                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS         March 29, 2007
                        FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                        ))))))))))))))))))))))))))               Clerk

                              No. 06-30735

                        ))))))))))))))))))))))))))

LINDA M. JONES,

                  Plaintiff-Appellant,

     v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

                  Defendant-Appellee.


           Appeal from the United States District Court
               for the Western District of Louisiana
                          No. 6:05-CV-454



Before DeMOSS, STEWART, and PRADO, Circuit Judges.

Per Curiam:*

     Plaintiff-Appellant Linda M. Jones (“Jones”) appeals from a

district court decision upholding the Commissioner of Social

Security’s (the “Commissioner”) denial of Jones’s claim for

disability benefits under the Social Security Act. For the

reasons that follow, we affirm the judgment of the district

court.


     *
       Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.

                                    1
               I. FACTUAL AND PROCEDURAL BACKGROUND

     On April 16, 2003, Jones filed an application for

supplemental security income benefits. Jones claimed a disability

beginning May 1, 1999, due to anxiety, depression, stomach ulcer,

back problems, weakness, headaches, drowsiness, and pain. Her

application was denied upon initial determination, and Jones

requested a hearing before an administrative law judge (“ALJ”). A

hearing was held on June 16, 2003, and on July 24, 2003, the ALJ

issued an unfavorable decision. Jones then filed a request for

review by the Appeals Council. The Appeals Council determined

that the ALJ had erred by relying upon the Medical Vocational

Guidelines (“Grids”), and that Jones’s non-exertional limitations

required the use of vocational expert testimony to determine if

there were jobs existing in the national economy that Jones could

perform.   The Appeals Council therefore remanded the case to the

ALJ with instructions that the ALJ obtain evidence from a

vocational expert.

     The ALJ held a new hearing on February 11, 2004, at which a

vocational expert gave testimony. Following this hearing, the ALJ

issued a decision on August 26, 2004, again denying Jones’s

claim. Jones filed a new request for review with the Appeals

Council. The Appeals Council considered the ALJ’s decision, as

well as new evidence submitted by Jones too late for the ALJ to

consider. This evidence consisted of a psychological examination



                                 2
report by Dr. David E. Greenway. On December 2, 2004, the Appeals

Council denied Jones’s request and stated that the new evidence

provided by Jones created no basis for altering or amending the

ALJ’s decision.

     Jones appealed to the United States District Court for the

Western District of Louisiana. Jones argued that (1) the ALJ

erred in positing a defective hypothetical question to the

vocational expert; (2) the ALJ improperly applied the Grids to

deny benefits; and (3) the ALJ failed to fully and fairly develop

the facts. Jones’s appeal was referred to a magistrate judge, who

issued a report and recommendation on April 18, 2006. The

magistrate found that there was substantial evidence in the

record to support the Commissioner’s decision of non-disability

and that the Commissioner’s decision comported with all relevant

legal standards. Specifically, the magistrate concluded that the

ALJ incorporated the appropriate limitations into his

hypothetical question and that Jones’s counsel had the

opportunity to correct any defects in the hypothetical question.

Second, the magistrate found that the ALJ had not relied on the

Grids, but rather on the testimony of the vocational expert, in

concluding that jobs existed in significant numbers that Jones

could perform. Finally, the magistrate concluded that there was

no failure by the ALJ to develop adequately the record regarding

Jones’s alleged mental retardation because the report by Dr.

Greenway was not in conflict with prior evaluations indicating

                                3
that Jones had low average intelligence. The magistrate noted

that the Appeals Council had concluded that the Greenway report

was not a basis for changing the ALJ’s decision, and stated that

“[t]he undersigned agrees that the additional evidence would not

have led to a different decision by the ALJ.” The district court

adopted the findings and conclusions of the magistrate’s report

and affirmed the decision of the Commissioner. This appeal by

Jones followed.

             II. JURISDICTION AND STANDARD OF REVIEW

     This court has jurisdiction pursuant to 28 U.S.C. § 1291.

Judicial review of the Commissioner’s decision to deny benefits

is limited to determining whether (1) the final decision is

supported by substantial evidence and (2) the Commissioner used

the proper legal standards in evaluating the evidence. Newton v.

Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Substantial evidence is

such relevant evidence as a reasonable mind might accept to

support a conclusion. Ripley v. Chater, 67 F.3d 552, 555 (5th

Cir. 1995). It is more than a scintilla and less than a

preponderance. Id.   This court may not re-weigh the evidence in

the record or substitute our judgment for that of the

Commissioner. Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000).

                          III. DISCUSSION

     To be entitled to social security disability benefits, a

claimant must show an “inability to engage in any substantial


                                 4
gainful activity by reason of any 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.” 42

U.S.C. § 423(d)(1)(A). To evaluate a claim of disability, the ALJ

follows a five-step sequential process, the first four steps of

which place the burden on the claimant. Muse v. Sullivan, 925

F.2d 785, 789 (5th Cir. 1991). The five steps are:

   (1) A claimant who is working and engaging in substantial
   gainful activity will not be found disabled regardless of
   medical findings.
   (2) A claimant who does not have a “severe impairment” will
   not be found to be disabled.
   (3) A claimant who meets or equals an impairment listed in
   20 C.F.R. pt. 404, subpt. P, app. 1 will be considered
   disabled without the consideration of vocational factors.
   (4) If the claimant is capable of performing the work he or
   she has done in the past, that claimant is “not disabled.”
   (5) If the impairment precludes the claimant from
   performing his or her past work, other factors including
   age, education, past work experience, and residual
   functional capacity must be considered to determine if the
   claimant can perform other work.

Boyd v. Apfel, 239 F.3d 698, 704-05 (5th Cir. 2001); see also 20

C.F.R. § 404.1520. If the inquiry reaches the fifth step, the

burden is on the Commissioner to show that the claimant can

perform work existing in the national economy. Newton, 209 F.3d

at 453. If the Commissioner makes this showing, the burden shifts

back to the claimant to prove that he or she cannot perform the

work suggested. Muse, 925 F.2d at 789.

     In this case, the ALJ determined that the work that Jones

had performed within the relevant time period was of insufficient

duration to qualify as past relevant work. The ALJ also

                                5
determined that Jones had non-exertional impairments that

qualified as “severe,” but that did not equal an impairment

listed in 20 C.F.R. pt. 404, subpt. P, app. 1. Because of these

findings, the ALJ’s inquiry reached step five, at which point,

after remand by the Appeals Council, the ALJ heard testimony from

a vocational expert. The ALJ concluded that there were jobs

existing in significant numbers in the national economy that

Jones could perform. As explained above, the Appeals Council

affirmed the ALJ’s decision.

     Jones presents three issues for review: (1) whether the

district court applied an improper remand standard in declining to

remand Jones’s case to the Commissioner; (2) whether Jones’s new

evidence “meets the requirements of 42 U.S.C. § 405(g), sentence

six, or 20 C.F.R. § 416.1476(b)(1)” and therefore requires remand;

and (3) whether the ALJ erred as a matter of law by positing a

defective hypothetical question to the vocational expert.

A.   The District Court Did Not Apply an Improper Remand Standard

     Jones claims that the district court used the wrong standard

for remand when it adopted the magistrate’s report stating that

“[t]he undersigned agrees [with the Appeals Council] that the

additional evidence would not have led to a different decision by

the ALJ.” Jones argues that the correct remand standard under 42

U.S.C. § 405(g) is whether there exists a “reasonable

possibility” that the new evidence would have changed the outcome



                                6
of the Commissioner’s determination.

     Jones is correct that whether there is a “reasonable

possibility” that new evidence would have changed the outcome of

the Commissioner’s decision is the test that this circuit employs

to determine whether new evidence is “material” within the

meaning of § 405(g). Section 405(g) applies, however, where the

claimant presents new evidence to the district court that was not

reviewed by the Commissioner and thus was not made part of the

record.1 In this case, Jones presented no new evidence to the

district court. She did provide new evidence, the Greenway

report, to the Appeals Council, and the Appeals Council addressed

that evidence, specifically stating that “this information does

not provide a basis for changing the Administrative Law Judge’s

decision.” In Higginbotham v. Barnhart, 405 F.3d 332, 334 (5th

Cir. 2005), this court held that the Commissioner’s final

decision includes the Appeals Council’s denial of a claimant’s

request for review, and that new evidence submitted to the

Appeals Council becomes part of the administrative record. It



     1
      The relevant passage reads as follows: “The court may, on
motion of the Commissioner of Social Security made for good cause
shown before the Commissioner files the Commissioner’s answer,
remand the case to the Commissioner of Social Security for
further action by the Commissioner of Social Security, and it may
at any time order additional evidence to be taken before the
Commissioner of Social Security, but only upon 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).

                                7
follows, therefore, that the test set forth in § 405(g) for

whether evidence newly submitted to the district court requires

remand to the Commissioner has no application to this case. In

the statement Jones objects to, the magistrate was not applying a

standard for remand based on new evidence but rather was

affirming the Appeals Council’s assessment of evidence in the

record. Jones’s argument has no merit.

     Jones raises several additional arguments, unrelated to the

remand standard, in this section. Jones argues that the district

court should have remanded the case because the Appeals Council

did not explain the weight that it gave to Jones’s new evidence.

In Higginbotham, however, we determined that such an explanation

was not required. 405 F.3d at 335 n.1. Moreover, Jones’s new

evidence did not so contradict earlier evidence that a

“weighing” of new and old evidence would be required. Dr.

Greenway stated that Shipley testing produced an IQ score in the

mildly mentally retarded range. Dr. Greenway also stated,

however, that Jones’s “[i]nterviewing suggests somewhat higher

adaptive skills” and that therefore “[s]he might more

appropriately be considered borderline intellectual

functioning.” Dr. Greenway’s report was therefore not

inconsistent with two earlier psychological evaluations stating

that Jones had “low average intelligence.”

     Jones also argues that the district court erred by



                                8
resolving a conflict in the evidence, that is, the conflict as

to whether Jones was mildly mentally retarded or had borderline

intellectual functioning. Jones cites Fifth Circuit caselaw for

the proposition that conflicts in the evidence should be

resolved by the Commissioner. The “conflict” in question,

however, was resolved first by Dr. Greenway, who stated

“borderline intellectual functioning” as his diagnosis, and

secondarily by the Appeals Council, which decided that the

Greenway report did not provide a basis for overturning the

ALJ’s decision. The district court properly deferred to the

Commissioner’s fact-finding.

     Additionally, Jones argues that the district court could

not conduct a full review of the evidence because the record did

not contain Jones’s IQ scores. Jones cites Baker v. Bowen, 839

F.2d 1075, 1082 (5th Cir. 1988), where this court criticized the

Appeals Council for issuing a decision without reviewing a piece

of missing evidence. In that case, however, the missing

evidence-–the recording of the claimant’s administrative

hearing-–was a part of the administrative record. Jones’s IQ

scores were not part of the record, and so Baker is inapplicable

here. Jones further argues that the Appeals Council should have

recontacted Dr. Greenway to obtain the IQ scores because the

record was insufficient to permit a determination regarding

whether Jones was disabled. As explained above, however, Dr.



                                9
Greenway’s report did not contradict two earlier psychological

evaluations that addressed Jones’s impairments. These multiple

reports provided a sufficient basis for determining the extent

of Jones’s limitations.2

B.    The District Court Did Not Err by Declining to Remand the
      Case

      Jones argues that the district court should have remanded

her case “pursuant to 42 U.S.C. § 405(g), sentence six, or 20

C.F.R. § 416.1476(b)(1).” Neither of these provisions

accomplishes what Jones would like it to. 20 C.F.R.

§ 416.1476(b)(1) reads as follows:

     In reviewing decisions based on an application for
     benefits, the Appeals Council will consider the evidence in
     the administrative law judge hearing record and any new and
     material evidence only if it relates to the period on or
     before the date of the administrative law judge hearing
     decision. If you submit evidence which does not relate to
     the period on or before the date of the administrative law
     judge hearing decision, the Appeals Council will return the
     additional evidence to you with an explanation as to why it
     did not accept the additional evidence and will advise you
     of your right to file a new application. . . .

Here, the Appeals Council abided by 20 C.F.R. § 416.1476(b)(1) by


      2
      This section also includes further unrelated arguments by
Jones. Jones suggests that the ALJ erred by failing to include
“somatoform disorder” as a severe impairment. Jones also appears
to argue that Dr. Greenway’s conclusion that Jones was
“functionally illiterate” placed the finding that Jones had a
“limited education” in jeopardy. We hold that these arguments are
waived for failure to brief adequately. See Robinson v. Guar.
Trust Life Ins. Co., 389 F.3d 475, 481 n.3 (5th Cir. 2004). Jones
also suggests that the ALJ erred by relying on Grid Rule 204.00.
The district court found, and we agree, that the ALJ relied on
vocational expert testimony, and not on the Grids, in making his
step five assessment.

                                 10
considering Jones’s new evidence, which related to the period

before the ALJ decision. It is not clear why Jones believes this

provision compels the district court to remand her case.

Elsewhere in her brief, Jones argues that by not returning

Jones’s evidence, the Appeals Council conceded that the evidence

was “material.” It is clear from its plain language, however,

that 20 C.F.R. 416.1476(b)(1) only requires return of the

evidence when it does not relate to the proper time period.

     Section 405(g), as explained above, states the circumstances

in which new evidence submitted to the district court warrants

remand to the Commissioner. In this case, there was no evidence

submitted to the district court that was not part of the existing

record. Accordingly, there is no cause for remand on the basis of

new evidence.

C.   The ALJ’s Defective Hypothetical Question Does Not Require
     Reversal

     This court has held that the hypothetical question posed to

the vocational expert by the ALJ must “incorporate reasonably all

disabilities of the claimant recognized by the ALJ.” Bowling v.

Shalala, 36 F.3d 431, 436 (5th Cir. 1994). Jones argues that the

hypothetical question the ALJ posed to the vocational expert was

defective because it did not include all of the impairments

recognized by the ALJ. The Appellee concedes that “the ALJ’s

hypothetical question to the vocational expert was arguably

inadequate,” but argues that “Ms. Jones’s representative cured

                               11
any error on the part of the ALJ at step five by posing what both

parties agree was an adequate hypothetical question to the

vocational expert.” The Appellee notes that this court in Bowling

stated that “a determination of non-disability based on [] a

defective question cannot stand,” unless “the claimant or his

representative is afforded the opportunity to correct

deficiencies in the ALJ’s question by mentioning or suggesting to

the vocational expert any purported defects in the hypothetical

questions (including additional disabilities not recognized by

the ALJ’s findings and disabilities recognized but omitted from

the question).” Id.

     In this case, the ALJ recognized that Jones possessed the

following impairments: moderate limitations in her daily living

activities; mild limitations in maintaining social functioning;

moderate limitations in maintaining concentration, persistence and

pace; and moderate limitations in ability to understand, remember,

and carry out detailed instructions. The ALJ found that Jones would

have difficulty accepting instructions and responding appropriately

to supervisors and would have difficulty with changes in work

setting and with making plans independently of others. In his

hypothetical question to the vocational expert, however, the ALJ

specified only “moderately restricted daily activities, mildly

restricted social functioning and mildly restricted difficulties in

maintaining concentration, persistence, or pace.” This question



                                12
recasts Jones’s recognized “moderate” restrictions in maintaining

concentration,     persistence,    and    pace     as    less-severe     “mild”

restrictions. It also omits the ALJ’s findings that Jones would

have difficulty with understanding and carrying out instructions

and responding appropriately to supervisors and with changes in

work setting and making plans independently. In response to this

question, and incorporating Jones’s tenth grade education, the

vocational expert concluded that Jones could obtain work as a hand

packer or packager, freight, stock and material handler, or stock

handler and bagger, jobs existing in the hundreds of thousands in

the United States.

      Jones’s attorney at the hearing then asked a hypothetical

question that incorporated “moderate limitations of ability to take

criticism, ability to remember and carry out detailed instructions”

as   well   as   moderate   limitations   in     the    “ability   to   respond

appropriately to changes in the work setting and the ability to

meet realistic goals in the work place.” The vocational expert

responded that the addition of these limitations “would not effect

[sic] the numbers,” that is, the numbers of jobs he had previously

stated Jones could perform.

      It is clear from the above recitation that the ALJ’s question

was defective in that it omitted several recognized impairments.

Jones’s counsel’s question, on the other hand, came much closer to

encompassing the range of impairments the ALJ had recognized.



                                    13
Appellee argues, relying on Bowling, that Jones’s counsel’s proper

question    cured   the   defect       in    the   ALJ’s    question.     But   logic

prescribes that counsel’s question can compensate for the ALJ’s

defective    question     only      when    the    ALJ,    in   making    his   final

determination,      relies     on    the     vocational     expert’s      answer    to

counsel’s question and not on the answer to the ALJ’s own defective

question.

     It is not clear from the ALJ’s written opinion whether the ALJ

relied on the answer to his question or to Jones’s counsel’s

question. In his opinion, the ALJ appears to adopt counsel’s

hypothetical question as his own question. In this case, however,

it is ultimately irrelevant whether the ALJ relied on the answer to

his question or to Jones’s counsel’s question, because the two

answers were the same.       Even if the ALJ relied on the answer to his

own defective question, Jones was not prejudiced, because the

vocational    expert    gave     the   same       answer   to   Jones’s   counsel’s

question. “Procedural perfection in administrative proceedings is

not required. This court will not vacate a judgment unless the

substantial rights of a party have been affected.” Mays v. Bowen,

837 F.2d 1362, 1364 (5th Cir. 1988).

                                 IV. CONCLUSION

     For the reasons stated above, we affirm the judgment of the

district    court   upholding       the     Commissioner’s      denial    of    social

security benefits.



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AFFIRMED.




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