendant - Appellee




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                            USDC No. 2:12-CV-01337


Before BARKSDALE, SOUTHWICK, and HIGGINSON, Circuit Judges.
PER CURIAM:*
       Marsha Avery’s application for supplemental Social Security income and
disability benefits was denied by an administrative law judge. The denial was
upheld by the Appeals Council and the district court. Avery then appealed to
this court. 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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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               FACTUAL AND PROCEDURAL BACKGROUND
      Marsha Avery injured her left knee in June 2009, while demonstrating
to her son how to swing a baseball bat. An MRI of her knee revealed tears of
both the medial and the lateral menisci along with other knee problems. Dr.
R. Dale Bernauer, an orthopedic specialist, first prescribed therapy. When
therapy proved insufficient to resolve Avery’s knee weakness and pain, Dr.
Bernauer referred her to a surgeon who operated on her knee in September
2009. At that time, the surgeon thought a second surgery might be needed.
      From February to April 2010, Avery attended a 13-week training
program to become a phlebotomist.           She worked 40 hours a week as a
phlebotomist   from    July   to   September      before     being   terminated    for
insubordination.     In October 2010, Avery underwent another MRI which
revealed problems similar to the diagnosis in 2009, including tears in the
medial and lateral menisci, along with mild chondromalacia (pain in the
kneecap).   Avery was referred to Dr. Nathan Cohen, who recommended
nonoperative conservative treatment and administered a steroid injection.
      In July 2009, Avery filed for Social Security disability and supplemental
security income benefits due to her knee injury. In October 2009, the claim was
denied based on a finding that her condition did not keep her from working.
Avery filed a request for a hearing. One was held before an administrative law
judge (“ALJ”) in December 2010.        Based on Avery’s testimony, the ALJ
determined that an orthopedic consultative examination was needed.                Dr.
Bernauer conducted the exam in January 2011. Dr. Bernauer reported that
Avery complained of left knee pain and walked with a limp, but that her flexion
was 90 degrees. He found that Avery’s knee was stable in some positions, and
that she had full motion in her left hip and ankle. The report also stated that
another surgery was being contemplated. Dr. Bernauer concluded that Avery
could not stand for longer than 10 minutes or walk farther than 100 yards.
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      On February 16, 2011, Dr. Cohen performed surgery on Avery’s knee.
The postoperative diagnosis was a bucket handle tear of the medial meniscus,
a superficial tear of the lateral meniscus, and chondromalacia. On February
18, Avery arrived at a follow-up appointment in a wheelchair and carrying a
walker. Dr. Cohen advised her to “get rid of the wheelchair and her walker”
and to increase her activity level gradually. On February 24, Dr. Cohen again
examined Avery and found she was “getting along extremely well” with “[n]o
complaints,” and though she felt her knee was “slightly weak,” she had “no
pain.” She was found to have “excellent” range of motion and “reasonable gait.”
The medical records from the second surgery were not submitted to the ALJ.
      The ALJ denied Avery’s application for benefits on April 1, 2011. He
thoroughly discussed the evidence and concluded that, while the overall
evidence supported “significant limitations,” it also supported that Avery was
“not restricted from all levels of work activity.” He noted that Avery was able
to go to school and work full-time despite her impairments, 1 and that she did
not stop working due to a medical condition, but, instead, due to termination.
      As to Avery’s “allegations of pain and functional limitations,” the ALJ
concluded they were “not fully credible.” He noted that, although Avery had
initially been directed by a physician to elevate her leg due to swelling, “such
restriction was not continued post surgery.” Further, Avery’s post-surgery
attendance at training and full-time work suggested “the swelling was not a
hindrance to her ability to function.” As to Dr. Bernauer’s report, the ALJ
considered it and assigned it “some but not controlling weight” as the
“claimant’s own admitted functioning since the injury and the surgery was
greater than that opined by Dr. Bernauer.” The ALJ determined that, in light
of the entire record, Avery had the residual functional capacity (“RFC”) to


      1   The impairments were said to be “Disorder of the Left Knee and Obesity.”
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perform light work except that she could only occasionally climb stairs, stoop
or kneel, or perform related tasks.
       After the denial, Avery appealed to the Appeals Council where she
submitted new evidence.          The new evidence consisted of Avery’s medical
records from January 20 to April 14, 2011, including records of her second
surgery and certain therapy records. 2           The Appeals Council denied review,
finding that the additional evidence did not provide a basis for changing the
ALJ’s decision. On judicial review, the district court ruled in favor of the
Commissioner of Social Security. Avery filed a timely appeal.


                                     DISCUSSION
       “Our standard of review of social security disability claims is exceedingly
deferential and limited to two inquiries:              whether substantial evidence
supports the ALJ’s decision, and whether the ALJ applied the proper legal
standards when evaluating the evidence.” Taylor v. Astrue, 706 F.3d 600, 602
(5th Cir. 2012) (citation omitted).
       The Social Security Act definition of disability includes 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). The ALJ uses a five-step
process for evaluating disability under the Act:
       (1) whether the claimant is currently engaged in substantial
       gainful activity (whether the claimant is working); (2) whether the
       claimant has a severe impairment; (3) whether the claimant’s
       impairment meets or equals the severity of an impairment listed


       2In its denial of review, the Appeals Council noted that some of the new evidence was
post-decision and informed Avery that if she wanted the Council to consider whether she was
disabled after April 1, 2011, she would need to apply again.
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       in 20 C.F.R., Part 404, Subpart B, Appendix 1; (4) whether the
       impairment prevents the claimant from doing past relevant work
       (whether the claimant can return to his old job); and (5) whether
       the impairment prevents the claimant from doing any other work.
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (citations omitted). The
claimant bears the burden of proof on the first four steps, but on the fifth step,
the burden shifts to the Commissioner. Id. (citations omitted).
       Avery argues that (1) the ALJ’s decision is not supported by substantial
evidence or free of legal error, and (2) the new evidence submitted to the
Appeals Council would have changed the ALJ’s decision.


I.     Substantial Evidence
       Avery argues that the ALJ’s finding about Avery’s RFC is not supported
by substantial evidence.         Relatedly, she argues that legal error occurred
because the ALJ failed to give Dr. Bernauer’s report controlling weight without
good cause. 3 We examine each argument.
       We are to affirm the Commissioner’s decision unless we conclude that
the ALJ applied the wrong legal standard or that substantial evidence does not
support the ALJ’s decision. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
“Substantial evidence is enough that a reasonable mind would support the
conclusion.” Taylor, 706 F.3d at 602 (citation omitted). “The evidence must be
more than a scintilla, but it need not be a preponderance.” Id. (citation and
quotation marks omitted).           “We will not re-weigh the evidence, try the



       3In her statement of the issue, Avery cites to Ripley v. Chater, 67 F.3d 552 (5th Cir.
1995). There we held that because the record did not clearly establish the effect of Ripley’s
condition on his ability to work, the ALJ’s decision denying benefits was not supported by
substantial evidence. Id. at 557. Because there was no report from a treating physician
regarding Ripley’s ability to work, we remanded and instructed the ALJ to obtain such a
report. Id. at 557-58. We do not have that situation here. Here, the record establishes
Avery’s ability to work. Further, the record contains a medical opinion by Avery’s treating
physician that was considered by the ALJ in rendering his decision.
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questions de novo, or substitute our judgment for the Commissioner’s, even if
we believe the evidence weighs against the Commissioner’s decision.”
Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002) (citation omitted). “A
finding of no substantial evidence is appropriate only if no credible evidentiary
choices or medical findings support the decision.” Boyd, 239 F.3d at 704
(citation omitted).
      The record contains “more than a scintilla” of evidence in support of the
ALJ’s RFC finding. Avery’s own testimony detailed that, post-injury, she was
able to go to school for a new career, and that she worked 40 hours a week for
two months before being terminated for insubordination. Also, Dr. Bernauer’s
report included evidence in support of the ALJ’s decision. It revealed that
Avery’s left knee was stable in some positions; the patella compression sign
was positive; and though she lacked 10 degrees of extension, her flexion was
90 degrees. It also noted that Avery had full motion in her left hip and ankle.
      As to Avery’s testimony regarding pain and functional limitations, the
ALJ found the allegations were “not fully credible.” An ALJ’s decision may be
supported by substantial evidence irrespective of a claimant’s contrary
testimony where the ALJ finds the testimony to be “less than fully credible.”
Masterson, 309 F.3d at 272. To the extent Avery argues the evidence is not
substantial because it is contrary to Dr. Bernauer’s conclusions, the ALJ found
that Avery herself contradicted Dr. Bernauer’s report. In one precedent, we
found an ALJ’s decision that a claimant could perform “medium work” was
supported by substantial evidence notwithstanding a physician’s opinion to the
contrary because the claimant’s own testimony contradicted the physician’s
report. See Watson v. Barnhart, 288 F.3d 212, 216 (5th Cir. 2002).
      Further, we generally uphold an ALJ’s decision denying benefits even if
some findings are suspect so long as the claimant’s “argument does not tend to
undermine the ALJ’s ultimate determination that [the claimant] could perform
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past relevant work.” Shave v. Apfel, 238 F.3d 592, 595 (5th Cir. 2001). The
ALJ determined that Avery was capable of performing past relevant work as a
data entry clerk and cardiac monitor technician. These positions are classified
as “sedentary,” which “involves lifting no more than 10 pounds at a time,”
“sitting, [and] a certain amount of walking and standing . . . .” 20 C.F.R. §
404.1567(a) (“sedentary work”). This classification is less demanding than
“light work.” 20 C.F.R. § 404.1567(b) (“light work”). The same evidence that
supports the ALJ’s RFC finding supports its determination that Avery could
perform past relevant work; therefore, reversal is not warranted.
      Avery also argues that the ALJ should not have used a hypothetical in
his ruling on Step Four, because “vocational factors, age, education and work
experience are used in Step Five hypothetical inquiries, not Step Four.” Even
if that was error, “[p]rocedural 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 quotation
marks omitted). Such procedural errors justify vacating “only if such
improprieties would 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). Here, the ALJ’s alleged improper use of the hypothetical factors does
not cast into doubt the substantial evidence supporting the decision.
      Finally as to the evidence, Avery argues it was error for the ALJ to give
Dr. Bernauer’s report “some but not controlling weight” without good cause.
Although “considerable weight” should usually be given to a treating
physician’s views “in determining disability, the ALJ has sole responsibility for
determining a claimant’s disability status.” Martinez v. Chater, 64 F.3d 172,
176 (5th Cir. 1995) (citation and quotation marks omitted). For good cause, a
fact-finder may afford “less weight, little weight, or even no weight . . . to the
physician’s testimony.” Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994).
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The good cause exception allows an ALJ to discount the treating physician’s
testimony when it is “brief and conclusory, not supported by medically
acceptable clinical laboratory diagnostic techniques, or otherwise unsupported
by the evidence.” Id. (citation omitted).
      Avery argues for the first time in her reply brief that the ALJ did not
simply give Dr. Bernauer’s report insufficient weight; it gave it no weight.
Generally we decline to consider arguments made for the first time in a reply
brief: “An argument first supported in a reply brief comes too late because the
appellee is not entitled thereafter to respond.” Sanders v. Unum Life Ins. Co.
of Am., 553 F.3d 922, 927 (5th Cir. 2008). Avery’s argument, though, was made
in response to an argument in the Commissioner’s brief. We conclude that an
appellant’s rebuttal in its reply brief of an argument made by an appellee in
its brief, even if it alters in some respects the appellant’s earlier position, does
not inject a new argument or issue into the appeal. Rather, the appellee is the
one who injected the matter.
      Though Avery recharacterized the ALJ’s analysis in her reply brief, that
new label does not strengthen the argument. Whether giving “less weight,
little weight, or even no weight,” for good cause the ALJ has wide authority in
considering the treating physician’s opinions. Greenspan, 38 F.3d at 237.
      As previously noted, Avery testified that, post-surgery, she attended
thirteen weeks of training and worked full-time for two months before being
terminated for insubordination. This “admitted functioning” is evidence that
is contrary to Dr. Bernauer’s conclusion that Avery could not stand for longer
than 10 minutes or walk farther than 100 yards.
      Even if the ALJ should have given more weight to Dr. Bernauer’s
conclusions, prejudice must be shown to flow from the error. Brock v. Chater,
84 F.3d 726, 729 (5th Cir. 1996) (citation omitted). The burden is on the
claimant to show that prejudice. Jones v. Astrue, 691 F.3d 730, 734-35 (5th
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Cir. 2012) (citations omitted). Avery has not shown that if the ALJ had given
Dr. Bernauer’s report controlling weight, it would have changed the outcome.
At the very least, the ALJ’s determination that Avery could perform past
relevant work as a data entry clerk or cardiac monitor technician – both
sedentary positions – is consistent with the limitations in Dr. Bernauer’s
report. Because the limitations identified in Dr. Bernauer’s report are not
inconsistent with the ALJ’s finding that Avery could perform past relevant
work, Avery has failed to show that prejudice resulted from the weight the ALJ
gave to Dr. Bernauer’s opinions. See Brock, 84 F.3d at 728-29.
       We have reviewed the record and conclude the ALJ reached a decision
supported by substantial evidence and free of legal error.


II.    Submission of New Evidence
       Avery also argues that the new evidence she submitted to the Appeals
Council undermines the ALJ’s decision. That evidence allegedly revealed her
“need for and her receipt of a second knee surgery, post hearing,” and
“support[ed] Dr. Bernauer’s pre-hearing medical opinion which specifically
established the effects [Avery’s] condition had on [her] ability to work.” If new
evidence is submitted after the Commissioner’s benefits decision and there is
“a reasonable probability that the new evidence would change the outcome of
the decision, a remand is appropriate so that this new evidence can be
considered.” Ripley, 67 F.3d at 555.
       Avery argues that there is a reasonable probability that, had the new
evidence been before the ALJ, it would have ruled differently. We find instead
that the “new” evidence supports the ALJ’s findings about disability. The
evidence shows that, at an appointment eight days after her second surgery,
Avery was “getting along extremely well,” with “[n]o complaints,” and though
her knee felt “slightly weak,” she had “no pain.” The same report notes that
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Avery had an “excellent [range of motion] and reasonable gait.” The pre-
decision physical therapy reports note that less than three weeks after the
second surgery, Avery stated that her knee pain was “slowly decreasing” and
that she was “trying to exercise more each day.” Though Avery often received
ice after her physical therapy sessions to decrease knee swelling, the reports
stated that she “tolerated treatment well” and demonstrated “continued
improvement in strength and stability.” In fact, just two weeks after the
second surgery, Avery reported to the physical therapist that she had “moved
furniture for several hours.”
      As to Avery’s argument that her need for and receipt of a second surgery
would alone have changed the ALJ’s decision, the record reveals the ALJ
already knew that a second surgery was being contemplated. We agree with
the Appeals Council’s determination that the new evidence submitted by Avery
would not have provided a basis for changing the ALJ’s decision.
      AFFIRMED.




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