                                                                                  United States Court of Appeals
                                                                                           Fifth Circuit
                                                                                          F I L E D
                                                  In the                                   April 16, 2007
                       United States Court of Appeals                                Charles R. Fulbruge III
                                      for the Fifth Circuit                                  Clerk
                                            _______________

                                              m 06-31126
                                            Summary Calendar
                                            _______________



                                         SHIRLENE REYNAUD,

                                                               Plaintiff-Appellant,

                                                 VERSUS

                                         MICHAEL J. ASTRUE,
                                 COMMISSIONER OF SOCIAL SECURITY,

                                                               Defendant-Appellee.


                                     _________________________

                             Appeal from the United States District Court
                                for the Western District of Louisiana
                                          m 1:05-CV-194
                               ______________________________



Before SMITH, WIENER, and OWEN,                           Shirlene Reynaud challenges a judgment af-
  Circuit Judges.                                      firming a decision of the Commissioner of So-
                                                       cial Security (the “Commissioner”) denying
PER CURIAM:*                                           her claim for social security disability benefits.
                                                       Because the Commissioner’s decision is sup-
                                                       ported by substantial evidence and comports
                                                       with the relevant legal standards, we affirm.
   *
    Pursuant to 5TH CIR. R. 47.5, the court has de-
termined that this opinion should not be published                             I.
and is not precedent except under the limited cir-         We review a denial of social security bene-
cumstances set forth in 5TH CIR. R. 47.5.4.            fits “only to ascertain whether (1) the final de-
cision is supported by substantial evidence and          ficient medical evidence, the ALJ may make a
(2) whether the Commissioner used the proper             decision based on the evidence available.
legal standards to evaluate the evidence.”               Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir.
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.             1991). Though the decision to order a CE is
2000). Substantial evidence is more than a               in the discretion of the ALJ, Anderson v. Sulli-
scintilla, but less than a preponderance, Spell-         van, 887 F.2d 630, 634 (5th Cir. 1989), such
man v. Shalala, 1 F.3d 357, 360 (5th Cir.                an examination must be ordered when a CE “is
1993), and a decision is supported by substan-           necessary to enable the administrative law
tial evidence if we find evidence sufficient to          judge to make the disability decision,” Pierre
establish that a reasonable mind could reach             v. Sullivan, 884 F.2d 799, 802 (5th Cir. 1989)
the Commissioner’s conclusion, Ripley v. Cha-            (quoting Turner v. Califano, 563 F.2d 669,
ter, 67 F.3d 552, 555 (5th Cir. 1995).                   671 (5th Cir. 1977)).

   We do not substitute our judgment for the                It is not disputed that Reynaud did not
Commissioner’s, even if the evidence weighs              claim that she was mentally retarded or de-
against his decision. Newton, 209 F.3d at 452.           pressed. Instead, her claim stems from a med-
If we find conflicts in the evidence, we accept          ical report by her personal physician, Dr. May-
the Commissioner’s resolution of the conflicts           eaux, that included a statement that Reynaud
so long as that resolution is supported by sub-          was “somewhat mentally compromised.” A
stantial evidence. Id.                                   state agency worker called the doctor to in-
                                                         quire about the statement, and the worker’s
                       II.                               notes from the call indicate that the doctor
   Reynaud alleges that the administrative law           stated that Reynaud “has a long standing de-
judge (“ALJ”) did not fully develop the record           pression which has been treated in the past
and consider all relevant evidence before find-          with prozax and celexa” and that he “thinks
ing that she did not qualify for disability pay-         that [Reynaud] has a very low IQ.”
ments. Specifically, Reynaud claims the ALJ
should have ordered a consultative examina-                 The above entry in Reynaud’s file is fol-
tion (“CE”) to determine whether she suffered            lowed by the recommendation of an agency
from mental retardation or depression.                   worker that a CE be ordered to ascertain
                                                         whether Reynaud suffered from mental retar-
   An ALJ must fully and fairly develop the              dation or depression. That entry is followed
facts relative to a claim for disability benefits.       by another, presumably from a different agen-
Ripley, 67 F.3d at 557. Reversal is appropri-            cy worker, stating that
ate, however, only if the applicant shows that
she was prejudiced. Id. Prejudice can be es-                Dr. Mayeaux’s statements are not support-
tablished by showing that had the ALJ ade-                  ed by the file evidence. There is no evi-
quately performed his duty, he “could and                   dence that the claimant is under any current
would have adduced evidence that might have                 treatment for depression. There was no ev-
altered the result.” Kane v. Heckler, 731 F.2d              idence of depression at the internist CE.
1216, 1220 (5th Cir. 1984).                                 She gives no limitations from depression on
                                                            her ADL’s. As far as her IQ, she graduated
   Reynaud bears the burden of proving her                  from high school and was not in special ed.
disability, and if she is unable to provide suf-            She raises her 13 yr. old son, shops unas-

                                                     2
   sisted, reads newspapers and magazines,                 Further, the administrative record includes the
   and performs all household chores indepen-              opinion of a state agency psychologist that
   dently. There is no MDI for depression or               Reynaud did not suffer from a mental impair-
   mental retardation and no CE is needed.                 ment.

The record also includes a Psychiatric Review                  “When there is no contention [by the claim-
Technique form completed by a state agency                 ant] that a claimant is mentally retarded, a few
psychologist, Dr. Spurrier, noting that Rey-               instances in the record noting diminished in-
naud does not suffer from any “medically de-               telligence do not require that the ALJ order an
terminable impairment.”                                    I.Q. test in order to discharge his duty to fully
                                                           and fairly develop the record.” Pierre, 884
    The district court found that the ALJ had              F.2d at 803. The ALJ was within in his discre-
fairly and fully developed the record, because             tion in relying on the medical evidence pre-
Reynaud did not submit any evidence of her al-             sented.
leged mental disability, and the record did not
contain evidence that required the ALJ to or-                                     III.
der a CE. We agree. Reynaud did not provide                    Reynaud argues that the testimony by the
any evidence of a mental impairmentSSshe re-               vocational expert (“VE”) does not constitute
lies instead on an analysts’s notes from a                 substantial evidence. She contends that the hy-
phone call with Mayeaux, and the analyst’s                 pothetical question to the vocational expert
recommendation, based on that phone call,                  was flawed because the question omitted con-
that a CE be administered. As found by the                 sideration of the impairments recognized by
district court, however, there are no medical              the ALJ: diabetes mellitus, hypertension, obes-
records to support Mayeaux’s statement.1                   ity, and degenerative joint disease. This argu-
                                                           ment appears to be based on the fact that the
                                                           specific impairments were not mentioned by
   1
                                                           name in the hypothetical question. But, the
     Reynaud correctly notes that we accord con-
                                                           ALJ considered Reynaud’s testimony as well
siderable weight to opinions of the claimant’s per-
sonal physician. Myers v. Apfel, 238 F.3d 617,
                                                           as the impairments evident in her medical rec-
621 (5th Cir. 2001). It is also true, however, that        ords to ascertain her residual functional capac-
                                                           ity, which was included in the hypothetical
   when good cause is shown, less weight, little           question.2 Further, Reynaud’s representative
   weight, or even no weight may be given to the
   physician’s testimony. The good cause excep-
   tions we have recognized include disregarding              1
                                                               (...continued)
   statements that are brief and conclusory, not           evidence and may choose whichever physician’s
   supported by medically acceptable clinical lab-         diagnosis is most supported by the record.”) (citing
   oratory diagnostic techniques, or otherwise un-         Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir.
   supported by the evidence.                              1987)). Mayeaux’s statements are both conclu-
                                                           sional and unsupported by the evidence.
Id. (citing Greenspan v. Shalala, 38 F.3d 232, 237
                                                              2
(5th Cir.1994)). See also Muse v. Sullivan, 925                  The disputed hypothetical question was, in
F.2d 785, 790 (5th Cir. 1991) (“The ALJ as fact-           full, as follows:
finder has the sole responsibility for weighing the
                                      (continued...)                                             (continued...)

                                                       3
thoroughly cross-examined the VE and had
ample opportunity to pose an alternative hypo-
thetical question. Because the hypothetical
question reasonably incorporated the impair-
ments and limitations recognized by the ALJ,
and because Reynaud had the opportunity to
add consideration of other asserted limitations,
there is no error. See Morris v. Bowen, 864
F.2d 333, 336 (5th Cir. 1988).

    Because the Commissioner’s decision deny-
ing Reynaud benefits is supported by substan-
tial evidence and comports with the relevant
legal standards, we AFFIRM the district
court’s decision upholding the decision of the
Commissioner.




   2
    (...continued)
   For each question, please assume that I’m ask-
   ing about someone who has, who is the same
   age and has the same education, the same vo-
   cational background as Ms. Reynaud. For the
   first hypothetical, if I were to find that she has
   the residual functional capacity to perform sim-
   ple, unskilled light work with no detailed in-
   structions, that does not require climbing of lad-
   ders, ropes or scaffold, requires only occasional
   balancing, stooping, kneeling, crouching, and
   crawling with mild limitations in concentration
   and attention, would there be any jobs that she
   could perform in the national or regional econ-
   omy?

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