     Case: 15-30788      Document: 00513459691         Page: 1    Date Filed: 04/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals
                                                                                    Fifth Circuit
                                    No. 15-30788                                  FILED
                                  Summary Calendar                            April 11, 2016
                                                                             Lyle W. Cayce
                                                                                  Clerk
RANDY FRICKEY,

                                                 Plaintiff-Appellant,
v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF
SOCIAL SECURITY,

                                                 Defendant-Appellee.



                  Appeals from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-1922


Before STEWART, Chief Judge, and OWEN and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff-Appellant Randy Frickey appeals the district court’s grant of
summary judgment in favor of Defendant-Appellee Carolyn W. Colvin, Acting
Commissioner of the Social Security Administration (“the Commissioner”),
and dismissing Frickey’s complaint with prejudice. We affirm.




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 15-30788    Document: 00513459691     Page: 2   Date Filed: 04/11/2016



                                 No. 15-30788
                  I. FACTS & PROCEDURAL HISTORY
      Randy Frickey (“Frickey) was born on August 13, 1986, to Linda and
Rickey Frickey in Waggaman, Louisiana. Frickey was in special education
programs growing up and ultimately stopped school at some point in the eighth
grade. According to the record, Frickey obtained his general education diploma
through a computer course. Throughout his life, Frickey has continued to live
with his parents and occasionally with friends for short periods of time.
Frickey has attempted a number of odd jobs but has been terminated from
every job he has had for various reasons, ranging from his lack of friendliness
to his lack of ability.   Frickey has temper, behavioral, and concentration
problems but is capable of feeding himself and taking care of his own basic
needs such as dressing and bathing. According to his past school reports, he
is learning disabled and speech impaired. The record reflects that he obtained
a driver’s license but crashed his vehicle into a tree after drinking a daiquiri.
The record also indicates that he likes to play pool, although he has difficulty
socializing with others. He has been diagnosed with osteoporosis and has
received various medications as treatment over time, including but not limited
to muscle relaxers.
      In early 2011, Frickey began to see various medical professionals for his
osteoporosis, borderline intellectual functioning, and ADHD conditions. In
May 2011, Frickey submitted an application for social security benefits which
was subsequently denied. In August 2011, Frickey underwent a psychological
evaluation by developmental psychologist Christine B. Powanda, Ph.D., who
determined that he had a full scale intelligence quotient (“IQ”) of 71. She found
that his intellectual functioning fell within the borderline range and that his
test performance may have been negatively impacted by his attention deficit
hyperactive disorder (“ADHD”) symptoms.             In December 2011, the


                                       2
    Case: 15-30788    Document: 00513459691     Page: 3   Date Filed: 04/11/2016



                                 No. 15-30788
Administrative Law Judge (“ALJ”) issued a decision finding that Frickey had
not been under disability through the date of the decision.
      In March 2012, Frickey submitted another application for benefits as
well as a claim for supplemental security income, reporting that he became
unable to work in February 2011, listing osteoporosis and ADHD as his
disabling conditions. See 42 U.S.C. §§ 423 & 1382(a). The determination once
again was not disabled.
      In June 2012, at the request of his attorney, Frickey was evaluated by
Dr. Leonard Culver, Ph.D., to determine his eligibility for disability benefits.
At that time Dr. Culver determined that Frickey had severe dependent
personality disorder with a long history of ADHD and borderline intellectual
functioning.
      During a hearing in May 2013, Frickey requested a finding of current
disability. In June 2013, the ALJ issued a decision finding that Frickey was
not disabled through the date of decision. After the ALJ issued its decision,
Frickey returned to Dr. Culver in December 2013 for a second evaluation.
Upon examining Frickey for the second time, Dr. Culver reported that his test
results indicated a full scale IQ of 62, as well as continued dependence with
borderline intellectual functioning and ADHD symptoms.
      Frickey produced Dr. Culver’s December 2013 report to the Appeals
Council. In June 2014, the Appeals Council denied his request for review,
stating that it had taken into account the report in considering Frickey’s
request. In August 2014, Frickey filed a complaint in federal court. Shortly
thereafter, both parties filed cross-motions for summary judgment.
      The district court granted summary judgment in favor of the
Commissioner and dismissed Frickey’s complaint with prejudice.            In its




                                       3
    Case: 15-30788      Document: 00513459691      Page: 4    Date Filed: 04/11/2016



                                   No. 15-30788
opinion 1, the district court held that there was substantial evidence in the
record to support the Commissioner’s determination that Frickey was not
disabled and that the ALJ did not fail to follow the proper legal standard in
considering the evidence. See 20 C.F.R. § 404.1520; Perez v. Barnhart, 415
F.3d 457, 461 (5th Cir. 2005). Specifically, the district court agreed with the
ALJ’s finding that neither Frickey’s physical impairment of osteoporosis, nor
his mental impairments (ADHD and borderline intellectual functioning), met
the requirements for Section 12.05 of the Listing of Impairments (“the
Listings”). See 20 C.F.R. Pt. 404, Subpart P, App’x 1 – 12.05.
      In its discussion of these issues, the district court noted Dr. Culver’s
December 2013 report, observing that Frickey failed to obtain the report until
after the ALJ had rendered its unfavorable decision but, nevertheless, was able
to provide the report to the Appeals Council, who stated that they had taken
the report into account in considering and ultimately denying the request for
review. The district court concluded that the report was unlikely to have
changed the outcome of the Commissioner’s determination and that the report
did not satisfy the criteria for remand. See Haywood v. Sullivan, 888 F.2d
1463, 1471-72 (5th Cir. 1989) (citations omitted).
      Frickey filed this appeal.
                                II. DISCUSSION
      “Our 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, 415 F.3d at 461 (citation omitted). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a



      1 The district court adopted as its opinion the report and recommendation of the
magistrate judge.
                                          4
    Case: 15-30788     Document: 00513459691      Page: 5   Date Filed: 04/11/2016



                                  No. 15-30788
conclusion.” Id. (internal quotation marks and citation omitted). It must be
“more than a mere scintilla and less than a preponderance.” Id. (citation
omitted). “In applying the substantial evidence standard, the court scrutinizes
the record to determine whether such evidence is present, but may not reweigh
the evidence or substitute its judgment for the Commissioner’s.” Id. (citations
omitted). Conflicts of evidence are not for the courts, but for the Commissioner
to resolve. Id. (citation omitted). “If the Commissioner’s fact findings are
supported by substantial evidence, they are conclusive.” Id. (citation omitted).
      A claimant bears the burden of proving that he suffers from a disability
which 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 result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months.” Id. (internal quotation
marks and citation omitted). “Substantial gainful activity is defined as work
activity involving significant physical or mental abilities for pay or profit.” Id.
(citation omitted). The ALJ uses a five-step analysis in evaluating claims of
disability: “(1) whether the claimant is currently engaged in substantial
gainful activity (whether the claimant is working); (2) whether the claimant
has a severe impairment; (3) whether the claimant’s impairment meets or
equals the severity of an impairment listed in 20 C.F.R., Part 404, Subpart B,
Appendix 1; (4) whether the impairment prevents the claimant from doing past
relevant work (whether the claimant can return to his old job); and (5) whether
the impairment prevents the claimant from doing any other work.” Id. (citing
20 C.F.R. § 404.1520). “The claimant bears the burden of proof on the first four
steps, and then the burden shifts to the Commissioner on the fifth step to show
that the claimant can perform other substantial work in the national
economy.”    Id. (citations omitted). “Once the Commissioner makes this
showing, the burden shifts back to the claimant to rebut this finding.” Id.
                                        5
    Case: 15-30788     Document: 00513459691     Page: 6   Date Filed: 04/11/2016



                                  No. 15-30788
(citation omitted). If the Commissioner can determine whether the claimant
is disabled at any of these steps, the analysis ends. Id. (citing 20 C.F.R. §
404.1520(a)).
      On appeal, Frickey first argues that the ALJ failed to apply the correct
standard by neglecting to make adequate findings about whether his
impairments met the Section 12.05 of the Listings. See 20 C.F.R. Pt. 404,
Subpart P, App’x 1 – 12.05. Frickey further argues that the district court erred
by improperly making findings of fact outside the scope of its authority, thus
impermissibly substituting its own judgment for that of the Commissioner.
Second, Frickey argues that the Appeals Council erred by neglecting to
evaluate new and material evidence provided in Dr. Culver’s 2013 report which
refuted the basis, or at minimum casts doubt, on the ALJ’s findings. We
disagree.
      Our review of the record indicates that the district court properly held
that the ALJ applied the correct standard in determining that Frickey’s
impairments did not meet the requirements for Section 12.05 of the Listings.
See 20 C.F.R. Pt. 404, Subpart P, App’x 1 – 12.05A. As noted by the district
court, in applying the five-step sequential analysis provided in Section
404.1520 to evaluate Frickey’s claim of disability, the ALJ embarked on a
detailed review of Frickey’s medical history and evaluationsboth mental and
physicalas well as his educational, familial, social, and employment
background and history. 20 C.F.R. § 404.1520; Perez, 415 F.3d at 461.          In
reviewing the ALJ’s analysis, the district court also provided a lengthy
explanation with respect to its holding in agreement with that analysis and
concluded that Frickey’s impairments did not satisfy the threshold
requirement for Section 12.05 of the Listings.        The district court noted
Frickey’s possession of a driver’s license and his ability to care for himself and
to assist with the upkeep of his residence. While acknowledging his social
                                        6
    Case: 15-30788      Document: 00513459691       Page: 7    Date Filed: 04/11/2016



                                    No. 15-30788
difficulties, the district court pointed out that Frickey had a past girlfriend and
had plans to attend a cousin’s bachelor party and a pool tournament in Las
Vegas. The district court further looked to the medical reports which indicated
that his physical pain was controlled to the extent that he could walk his dog
and play pool regularly. We see no error in the district court’s conclusion that
these facts and reports are substantial evidence in support of the notion that
Frickey did not suffer overly extensive deficits in adaptive functioning, in spite
of his learning difficulties. Id. at 461-62.
      Frickey’s second argument that the Appeals Council erred by neglecting
to provide a detailed evaluation of Dr. Culver’s December 2013 report also fails.
The Appeals Council stated without further explanation that it had considered
Dr. Culver’s December 2013 report in its denial of Frickey’s request for review.
As noted by the district court, this court has acknowledged that the previously
mandated requirement of the Appeals Council to engage in a detailed
discussion of evidence 2 was suspended by a 1995 memorandum from the
Executive Director of Appellate Operations. See Higginbotham v. Barnhart,
405 F.3d 332, 335, n.1. (5th Cir. 2005) (citation omitted). Furthermore, as
correctly echoed by the district court, this court also held in Higginbotham that
the evidence submitted by the claimant to the Appeals Council should be
reviewed by the district court because it is part of the record. Id. at 337-38
(emphasis added).
      It so follows here that the district court properly considered Dr. Culver’s
December 2013 report. It was also reasonable for the district court to conclude
that, because the December 2013 report echoed the findings of the June 2012
report 3 that had been previously considered by the Commissioner in making


      2 See Epps v. Harris, 624 F.2d 1267, 1272-73 (5th Cir. 1980).
      3  Like the December 2013 report, the June 2012 report concluded that Frickey had
borderline intellectual functioning and ADHD symptoms
                                          7
    Case: 15-30788    Document: 00513459691    Page: 8   Date Filed: 04/11/2016



                                No. 15-30788
an ultimate determination of no disability, reviewing the 2013 report would
not have changed that determination and, thus, remand was not appropriate.
See 20 C.F.R. Pt. 404, Subpart P, App’x 1 – 12.05; Haywood, 888 F.2d at 1471-
72. For these reasons, we see no error in the district court’s holding that the
Appeals Council did not err in failing to provide a detailed evaluation of Dr.
Culver’s December 2013 report. Higginbotham, 405 F.3d at 335, n.1.
                             III. CONCLUSION
      For the foregoing reasons, we affirm the district court’s summary
judgment in favor of the Commissioner, dismissing with prejudice the claims
of Plaintiff-Appellant Randy Frickey.




                                        8
