           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           May 12, 2008
                                     No. 07-30748
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk




BRENDA P. HYDE,

                                                  Plaintiff-Appellant,
v.

MICHAEL J. ASTRUE, Commissioner of Social Security,

                                                  Defendant-Appellee.




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                No. 2:02-CV-2860




Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*


       Brenda Hyde applied for Social Security disability benefits. An adminis-
trative law judge (“ALJ”) determined, after a hearing, that Hyde was not disa-



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
                                  No. 07-30748

bled as defined in 42 U.S.C. § 423(d)(1)(A), and that became the final decision of
the Commissioner of Social Security. Hyde sought judicial review, and the dis-
trict court affirmed. Hyde appeals, asserting that the Commissioner, through
the ALJ, failed to satisfy his obligation to develop the record. Specifically, Hyde
contends the Commissioner did not abide by his own regulations and re-contact
her treating physician to obtain additional information on realizing that the rec-
ords initially received were inadequate. We agree that the Commissioner did not
comply with the regulations, but Hyde has failed to show she was prejudiced, so
we affirm.


                                        I.
      Hyde applied for disability benefits in June 1999. The amended onset date
for her disability, primarily complications from diabetes, was December 24, 1998.
Her application indicated that she had two primary physicians, William Stall-
worth and Waldo Holt. With Hyde’s permission, the agency requested and of-
fered to pay for her medical records from both doctors. Stallworth submitted rec-
ords spanning 1984 to 1994, and Holt submitted a treatment record from a sin-
gle visit in May 1999. The agency issued an initial denial of Hyde’s claim thirty
days after receiving the application.
      In September 1999, Hyde requested that the agency reconsider its denial
and indicated that she had visited Holt since she first filed her claim. On Sep-
tember 28, the agency received a second record from Holt summarizing her
symptoms and offering his opinion that Hyde was unable to operate a keyboard
for prolonged periods. On November 8, the agency received a letter indicating
Hyde had retained counsel, stating that Hyde was a patient of Holt’s, and re-
questing that the agency procure records from him.
      The agency subsequently directed Hyde to undergo a consultative physical
exam with Dr. Mary Ann Richter on December 15 and a consultative two-dimen-


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sional echo stress exam with Dr. Emmett Chapital on January 24, 2000. On
February 7, the agency issued its denial of Hyde’s claim on reconsideration. The
notice to Hyde indicated that, in denying her claim a second time, the agency re-
lied on the records and reports previously received from Stallworth and Holt and
the reports of Richter and Chapital. The notice further stated that no other
reports were obtained, because those noted above were sufficient to render a
decision on the claim.
      In March, Hyde requested a hearing before an ALJ. In the statement filed
with the request, she indicated she was still under Holt’s care and had seen him
in September and November 1999 and February 2000. On June 23, the agency
notified Hyde of her hearing, scheduled for August 1, 2000; the ALJ issued a pre-
hearing order directing Hyde’s counsel to update all medical evidence, specifi-
cally mentioning that she needed to update any records from Holt. The order
also stated that “[f]ailure to submit any medical evidence will constitute an ac-
knowledgment by claimant and the representative that such documents are not
relevant to the disposition of the case.” Hyde submitted updated records from
the Medical Center of Louisiana on July 17.
      The ALJ conducted the hearing on August 1 and ruled on August 21 that
Hyde was not disabled. On July 25, 2002, the Appeals Council denied Hyde’s
request for review, rendering the ALJ’s decision the Commissioner’s final ad-
ministrative decision. Hyde appeals the district court’s conclusion that the agen-
cy adequately developed the record with respect to her records.


                                       II.
      On appeal, we will uphold an ALJ’s determination that a claimant is not
disabled if it is based on substantial evidence from the record as a whole and if
proper legal standards were applied in consideration of the evidence. See 42
U.S.C. § 405(g); Higginbotham v. Barnhart, 405 F.3d 332, 335 (5th Cir. 2005)

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(citing Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990)). It is the duty of
the ALJ “to develop the record fully and fairly to ensure that his decision is an
informed decision based on sufficient facts.” Brock v. Chater, 84 F.3d 726, 728
(5th Cir. 1996) (citing Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984)).
“When [the ALJ] fails in that duty, he does not have before him sufficient facts
on which to make an informed decision. Consequently, his decision is not sup-
ported by substantial evidence.” Kane, 731 F.2d at 1219. Failure to develop the
record as required by agency regulation means the ALJ failed in his duty to de-
velop the record adequately.1 We will reverse an ALJ’s decision as not supported
by substantial evidence if the claimant shows that (1) the ALJ failed to fulfill his
duty to develop the record adequately and (2) the claimant was prejudiced there-
by. Brock, 84 F.3d at 728.


                                              A.
       Hyde contends that the ALJ violated several agency regulations found in
20 C.F.R. § 404.1512 and therefore failed adequately to develop the record.
First, she asserts that the ALJ violated subsection (d) by failing to make “every
reasonable effort to help [Hyde] get medical reports” from Holt. § 404.1512(d).
The regulation defines “every reasonable effort” to mean that the agency “will
make an initial request for evidence from [the claimant’s] medical source and,
at any time between 10 and 20 calendar days after the initial request, if the evi-
dence has not been received, we will make one followup request to obtain the
medical evidence necessary to make a determination.” § 404.1512(d)(1).
       The agency made initial requests for records from Holt and Stallworth,


       1
         See Chevron Oil Co. v. Andrus, 588 F.2d 1383, 1386 (5th Cir. 1979) (“Accardi stands
for the unremarkable proposition that an agency must abide by its own regulations.”) (citing
Service v. Dulles, 354 U.S. 363, 372 (1957)); Richardson v. Joslin, 501 F.3d 415, 418 (5th Cir.
2007) (noting instances of agency failure to follow regulations resulting in the invalidation of
the agency determination).

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the two treating physicians identified by Hyde, on June 18, 1999. Those re-
quests included that the agency would pay twenty dollars for information re-
ceived within thirty days. In response, Stallworth provided records spanning
from 1984 through 1994, and Holt provided a progress report from May 1999.
       Having requested and received the records, the agency satisfied the re-
quirements of § 404.1512(d). There is no requirement that the agency or the
ALJ, having received some records from Holt, follow up with Holt to ensure that
all relevant records had been sent.2 Additionally, § 404.1512(d) states only that
the agency will develop the record for twelve months preceding the month when
the claimant files an application; thus, records made after the application is filed
are not included.
       Hyde asserts the agency failed to obtain records from September and No-
vember 1999 and February 2000, none of which preceded her application. None-
theless, either the agency requested subsequent records or Holt submitted them
on his own initiative, because the agency received Holt’s September 1999 opinion
after the initial denial but before the denial on reconsideration. By requesting
and receiving medical reports from Holt and Stallworth, the agency and ALJ ful-
filled their obligation to develop the record according to § 404.1512(d).
       Hyde next contends that the agency and ALJ failed to develop the record
in accordance with § 404.1512(e), which addresses the agency’s obligation to re-
contact treating physicians where the evidence received “is inadequate . . . to
determine whether [the claimant is] disabled.” § 404.1512(e). In such a situa-
tion, the agency
       will first recontact [the] treating physician . . . to determine whether
       the additional information . . . need[ed] is readily available. [The
       agency] will seek additional evidence or clarification from [the
       claimant’s] medical source when the report from [the claimant’s]


       2
        See § 404.1512(d)(1) (“[I]f the evidence has not been received, we will make one fol-
lowup request to obtain medical evidence . . . .”) (emphasis added).

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          medical source contains a conflict or ambiguity that must be re-
          solved, the report does not contain all the necessary information, or
          does not appear to be based on medically acceptable clinical and lab-
          oratory diagnostic techniques. [The agency] may do this by request-
          ing copies of [the] medical source’s records, a new report, or a more
          detailed report from [the] medical source . . . .

§ 404.1512(e)(1). The agency, however, “may not seek additional evidence or
clarification from a medical source when [it] know[s] from past experience that
the source either cannot or will not provide the necessary findings.” § 404.1512-
(e)(2).
          The ALJ discounted Holt’s reports because they lacked “clinical findings
or results of objective diagnostic tests that support [his] conclusions and opin-
ions.” That statement expresses the ALJ’s view that Holt’s reports did “not con-
tain all the necessary information” and did “not appear to be based on medically
acceptable clinical and laboratory diagnostic techniques,” § 404.1512(e)(1), condi-
tions expressly triggering the agency’s obligation to re-contact Holt. Without
evidence that the agency knew from past experience that Holt could not or would
not provide such information, the regulation required the ALJ to re-contact Holt.
          The only evidence offered of Holt’s inability or unwillingness to provide
such information is the paltry production resulting from the agency’s first re-
quest to Holt for records. He did provide records (though they were limited in
nature) on the agency’s initial request, and he subsequently provided an addi-
tional record, either on his own or in response to a subsequent request; thus, the
agency has not established that it knew from experience that re-contacting Holt
was futile.
          Instead, the Commissioner asserts it was unnecessary to re-contact Holt,
because the ALJ had determined the evidence before him, namely the report
from Richter’s consultative exam, was adequate to determine whether Hyde was
disabled. That, however, is not the standard found in the regulation for deter-


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mining whether it is necessary to re-contact a treating physician. The duty to
do so is not contingent on the adequacy of the record, but on the adequacy of the
report received from the treating physician. The failure of the agency or ALJ to
re-contact Holt was a violation of agency regulation and, hence, a failure ade-
quately to develop the record; thus, the ALJ’s decision is not supported by sub-
stantial evidence.


                                       B.
      This does not end our inquiry; “[t]he failure of the ALJ to develop an ade-
quate record is not . . . ground for reversal per se.” Kane, 731 F.2d at 1220. The
claimant must also show he was prejudiced by the inadequate record and that,
had the ALJ complied with the regulation, he “could and would have adduced ev-
idence that might have altered the result.” Id. Hyde concedes that she has not
affirmatively stated that additional records from Holt exist. Instead, she argues
that she cannot afford to obtain the records, hence the need for the agency to
procure them, and it would be circular to require her to produce the records as
evidence that she was prejudiced by the agency’s failure to obtain the very same
records.
      Hyde is correct that actual production of the records would be too high a
bar for establishing prejudice. Our requirement, however, is that Hyde show she
could and would have adduced evidence that might have altered the result. Her
concession that the records may not actually exist undermines her claim of pre-
judice, because she cannot assert that she can and will produce the records.
      Additionally, Hyde does not suggest that the additional records would sup-
ply the clinical evidence necessary to justify reliance on Holt’s earlier opinion.
Something more then a speculative assertion that medical records might exist
and might clarify earlier records is necessary, such as perhaps a statement from
the doctor that such records exist and do confirm an earlier diagnosis. Hyde,

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however, did not show any prejudice from the ALJ’s failure to re-contact Holt.
      The judgment is AFFIRMED.




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