     Case: 14-20363      Document: 00512958368         Page: 1    Date Filed: 03/05/2015




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT

                                                                         United States Court of Appeals

                                    No. 14-20363
                                                                                  Fifth Circuit


                                  Summary Calendar
                                                                                FILED
                                                                            March 5, 2015
                                                                           Lyle W. Cayce
JOHN W. HAMILTON-PROVOST,                                                       Clerk

              Plaintiff - Appellant

v.

CAROLYN COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY

              Defendant - Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:12-CV-2585


Before DAVIS, CLEMENT, and COSTA, Circuit Judges.
PER CURIAM:*
       John Hamilton-Provost was denied benefits under Title II and Title XVI
of the Social Security Act.          On appeal, Hamilton-Provost raises several
challenges to the Commissioner’s finding that he was not disabled.


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
       * “R.” refers to the Bates-stamped page numbers of the paper administrative record.

“ROA.” refers to the electronic record on appeal.
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                                    No. 14-20363
                                           I.
      In 2004, Hamilton-Provost applied for supplemental security income
benefits (SSI) under Title XVI and disability insurance benefits under Title II.
He alleged that he had been disabled since December 14, 2002 as a result of
visual and mental health impairments. After Hamilton-Provost’s application
was denied initially and on reconsideration, an Administrative Law Judge
(ALJ) held a hearing in July 2008. 1 The ALJ concluded that Hamilton-Provost
was not disabled, and the Appeals Council denied review. Hamilton-Provost
sought judicial review in federal district court, which resulted in the court
remanding the case to the Commissioner with instructions to consider medical
records which were not reviewed at the 2008 hearing. On remand in 2011, a
different ALJ also concluded that Hamilton-Provost was not disabled. In 2012,
the Appeals Council denied review of the Title II claim, but granted review of
the Title XVI claim and affirmed the ALJ’s decision with modifications.
Hamilton-Provost again filed suit in federal district court. After considering
the parties’ cross-motions for summary judgment, the district court concluded
that substantial evidence supported the Commissioner’s finding of no
disability. This appeal followed.
      The factual record in this case is detailed and lengthy. We summarize
the relevant facts. Hamilton-Provost testified at the administrative hearings
that he was 51 years old at the time of his alleged disability onset, had earned
a general equivalency diploma, and could perform various physical tasks
(including lifting up to fifty pounds). He also testified that he wore a prosthetic
in his right eye, could only see shadows out of his left eye, used Braille to read,
did not wear glasses because they did not help him, and used a cane and escort


      1 An administrative hearing had been held in July 2006, but Hamilton-Provost failed
to appear. Upon request by Hamilton-Provost, the Appeals Council remanded the case for
another hearing, which resulted in the 2008 hearing.
                                           2
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                                    No. 14-20363
to get around.    At both hearings, Hamilton-Provost appeared pro se and
telephonically because he was, and continues to be, incarcerated on a life
sentence for robbery. He began serving his sentence in 2008, and the case is
currently on appeal.           As the district court noted, Hamilton-Provost’s
incarceration potentially complicates his eligibility for benefits.
      A Vocational Expert testified in 2008 that Hamilton-Provost had last
worked in 1993 and had past relevant work experience as a general laborer,
detailer, tank cleaner, and delivery driver. The expert also testified that a
person with Hamilton-Provost’s age, education, work experience, and residual
functional capacity could work as a detailer, laundry worker, industrial
cleaner, and dining room attendant, and that these jobs existed in significant
numbers in the national economy. A different Vocational Expert testified in
2011 that a person with Hamilton-Provost’s residual functional capacity could
continue to work as a general laborer.
      The     record    also    documents       the    medical    history   surrounding
Hamilton-Provost’s alleged impairments. Between 2003 and 2008, various
physicians examined Hamilton-Provost or reviewed his ophthalmological
records.    An August 2003 examination diagnosed Hamilton-Provost with
“profound visual loss” with “no apparent cause” and concluded that he was
“most likely malingering.”         R.350–51.          Later that month, a review of
Hamilton-Provost’s records concluded that “[n]o objective clinical findings
[supported] the apparent impairment of . . . vision suggested by subjective test
responses.”    R.359.    The doctor further concluded that “[a] severe visual
impairment was not established on the basis of medical evidence.” R.359. An
April 2004 examination recorded Hamilton-Provost’s left-eye vision as 20/200
without correction.        An August 2004 examination concluded that if
Hamilton-Provost “has loss of vision due to organic disease, it is masked by
functional overlay,” and opined that the prognosis was “[g]ood for retention of
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                                      No. 14-20363
vision.” R.360–61. A September 2004 review of the medical records concluded
that there was “no severe pathology of [the] left eye,” and that the “subjective
blindness of [the] left eye is not supported.” R.364. Finally, a November 2008
examination diagnosed a left-eye vision of 20/200 with correction. 2
       Hamilton-Provost’s records also reflect a history of mental health
assessments. In August 2004, a physician conducted a mental status report
and noted that Hamilton-Provost had a history of depression and anxiety and
that his mood and affect were depressed; the report also concluded, however,
that his memory, attention, concentration, insight, judgment, and ability to
relate to others and sustain work were all fair.                 At a September 2004
examination, Hamilton-Provost complained of feeling depressed and of
difficulty interacting with people.              The examining doctor noted that
Hamilton-Provost’s “mood was sad” and that his “thought processes were
logical, goal-directed, relevant, and coherent.” R.367. The doctor assessed a
moderate impairment in functioning, 3 and concluded that “[p]rognosis is fair
with continuation of treatment, psychosocial support, and rehabilitation.”
R.368. In October 2004, a state agency Ph.D. reviewed the psychiatric records
and concluded that Hamilton-Provost’s condition did not meet the criteria for
Listing 12.04 (Affective Disorders) or Listing 12.06 (Anxiety-Related
Disorders), both of which would automatically establish disability under the
Act. At a July 2008 examination, Hamilton-Provost reported that he had been
experiencing auditory hallucinations and that he was experiencing distressing




       2   This is one of the three examinations which the district court ordered the
Commissioner to consider on remand.
        3 The examiner assessed a Global Assessment Functioning score of 55, which entails:

“Moderate Symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks)
OR moderate difficulty in social, occupational, or school functioning (e.g., few friends,
conflicts with peers or co-workers).” Am. Psychiatric Ass’n, Diagnostic & Statistical Manual
of Mental Disorders 34 (4th ed. text rev. 2000).
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                                      No. 14-20363
symptoms. The examining doctor observed that Hamilton-Provost was: calm,
cooperative, goal-directed and rational, exhibited clear and concise speech,
exhibited no psychotic or anxious symptoms, and was mildly depressed. Later
that month, another examination concluded that all objective indicators were
normal except for a “slightly depressed and anxious” mood. 4 R.428.
                                                 II.
       Federal courts have jurisdiction to review the final decision of the Social
Security Commissioner pursuant to 42 U.S.C. § 405(g). Judicial review “of the
Commissioner’s decision 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.” Perez v. Barnhart, 415
F.3d 457, 461 (5th Cir. 2005). Substantial evidence is “more than a mere
scintilla and less than a preponderance,” Masterson v. Barnhart, 309 F.3d 267,
272 (5th Cir. 2002), and is “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S.
389, 401 (1971) (internal citation omitted).                “In determining whether
substantial evidence of disability exists, this court weighs four factors:
(1) objective medical evidence; (2) diagnoses and opinions; (3) the claimant’s
subjective evidence of pain and disability; and (4) the claimant’s age, education,
and work history.” Perez, 415 F.3d at 462 (internal citation omitted). In
applying this standard of review, we may not reweigh the evidence or
“substitute our judgment for the Commissioner's, even if we believe the
evidence weighs against the Commissioner’s decision.” Masterson, 309 F.3d at
272. Conflicting evidence is for the Commissioner, not the courts, to resolve.
Id.



       4 The July 2008 examinations constitute the other two of a total of three examinations
that the district court ordered the Commissioner to consider on remand.
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                                  No. 14-20363
        Although Social Security disability insurance and SSI are separate and
distinct programs, Hamilton-Provost’s entitlement to benefits under either
program requires him to establish a “disability” under the Act. See 42 U.S.C.
§ 423(a)(1) (eligibility requirements for disability insurance); 42 U.S.C.
§§ 1381a (eligibility requirements for SSI). Disability is defined as the inability
“to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to . . . last
for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A)
(disability insurance); 42 U.S.C. § 1382c(3)(A) (SSI). To determine whether the
claimant is disabled, the ALJ conducts a five-step inquiry: (1) whether the
claimant is currently engaged in substantial gainful activity; (2) whether the
claimant has a severe impairment; (3) whether the claimant’s impairment
meets or equals an impairment listed in the regulations; (4) whether the
claimant is capable of returning to his previous work; and (5) whether the
claimant is capable of performing any other work. Perez, 415 F.3d at 461
(internal citations omitted). Before proceeding to step four, the Commissioner
must evaluate the claimant’s residual functional capacity (RFC)—“a
determination of the most the claimant can still do despite his physical and
mental limitations.” Id. at 461–62. The RFC is used at step four to determine
if the claimant can continue to perform his past relevant work; at step five, the
RFC is used to determine whether the claimant is capable of performing any
other work. Id. at 462. The claimant bears the burden of proof on the first four
steps, and then the burden shifts to the Commissioner on the fifth step. Id. at
461.
                                       III.
        Hamilton-Provost first argues that the Commissioner’s decision is not
supported by substantial evidence.            Specifically, he challenges the
Commissioner’s findings at steps three, four, and five of the disability inquiry.
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                                       No. 14-20363
       After the remand from the district court, the ALJ found at step three
that Hamilton-Provost’s impairments did not meet or equal impairments listed
in the regulations. The ALJ then assessed Hamilton-Provost’s RFC, finding:
       [T]he claimant has the [RFC] to perform a full range of work at all
       exertional levels but with the following nonexertional limitations:
       no climbing ropes, ladders or scaffolds, no working at unprotected
       heights or around dangerous moving machinery, simple routine
       work environment, no highly detailed work and none requiring
       sustained concentration or attention for prolonged periods, only
       occasional interaction with the general public, no driving, and no
       work that requires good depth perception.
R.547. Based on this RFC, the ALJ found that Hamilton-Provost was capable
of performing his past relevant work as a general laborer and thus made a
no-disability finding at step four of the inquiry. The Appeals Council in 2012
denied review of the Title II disability insurance claim, rendering the ALJ’s
decision the final decision of the Commissioner, but granted review of the SSI
claim, which was based on a different time frame. 5 The Appeals Council agreed
with the RFC determination, but concluded that stage four denial was
inappropriate for the Title II claim. The Appeals Council proceeded to step
five, at which point it adopted the testimony of the Vocational Expert from
2008 that Hamilton-Provost was capable of performing other work.                         The
Appeals Council thus affirmed the ALJ’s no-disability finding for the Title II
claim on this modified basis.



       5 For the Title II disability insurance claim, the relevant time period is December 14,
2002 (the alleged disability onset date) through December 31, 2006 (the last date on which
Hamilton-Provost met the Act’s insured requirement). The relevant time period for the SSI
claim is December 14, 2002 through July 25, 2011 (the date of the ALJ’s decision). The
Appeals Council modified the SSI decision because Hamilton-Provost’s work as a general
laborer in 1993 was more than 15 years prior to the 2011 decision (the end-date of the
relevant time period for the SSI claim), and was therefore too remote in time to qualify as
“past relevant work.” See 20 C.F.R. § 416.960(b)(1). This was not an issue with respect to
the Title II disability insurance claim because Hamilton-Provost’s past relevant work was
within 15 years of his last insured date of December 31, 2006.
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                                       No. 14-20363
       We conclude that substantial evidence supports the Commissioner’s
decision.      In making his           determination,       the ALJ first considered
Hamilton-Provost’s testimony regarding his symptoms and conditions; the ALJ
found the testimony not credible, noting Hamilton-Provost’s multiple felony
convictions. 6 The ALJ also reviewed the objective medical evidence, as well as
opinions and diagnoses, including the 2008 eye and psychiatric examinations
that the district court instructed the Commissioner to consider on remand. As
to the visual impairment, Hamilton-Provost contends that the November 2008
eye examination satisfies the requirements of Listing 2.02, requiring a
disability finding in his favor at step three. 7 But the ALJ considered that
examination and accorded it little weight on the grounds that it did not provide
a reason why Hamilton-Provost was legally blind and was inconsistent with
the reports of malingering. The ALJ instead found that the allegations of
statutory blindness were not credible, a determination squarely within his
province. 8 See Masterson, 309 F.3d at 272. The RFC nevertheless accounts for
visual problems by restricting work requiring driving, climbing, unprotected
heights, or good depth perception. Substantial evidence in the record supports
the ALJ’s conclusion, including the examinations from August 2003, April
2004, and August 2004; and the medical record review from September 2004.


       6  Prior to the life sentence he is currently serving for robbery, Hamilton-Provost was
incarcerated for felony theft from approximately 1970–1972, for attempted murder from
1978–1990, and for a parole violation from 1999–2001.
        7 Listing 2.02 pertains to loss of visual acuity and is satisfied when the remaining

vision in the claimant’s better eye, after best correction, is 20/200 or less. See 20 C.F.R. pt.
404, subpt. P, app. 1, § 2.02 (defining loss of central visual acuity as “[r]emaining vision in
the better eye after best correction is 20/200 or less”).
        8 Hamilton-Provost also argues that his impairment meets Listing 2.03, which

pertains to contraction of the visual field in the better eye, but he merely recites the
diagnostic criteria of the listing and points to no objective medical evidence supporting his
assertion. The claimant bears the burden of proving presumptive disability under the
regulations at step three of the five-step inquiry. Perez, 415 F.3d at 461. The ALJ determined
that Hamilton-Provost did not carry his burden, specifically finding that Hamilton-Provost’s
subjective allegations of visual impairment were not credible. .
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                                       No. 14-20363
       On appeal to this court, Hamilton-Provost offers for the first time an
examination dated February 2014, which diagnoses a left-eye vision of 20/200
with correction. The examination was performed by Dr. George Steed, the
same physician who diagnosed a left-eye vision of 20/200 with correction in
November 2008. A district court may remand the case to the Commissioner if
“there is new evidence which is material and . . . there is good cause for the
failure to incorporate such evidence into the record in a prior proceeding.” See
42 U.S.C. § 405(g). The statute does not expressly allow for, and we could find
no case permitting, new evidentiary submissions in the court of appeals. We
need not reach this question, however, because remand based on new evidence
would not be appropriate even if it were generally allowed at this late stage.
       Evidence is material if there is “a reasonable possibility that it would
have changed the outcome of the [ALJ’s] determination.” Latham v. Shalala,
36 F.3d 482, 483 (5th Cir. 1994). The examination at issue was not performed
until approximately nineteen months after the Appeals Council reviewed the
ALJ’s decision, and so it is not probative of whether Hamilton-Provost was
disabled at the time the Commissioner issued her decision. 9 Cf. Perkins v.
Shalala, 36 F.3d 90, 95 (5th Cir. 1994) (holding that district court erred in
finding medical records offered for the first time before it were not new and
material evidence, and remanding to Commissioner on grounds that the
claimant “made a strong showing that the ‘new’ evidence presented confirms
that he suffered from a [disability] at the time that the ALJ denied the benefits”)



       9 This situation is quite different from that surrounding the November 2008 records.
There, the eye examination was conducted two weeks before the ALJ issued his decision in
2008. It is not clear if those records were available to the ALJ, but it is undisputed that they
were available to the Appeals Council. The district court thus remanded the case because
the Commissioner failed to consider this evidence. Cf. Higginbotham v. Barnhart, 405 F.3d
332, 337 (5th Cir. 2005) (holding that evidence presented for the first time to the Appeals
Council is part of the administrative record because the Commissioner’s decision is not final
until the Appeals Council issues its decision).
                                               9
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                                         No. 14-20363
(emphasis added).          Further, remand is not appropriate “solely for the
consideration of evidence of a subsequent deterioration of what was correctly
held to be a non-disabling condition.” Johnson v. Heckler, 767 F.2d 180, 183
(5th Cir. 1985) (noting that “subsequent deterioration, however, may form the
basis for a new claim”). The ALJ found that the claims of statutory blindness
were not credible, and substantial evidence supported his finding.                            The
February 2014 examination is thus relevant, if at all, only as evidence of
subsequent deterioration of a non-disabling condition. Remand to the agency
on these grounds is not appropriate.
       As to the mental health impairment, Hamilton-Provost contends that his
condition satisfies the requirements of Listing 12.04, requiring a disability
finding in his favor at step three. 10              But the ALJ considered all of the
psychiatric evidence (as well as Hamilton-Provost’s subjective claims) and
concluded that the record did not establish that Listing 12.04 was met. At step
four, the ALJ concluded that no objective medical evidence showed the
impairment to be so severe that Hamilton-Provost could not work within the


       10  Listing 12.04 pertains to affective disorders and is “[c]haracterized by a disturbance
of mood, accompanied by a full or partial manic or depressive syndrome.” See 20 C.F.R. pt.
404, subpt. P, app.1, § 12.04. To meet Listing 12.04, the claimant must satisfy the
requirements listed in both paragraphs A and B of the regulation, or paragraph C. See id.
As relevant to this case, paragraph B requires a medically documented persistent syndrome
to result in at least two of the following: (1) marked restrictions of daily living; (2) marked
difficulties in social functioning; (3) marked difficulties in concentration, persistence, or pace;
or (4) repeated episodes of extended decompensation. See id. As relevant to this case,
paragraph C requires a medically documented “chronic affective disorder of at least two
years’ duration that has caused more than a minimal limitation of ability to do basic work,”
and either: (1) repeated episodes of decompensation, each of extended duration; (2) such
marginal adjustment that a minimal increase in mental demands or change in environment
would cause decompensation; or (3) a history of at least one years’ inability to function outside
a highly supportive living arrangement. See id. The ALJ found that the evidence did not
satisfy paragraph B or paragraph C. Specifically, the ALJ found that Hamilton-Provost did
not have marked restrictions or difficulties with daily life, social functioning, or ability to
sustain focused attention and concentration for prolonged periods of time, and that there was
no evidence that he was unable to function outside of his home or that slight changes in his
mental demands or environment would result in “decompensation.”
                                               10
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                                     No. 14-20363
RFC’s limitations, which restrict work requiring a high level of detail,
sustained concentration for prolonged periods, or more than occasional
interaction with the general public.             Substantial evidence in the record
supports the ALJ’s decision, including the August 2004 report (noting that
Hamilton-Provost’s memory, attention, concentration, insight, judgment, and
ability to relate to others and sustain work were all fair) and the September
2004 examination (assessing his functioning as moderately impaired but
giving a fair prognosis). 11
       Hamilton-Provost also argues that the Commissioner erred at step five
by adopting the testimony of the Vocational Expert from the 2008 hearing. The
Appeals Council has broad authority to modify the ALJ’s decision. See 20
C.F.R. §§ 404.979, 416.1479 (“The Appeals Council may affirm, modify or
reverse the administrative law judge hearing decision or it may adopt, modify
or reject a recommended decision.”). The RFC that the Vocational Expert
considered in 2008 was, in all relevant respects, substantially similar to the
RFC assessed in 2011. 12 Further, Hamilton-Provost was present by telephone
at the 2008 hearing; when asked if he had any questions for the Vocational
Expert following her testimony, he responded: “No, sir.”                   R.486.     The
Commissioner satisfied her step five burden of showing that Hamilton-Provost
is capable of performing other work that exists in the local or national economy,
and Hamilton-Provost failed to rebut this showing.



       11  Hamilton-Provost also argues that his impairment meets Listing 12.06
(Anxiety-Related Disorders). For the same reasons we discussed in connection with his
Listing 2.03 claim, this argument fails. See supra note 8 and accompanying text.
       12 The 2008 RFC contained restrictions accommodating the mental health impairment

(no highly detailed work, occasional interaction with the general public, no work requiring
sustained concentration or attention for prolonged periods) and the visual impairment (no
work requiring good depth perception). The 2011 RFC incorporated all of these restrictions
and added more; the additional limitations, however, do not meaningfully change the nature,
scope, and purpose of the restrictions in the 2008 RFC.
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                                   No. 14-20363
      Hamilton-Provost next argues, for the first time in the long history of his
case, that the Commissioner did not apply the correct legal standard in
declining to give weight to Dr. Steed’s November 2008 opinion and diagnosis.
“Arguments not raised in the district court cannot be asserted for the first time
on appeal.” Greenberg v. Crossroads Sys., Inc., 364 F.3d 657, 669 (5th Cir.
2004).     Nonetheless, we note that his argument fails on the merits.
Hamilton-Provost contends that the ALJ was required under Newton v. Apfel,
209 F.3d 448, 453 (5th Cir. 2000) to address the factors set forth in 20 C.F.R.
§§ 404.1527(d), 416.927(d) before rejecting Dr. Steed’s opinion. But Newton
stated that the ALJ is required to do so “absent reliable medical evidence from
a treating or examining physician controverting the claimant’s treating
specialist.” 209 F.3d at 453. Here, Dr. Steed’s opinion was controverted by
evidence from other examining and treating physicians.
      In sum, we agree with the thorough reasoning of the district court and
conclude that the Commissioner’s decision is supported by substantial
evidence in the record and that the Commissioner did not apply the incorrect
legal standard in arriving at her decision. 13


                                         IV.
      The judgment of the district court is AFFIRMED.




      13 In light of our holding, we need not address the impact of Hamilton-Provost’s
incarceration on his eligibility for benefits.
                                         12
