                                                               United States Court of Appeals
                                                                        Fifth Circuit
                                                                     F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                      November 28, 2005

                                                                 Charles R. Fulbruge III
                                                                         Clerk
                                No. 04-11513
                              Summary Calendar


JOE R. GLASS,

                              Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                              Defendant-Appellee.


            Appeal from the United States District Court
                  for the Northern District of Texas
                        USDC No. 4:04-CV-53-Y


Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.


PER CURIAM:*

      An administrative law judge (“ALJ”) conducted a hearing on the

denial of appellant Glass’ claim for disability benefits under

Title II of the Social Security Act.         The state agency’s reviewing

physician found that Glass could perform medium work.                  The ALJ

reduced that designation, finding that Glass was only capable of

light work.1      Although Glass’ impairments were severe, the ALJ


      *
         Pursuant to the 5TH CIR. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under limited
circumstances set forth in 5TH CIR. R. 47.5.4.
      1
         Glass is a 53 year old man who suffers from ankylosing spondylitis,
colitis, irritable bowel syndrome, atrial fibrillation, recurrent kidney stones,
and renal insufficiency, among other ailments. He retired for medical reasons
from his position as a senior regulatory specialist in the oil and gas industry.
found that they did not meet or equal the criteria of any listed

impairment, necessary to receive disability benefits.2               Moreover,

the ALJ found that Glass was capable of performing his past

relevant work and, therefore, was not disabled for purposes of the

Act.3

        In so deciding, Glass objected to the ALJ’s reliance on the

expert testimony of Dr. Weilepp, a non-examining physician.4                The

Appeals Council denied his petition for review, adopting the ALJ’s

opinion as the final decision, and Glass then filed a timely

request for judicial review.            The district court adopted the

Magistrate    Judge’s    recommendation     and    entered   final    judgment

against Glass.     Glass asserts the same errors on appeal: that the

record was not adequately developed and that the ALJ’s decision is

not supported by substantial evidence.            Additionally, Glass avers

that the district court impermissibly upheld the Commissioner’s


        2
          To determine whether a claimant is disabled, and thus entitled to
disability benefits, a five-step analysis is employed. First, the claimant must
not be presently working at any substantial gainful activity.       Second, the
claimant must have an impairment or combination of impairments that is severe.
Third, disability will be found if claimant’s impairment or combination of
impairments meets or equals an impairment listed in the appendix to the
regulations. Fourth, if disability cannot be found on the basis of claimant’s
medical status alone, the impairment or impairments must prevent the claimant
from returning to his past relevant work. Fifth, the impairment must prevent the
claimant from doing any work, considering the claimant’s residual functional
capacity, age, education, and past work experience. 20 C.F.R. § 404.1520.
        3
         Relying on the testimony of a vocational expert, the ALJ found that
Glass’ previous work did not exceed his limitations, as described by Dr. Weilepp
based on the assessment of Glass’ medical history in the record.
        4
         Even though the ALJ changed the determination in Glass’ favor and a
reversion to the state agency’s assessment would not help Glass, he contends
that, in any event, he lost full and meaningful review of the initial
determination. Additionally, Glass objects to Dr. Weilepp as an expert witness
because of an alleged conflict of interest and since he allegedly lacks the
requisite experience due to a twelve year hiatus from the practice of medicine.
decision based on the post hoc arguments presented by counsel.

       We       review    the   Commissioner’s      decision      independently     and

without assumption that the district court acted correctly.5                         A

denial of disability benefits is reviewed only to determine whether

the Commissioner applied the correct legal standards and whether

the decision is supported by substantial evidence in the record as

a whole.6            Substantial evidence is such relevant evidence as a

reasonable mind might accept to support a conclusion; it is more

than       a    mere   scintilla     and   less   than    a    preponderance   of   the

evidence.7           A finding of no substantial evidence is appropriate

only if no credible evidentiary choices or medical findings support

the decision.8           This Court does not re-weigh the evidence and will

not substitute its judgment for that of the Commissioner.9

       Glass         argues   that   record   was   not       sufficiently   developed

because the ALJ failed to request a physical examination by a

practicing physician, from which a first-hand determination about

his work-related limitations could be made.                     Having only reviewed

the copious exhibits and evidence, Dr. Weilepp never personally

examined Glass.           Therefore, Glass argues that this reliance on Dr.

Weilepp’s expert opinion, lacking a first-hand assessment, deprived



       5
               Dorsey v. Heckler, 702 F.2d 597, 603 (5th Cir. 1983).
       6
               Legget v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
       7
               Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001).
       8
               Id.
       9
               Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
Glass of a de novo hearing10 and that the ALJ merely relied upon the

evidence before the state agency.11           Glass argues that the record

does not contain any conclusions as to the claimant’s functional

limitations due to his illnesses; rather, the record consists of

clinical notes and raw medical data, providing no conclusions as to

the extent of his capacity for work.          As such, Glass contends that

Dr.   Weilepp’s     opinion    cannot      form   the   sole     basis    of    the

determination      of   work    capacity     because    he,    himself,        never

physically examined Glass.         This argument lacks merit.12

      It is true that if the ALJ determines that the record is not

sufficiently developed with evidence from treating physicians, the

ALJ should seek clarification from a physician that has examined

the claimant.13      An ALJ has a duty to develop the facts fully and

fairly, and if he does not satisfy this duty, his decision is not

substantially justified.14 Moreover, the opinion of a non-examining



      10
          Prior administrative determinations are not binding on the ALJ. 20
C.F.R. § 404.905 (initial determinations are binding unless reconsideration is
requested, § 404.921(a) (reconsidered decisions are binding unless an ALJ hearing
is requested, and § 404.1527(f)(2)(i) (ALJ’s “are not bound by any findings made
by State agency medical or psychological consultants”).
      11
          Glass does not point to any instances in which the ALJ deferred to
prior administrative determinations. In fact, the record was supplemented just
prior to the hearing before the ALJ, and, consequently, the ALJ considered
evidence not available at the previous administrative hearings. Glass did not
object to the inadequacy of the record before the ALJ.
      12
          An ALJ has no affirmative duty to redevelop the record, where the
record substantially supports the ruling. It is unchallenged that the record in
the present case includes evidence provided by examining physicians; it is not
incumbent upon the system to automatically order new medical examinations at each
stage of the appeal process in order to provide a full and fair review.
      13
           Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).
      14
           Id. at 458 (5th Cir. 2000).
physician cannot cure an incomplete record.15                      Glass, however,

concedes that the regulations permit the ALJ to use the testimony

of a non-examining physician in assessing the nature and severity

of the claimant’s impairments.16                While it is true that an ALJ

should     have     a   treating     physician’s       opinion,     detailing   the

claimant’s capacity to work, the absence of such a statement does

not automatically invalidate an ALJ’s decision.17                      The proper

inquiry, thus, delves into the substantiality of the evidence on

record to support the ALJ’s ruling.18

      Accordingly,       Glass     contends     that   the   ALJ   inappropriately

relied on Dr. Weilepp’s opinion because it conflicted with the

evidence on record. Other than restating the evidence contained in

the record, Glass provides no evidence of conflict between Dr.

Weilepp’s        testimony   and    that   of    prior   examining     physicians.

Likewise, Glass does not provide any evidence–or even point to the

alleged post hoc arguments–to support his conclusory assertion of

such error.       The circumstances of the present case do not run afoul

of the admonition against the use of              “circuit-riding doctors who




      15
           Id.
      16
          20 C.F.R. 404.1527(f)(2)(iii); See Villa v. Sullivan, 895 F.2d 1019,
1024 (5th Cir. 1990) (stating that an ALJ may rely on a non-examining physician’s
assessment when those findings are based upon careful evaluation of the medical
evidence and do not contradict those of an examining physician).
      17
          Moreover, Glass must demonstrate and makes no showing that the ALJ’s
failure to request additional information from a treating source prejudiced his
case. See Newton, 209 F.3d at 458.
      18
           Ripley, 67 F.3d at 557-58.
never see or examine claimants to defeat their claims.”19                Having

thoroughly reviewed the record, we find that it is amply developed

and that Glass’ residual functional capacity, as determined by the

ALJ, is supported by substantial evidence on the record as a

whole.20

      AFFIRMED.




      19
          Richardson v. Perales, 91 S.Ct. 1420, 1432-33 (1971) (Douglas, J.,
dissenting).
      20
          Additionally, Glass’ two challenges to the use of Dr. Weilepp as an
expert witness also lack merit. Not only did Glass not initially object to Dr.
Weilepp as an expert witness until after his testimony was taken, but there is
no evidence that Dr. Weilepp, as an independent contractor, ever worked on Glass’
case while temporarily employed by Cigna, Glass’ insurer. Second, Dr. Weilepp’s
expertise is not discredited, as a matter of law, simply by his lack of recent
practice.
