                                                                                   United States Court of Appeals
                                                                                            Fifth Circuit
                                                                                           F I L E D
                                                   In the                                   March 8, 2005
                          United States Court of Appeals                              Charles R. Fulbruge III
                                        for the Fifth Circuit                                 Clerk
                                             _______________

                                               m 04-20107
                                             _______________




                                      KATHERINE E. HAMMOND,

                                                                Plaintiff-Appellant,

                                                  VERSUS

                                        JO ANNE B. BARNHART,
                     COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,

                                                                Defendant-Appellee.


                                      _________________________

                              Appeal from the United States District Court
                                  for the Southern District of Texas
                                          m H-02-CV-4171
                                ______________________________




Before DAVIS, SMITH, and DEMOSS,                           Katherine Hammond appeals a summary
  Circuit Judges.                                       judgment in favor of the Commissioner of So-
                                                        cial Security denying her application for dis-
JERRY E. SMITH, Circuit Judge:*                         ability insurance and supplemental security in-
                                                        come benefits. Finding no error, we affirm.

                                                                                 I.
   *
                                                            Hammond applied for disability insurance
     Pursuant to 5TH CIR. R. 47.5, the court has de-
                                                        benefits and supplemental security income ben-
termined that this opinion should not be published
                                                        efits, alleging disability starting in July 1997.
and is not precedent except under the limited cir-
cumstances set forth in 5TH CIR. R. 47.5.4.
                                                        She claims she could not work because of
ulceritive colitis, immune deficiency disease,             mond’s pro se status.2 Second, Hammond
irritable bowel syndrome, diarrhea, weakness,              contends that (1) the record lacks substantial
nausea, stomach pain, headaches, and                       support for the ALJ’s finding that Hammond’s
malapsortion; she also said she was depressed.             depression was not severe and (2) the severity
The Commissioner denied the claim.                         was determined without considering the opin-
                                                           ions of two state agency psychological consul-
   Hammond obtained a hearing before an ad-                tants. Finally, Hammond argues that the Ap-
ministrative law judge (the “ALJ”) in July                 peals Council erred in failing to remand the
1999. She appeared pro se. The ALJ denied                  case to consider sixty pages of new medical
Hammond’s request for benefits, finding that               records not introduced at the administrative
although she suffered from irritable bowel syn-            hearing.
drome and major depression, neither im-
pairment was sufficiently severe to qualify as a                                   II.
severe disability within the meaning of the                   The Commissioner conducts a five-step se-
Social Security Act (the “Act”). Hammond                   quential analysis in evaluating a disability
then filed a pro se request for review by the              claim, see Bowling v. Shalala, 36 F.3d 431,
Appeals Council, which denied the request,                 435 (5th Cir. 1994), and determines (1) wheth-
whereupon Hammond retained counsel and                     er the claimant is presently working;
urged the Appeals Council to reconsider,1                  (2) whether the claimant has a severe impair-
which was denied.                                          ment; (3) whether the impairment meets or
                                                           equals an impairment listed in appendix 1 of
   Hammond sued, and both sides moved for                  the social security regulations; (4) whether the
summary judgment. The magistrate judge, sit-               impairment prevents the claimant from doing
ting as the district court by consent, granted             past relevant work; and (5) whether the im-
the Commissioner’s motion and denied Ham-                  pairment prevents the claimant from doing any
mond’s, holding that the ALJ had not legally               other substantial gainful activity, see id. A
erred and that substantial evidence supported              finding that a claimant is not disabled at any
the finding that Hammond was not disabled.                 point in the five-step process terminates the in-
                                                           quiry. See Crouchet v. Sullivan, 885 F.2d
   Hammond appeals on three grounds. First,                202, 206 (5th Cir. 1989).3 Title 42 U.S.C.
she argues that the ALJ abrogated his height-              § 423(d)(1)(A) defines disability as an “in-
ened duty to develop the facts in light of Ham-            ability to engage in any substantial gainful
                                                           activity by reason of any medically determina-

                                                              2
                                                               Hammond appeared pro se for a portion of the
                                                           proceedings.
   1
     Hammond urged the Appeals Council to re-
                                                              3
consider because, she argued, the ALJ’s decision                On the first four steps of the analysis, the
was not supported by substantial evidence, the ALJ         claimant bears the burden of showing he is disab-
applied incorrect legal standards, and new evidence        led. See Wren v. Sullivan, 925 F.2d 123, 125 (5th
not introduced at the hearing established the sever-       Cir. 1991). On the fifth, the Commissioner must
ity of her depression. She also asserted the ALJ’s         show that there is other, substantial work in the
finding that her irritable bowel syndrome was not          national economy that the claimant can perform.
severe lacked support in the record.                       See id.

                                                       2
ble physical or mental impairment which can                                       III.
be expected to result in death or which has                 Hammond claims that, because she was ap-
lasted or can be expected to last for a continu-         pearing pro se, the ALJ had a heightened duty
ous period of not less than 12 months . . . .”           to develop facts regarding the severity of her
                                                         impairment at the administrative hearing. We
   The ALJ determined that Hammond was                   do not consider this issue, because Hammond
not disabled at the second step of the analysis,         raises it for the first time on this appeal. See
finding that her impairment was not severe.              Leverette v. Louisville Ladder Co., 183 F.3d
“[A]n impairment can be considered as not                339, 342 (5th Cir. 1999).
severe only if it is a slight abnormality [having]
such minimal effect on the individual that it                                  IV.
would not be expected to interfere with the                 Hammond attacks the factual sufficiency of
individual’s ability to work, irrespective of            the record the Commissioner relied on in de-
age, education or work experience.” Stone v.             nying benefits. Hammond argues that (1) the
Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985)             Commissioner reached her decision without
(internal quotations and citations omitted).             sufficiently considering the opinions of two
                                                         state agency psychological consultants and
   Our review is limited to determining wheth-           (2) the record lacks substantial evidence in
er there is substantial evidence in the record           support of the Commissioner’s finding.
supporting the Commissioner’s decision to
deny benefits and whether the Commissioner                                      A.
applied proper legal standards in doing so.4                The record contains a Psychiatric Review
Substantial evidence is “that which is relevant          Technique form completed by a state agency
and sufficient for a reasonable mind to accept           psychological consultant, A. Boulos, M.D.,
as adequate to support a conclusion; it must be          and affirmed by another, Mehdi Sharihan,
more than a scintilla, but it need not be a              M.D.5 Hammond argues that the law requires
preponderance.” Leggett v. Chater, 67 F.3d               the ALJ to consider carefully all medical opin-
558, 564 (5th Cir. 1995) (quoting Anthony v.             ions, both from sources who have treated or
Sullivan, 954 F.2d 289, 295 (5th Cir.1992)).             examined the claimant and for nonexamining
                                                         sources such as medical professionals affiliated
   We may not reweigh the record evidence,               with the disability program. She contends that
try the issues de novo, or substitute our judg-          the ALJ failed to consider these doctors’
ment for that of the Commissioner. See John-             opinions in t he manner 20 C.F.R.
son, 864 F.2d at 343. If, under these criteria,          § 404.1527(f)(2) requires.6
substantial evidence supports such findings,
they are conclusive. See 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 401                    5
                                                              The record contains several different spellings
(1971).
                                                         of the name of the person we refer to as Sharihan.
                                                            6
                                                               That regulation requires that “[u]nless the
                                                         treating source’s opinion is given controlling
   4
     See Greenspan v. Shalala, 38 F.3d 232, 236          weight, the [ALJ] must explain in the decision the
(5th Cir. 1994); Johnson v. Bowen, 864 F.2d 340,         weight given to the opinions of a State agency
347 (5th Cir. 1998).                                     medical or psychological consultant or other pro-

                                                     3
    We have three observations regarding                    He concluded in his final “Functional Capacity
Hammond’s argument. First, although there is                Assessment” that she retained the ability to
no statutorily or judicially imposed obligation             understand and follow simple instructions, to
for the ALJ to list explicitly all the evidence he          interact adequately with coworkers and super-
takes into account in making his findings, §                visors, and to adapt to routine working envi-
404.1527(f)(2) does require that the ALJ                    ronments.9
articulate the weight given to experts in the
positions of Boulos and Sharihan. The ALJ                       Our t hird observation is that if, in the al-
therefore erred in failing to provide such an               ternative, one believed the forms filled out by
explanation.7 Our second and third obser-                   Boulos and affirmed by Sharihan undermined
vations, however, explain why we consider the               the ALJ’s finding of insufficient severity, they
error harmless.8                                            would not do so to the degree necessary for us
                                                            to overturn the ALJ’s determination on sub-
   Either the evidence in Boulos’s and Shari-               stantial evidence review. The ALJ’s failure to
han’s reports supports and confirms the ALJ’s               mention a particular piece of evidence does
finding, or it does not. We consider both pos-              not necessarily mean that he failed to consider
sibilities. Our second observation is that, even            it, and the ALJ’s decision states explicitly that
though the ALJ erred in failing explicitly to               he considered the entire record in his decision.
weigh the relevant evidence, the opinions ex-               In ruling on the severity of Hammond’s condi-
pressed by Boulos and Sharihan seem to con-                 tion, he likely made the same fact-based judg-
firm those of the other medical experts.                    ments that form the basis of our refusal to
                                                            overturn his decision on substantial evidence
   Under this reading of the record, the error              review.10 We discuss this evidence more thor
would obviously be harmless. When rating the                oughly in the subsequent subsection.
severity of Hammond’s impairment, Boulos
indicated that Hammond’s mental disorder
only slightly limited her daily activities, in-                9
                                                                 There is evidence that Boulos did not consider
cluding the range of her social interactions.               Hammond’s conditions particularly severe. In the
                                                            “Rating of Impairment Severity” section, Boulous
                                                            found that no functional limitations met the degree
gram physician or psychologist . . . .” 20 C.F.R.           of impairment necessary to satisfy the Listings (of
§ 404.1527(f)(2)(ii).                                       disorders). The medical form indicates that, for an
                                                            impairment to satisfy the Listings, it must be
   7
     The district court’s holding that the ALJ need         marked, extreme, constant, or continual. In other
not furnish such an explanation is therefore over-          words, although the form indicates that Hammond
ruled, but this decision does not affect the outcome,       “often” suffered deficiencies of concentration, that
as we explain.                                              level of severity is less than a “frequent” limitation,
                                                            the degree that appears to be necessary to qualify
   8
     The harmless error doctrine applies in Social          Hammond’s impairment as “severe” under the
Security disability cases. See Morris v. Bowen,             relevant legal and medical criteria.
864 F.2d 333, 335 (5th Cir. 1998). “Procedural
                                                               10
perfection in administrative proceedings is not req-             Procedural errors constitute bases for remand
uired” as long as “the substantial rights of a party        only where they cast into doubt the existence of
have not been affected.” Id. (quoting Mays v.               substantial evidence to support the ALJ’s decision.
Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988)).                See Morris, 864 F.2d at 335.

                                                        4
                        B.                                shalani whether Hammond had “any objective
    Hammond contends that there is no record              work-related restrictions,” he responded that
evidence supporting the finding that her im-              such restrictions were “[n]ot evident in the
pairments of irritable bowel syndrome and de-             record, pertaining to the mental component.”
pression are not severe. Again, in Stone, 752
F.2d at 1101, we stated that “an impairment                  Psychiatrist Kathy Scott-Gurnell conducted
can be considered as not severe only if it is a           a consultive psychiatric examination of Ham-
slight abnormality [having] such minimal effect           mond in April 1998 and reported that Ham-
on the individual that it would not be expected           mond had left her job because of stress and
to interfere with the individual’s ability to             crying spells, that her concentration was poor,
work, irrespective of age, education, or work             that she was isolative, that she had feelings of
experience.”                                              hopelessness, that she occasionally had suicidal
                                                          ideation, that she had good and bad days, and
    Having reviewed Hammond’s psychiatric                 that she had an anxiety attack in 1997. Scott-
record, Ashok Khushalani, a psychiatrist, tes-            Gurnell nonetheless determined that when
tified before the ALJ:                                    Hammond’s colitis was not active, she could
                                                          perform all activities of daily living. Based on
   [T]here’s not much of a history of psychiat-           this examination, Scott-Gurnell concluded that
   ric treatment in the record. The only refer-           Hammond’s insight and judgment were good
   ence to a [sic] depression is in a psychiatric         but that her concentration was impaired.12
   consultative report done by Dr. Gunnell                Although Scott-Gurnell assigned Hammond a
   [sic] in April of 1999. That makes refer-              Global Assessment of Functioning (“GAF”)
   ence to her being diagnosed in the past with           score of 40 (a score that could be consistent
   depression, and having been treated with               with a severe impairment), the ALJ determined
   certain anti-depressants. Other than that,             that Hammond’s specific impairments were
   there’s no record of any ongoing treatment,            not severe.13
   except that she’s on Paxil, which is an anti-
   depressant, and that she’s been stable as it
   relates to her depression on the Paxil. But            Fort Bend Family Health Clinic in February 1998,
   there is no ongoing evidence of any                    where she reported that she had been depressed for
   significant symptoms of depression or that             six years and had previously, but was no longer,
   the symptoms are interfering in any kind of            taking Zoloft. She also reported chest tightness
   functioning.                                           and shortness of breath, conditions that may have
                                                          been anxiety-induced. Hammond was referred to
Khushalani’s characterization of Hammond’s                social services for anxiety, depression and panic at-
psychiatric treatment history is consistent with          tacks, and she was placed on the antidepressant
the appellate record.11 When the ALJ asked Khu            Trazodone.
                                                             12
                                                                 Scott-Gurnell noted that Hammond had so-
                                                          matic and psychiatric conditions that were sensitive
   11
     The first appearance of depression in the rec-       to stress and that the prognosis was “fair but good
ord is a treatment note from Dr. D.T. Shah in             if mental illness [were] treated to remission.”
March 1995, stating that Hammond was taking Ef-
                                                             13
fexor, a common antidepressant. The next treat-               Specifically, the ALJ determined that Scott-
ment notes are from a visit Hammond made to the           Gurnell’s findings were not substantiated by the

                                                      5
    The record also contains medical records               decompensation in a work-like setting.
concerning Hammond’s depression from Mark
Stone, a general practitioner who treated                     The ALJ did not explicitly mention Scott-
Hammond in 1998 and 1999. Several treat-                   Gurnell’s determination that Hammond’s con-
ment notes from June 1998 indicated that                   centration was impaired, that she had left her
Hammond was responding well to her 50-mil-                 last job because of a crying spell, that she had
ligram dosage of Zoloft. Notes from July                   a GAF score of 40, or that her prognosis was
1998 indicated that Stone granted Hammond’s                only fair unless her depression was adequately
request to increase her dosage to 100 milli-               treated. As we have said, the ALJ also
grams per day. Over the course of the next                 omitted discussion of Boulos’s opinions,
several months, Hammond was tapered off                    opinions that Sharihan affirmed.
Zoloft and began taking ten milligram doses of
Paxil. In February 1999, the treatment notes                  Our status as an appellate court precludes
described Hammond as doing “fairly well.”                  us from reviewing the record de novo, and
Her dosage was eventually increased to 20                  there is some evidence that points to a
milligrams, but her condition remained good.               conclusion that differs from that adopted by
                                                           the ALJ. We nonetheless decline to reverse
   Based on this evidence, the ALJ noted that              the ALJ because there is far more than a
Scott-Gurnell had diagnosed Hammond with                   scintilla of evidence in the record that could
major depressive disorder but that she re-                 justify his finding that Hammond’s
mained capable of performing daily functions               impairments were not severe disabilities within
when her colitis was not active. Based on                  the meaning of the Act.15
Khushalani’s testimony, the ALJ ruled that
Hammond’s impairments did not qualify as                                          V.
severe, in spite of a specific finding that she                Hammond contends that the Appeals Coun-
indeed suffered from major depressive                      cil erred by failing to consider sixty pages of
disorder.14 In a psychiatric review technique              new medical records pertaining to treatment
form appended to his decision, the ALJ                     that occurred after the administrative hearing.
determined that Hammond had no restrictions                The introduction of new evidence justifies
on daily living, no difficulties in maintaining            remand only where it is material and there is
social functioning, never had deficiencies of              good cause for the petitioner’s failure to
concentration, persistence, or pace, and never             incorporate such evidence into the record of a
had an episode of deterioration or                         prior proceeding. 42 U.S.C. § 405(g). We
                                                           consider new evidence to be material if there is

additional evidence of record, that even where other
treating sources referenced Hammond’s medication
                                                              15
they did not classify her impairment as severe, and               Hammond devotes little discussion to her co-
that Hammond had worked in spite of her condition          litis claim in her original and reply briefs. The rec-
for six years.                                             ord on this question, apparently consisting in part
                                                           of a report filled out by Dr. Moise D. Levy, indi-
   14
       The word “major” in “major depressive dis-          cates that Hammond’s allegations of colitis were
order” is a medical term and does not, in and of           “credible but not severe.” Given the absence of
itself, require us to consider the disorder “severe”       argumentation on this issue, we will not overturn
within the meaning of the law.                             the ALJ’s finding on substantial evidence review.

                                                       6
a reasonable probability that, if it had been
presented to the Commissioner, it would have
changed the outcome. See Latham v. Shalala,
36 F.3d 482, 483 (5th Cir. 1994). The
evidence must “relate to the time period for
which the benefits were denied, and . . . not
concern evidence of a later-acquired disability
or . . . the subsequent deterioration of the
previously non-disabling condition.” Johnson
v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985).

   Hammond seeks to submit medical records
that relate almost exclusively to her post-hear-
ing health and treatment16 and that do not
speak to the severity of her depression within
the meaning of the Act.17 It is not probable
that the ALJ would have decided the matter
differently if presented with the additional rec-
ords. Accordingly, the Appeals Council did
not err in refusing to consider them.

   AFFIRMED.




   16
       The district court’s review of the record
shows that 33 of the 42 pieces of evidence Ham-
mond seeks to submit post-dated the ALJ’s deci-
sion, issued on August 26, 1999.
   17
     All of the resubmitted evidence is cumulative,
and none of it speaks to the severity of the im-
pairment within the meaning of the Act. We
cannot say there is a reasonable probability that it
would have changed the Commissioner’s decision.


                                                       7
