Filed: Feb. 19, 2020
Latest Update: Mar. 03, 2020
Summary: Case: 19-10523 Document: 00515314721 Page: 1 Date Filed: 02/19/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-10523 February 19, 2020 Summary Calendar Lyle W. Cayce Clerk PHYLLIS S. RUSSO, Plaintiff - Appellant v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee Appeal from the United States District Court for the Northern District of Texas USDC No. 3:18-CV-478 Before CLEMENT, ELROD, and OLDHAM, Circ
Summary: Case: 19-10523 Document: 00515314721 Page: 1 Date Filed: 02/19/2020 IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED No. 19-10523 February 19, 2020 Summary Calendar Lyle W. Cayce Clerk PHYLLIS S. RUSSO, Plaintiff - Appellant v. ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee Appeal from the United States District Court for the Northern District of Texas USDC No. 3:18-CV-478 Before CLEMENT, ELROD, and OLDHAM, Circu..
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Case: 19-10523 Document: 00515314721 Page: 1 Date Filed: 02/19/2020
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 19-10523 February 19, 2020
Summary Calendar
Lyle W. Cayce
Clerk
PHYLLIS S. RUSSO,
Plaintiff - Appellant
v.
ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:18-CV-478
Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:*
Phyllis Russo sought judicial review of an unfavorable decision by the
Commissioner of Social Security Administration on her application for
disability insurance benefits under the Social Security Act. The district court
affirmed the Commissioner’s decision. Seeing no reversible error, we affirm the
district court’s judgment.
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 19-10523 Document: 00515314721 Page: 2 Date Filed: 02/19/2020
No. 19-10523
I.
Phyllis Russo applied for a period of disability and disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. § 423, alleging that
she is disabled. The relevant timeframe for Russo’s application is from March
1, 2011, the alleged onset date, through December 31, 2012, the date when her
insured status expired. After the Commissioner of the Social Security
Administration denied her application, Russo requested a hearing before an
administrative law judge (“ALJ”). Russo appeared and testified at the hearing,
as did an impartial vocational expert.
Reviewing her claim under the familiar five-step analysis, 1 the ALJ
concluded that Russo was not “disabled” within the meaning of the Act during
the relevant timeframe. In particular, the ALJ determined that Russo did not
have an impairment or combination of impairments that met or medically
equaled the severity of any impairment listed in the social security regulations.
In addition, although Russo was unable to return to her past job as a
chiropractor, the ALJ determined that she was capable of performing other
jobs that exist in significant numbers in the national economy.
Russo appealed the ALJ’s decision to the Appeals Council, which denied
her request for review. As a result, the ALJ’s decision became the final decision
of the Commissioner. Russo then filed this action for judicial review pursuant
to 42 U.S.C. § 405(g). The case was referred to a magistrate judge, who issued
a thorough report and recommendation concluding that the decision was
1 See, e.g., Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005) (“The ALJ uses a five-
step sequential analysis to evaluate 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 [P], 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.”); see also 20 C.F.R. § 404.1520(a)(4).
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No. 19-10523
supported by substantial evidence and that the Commissioner applied the
proper legal standard. Russo did not object to the magistrate judge’s report and
recommendation. The district court reviewed the magistrate judge’s report and
recommendation for plain error, adopted the report and recommendation as its
own order, and entered a judgment affirming the Commissioner’s decision.
This appeal followed.
II.
Judicial review of the Commissioner’s denial of disability insurance
benefits “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.” Copeland v. Colvin, 771 F.3d
920, 923 (5th Cir. 2014) (quoting
Perez, 415 F.3d at 461). “A finding of no
substantial evidence is appropriate only if no credible evidentiary choices or
medical findings support the decision.” Salmond v. Berryhill,
892 F.3d 812, 819
(5th Cir. 2018) (quoting Whitehead v. Colvin,
820 F.3d 776, 779 (5th Cir. 2016)).
In applying the substantial-evidence standard, “[t]he court does not reweigh
the evidence in the record, try the issues de novo, or substitute its judgment
for the Commissioner’s, even if the evidence weighs against the
Commissioner’s decision.” Newton v. Apfel,
209 F.3d 448, 452 (5th Cir. 2000).
Russo failed to object to the magistrate judge’s report and
recommendation. “A party’s failure to object to a magistrate judge’s report and
recommendation restricts the appeals court to a ‘plain error’ standard of
review.” Longoria ex rel. M.L. v. San Benito Indep. Consol. Sch. Dist., 942 F.3d
258, 270 (5th Cir. 2019); see also Douglass v. United Servs. Auto. Ass’n,
79 F.3d
1415, 1428 (5th Cir. 1996) (en banc), superseded on other grounds by 28 U.S.C.
§ 636(b)(1). The magistrate judge’s report and recommendation cited Douglass
and advised Russo of the consequences of her failure to object. Accordingly, we
review the district court’s judgment for plain error.
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III.
Russo’s issue statement is vague, and her brief conflates distinct issues,
making it difficult to understand her arguments. We understand Russo to
challenge the ALJ’s decision on two grounds: (1) the ALJ failed to consider
certain medical records and evaluations, and (2) the ALJ failed to consider the
totality of her impairments in combination when determining whether her
combination of impairments is medically equivalent to an impairment listed in
the social security regulations. These arguments are without merit.
A.
Russo contends that the ALJ failed to consider several medical records
and evaluations submitted in connection with her application. She bases this
argument on the fact that these records were not specifically identified in the
list of exhibits attached to the ALJ’s decision. But the list of exhibits attached
to the ALJ’s decision identifies hundreds of pages of medical records, which
include each of the records that Russo references. And an examination of the
ALJ’s decision reveals that the ALJ did consider this evidence.
In fact, the ALJ specifically discussed these records and explained what
weight she afforded them. She gave limited or no weight to the opinions in
many of these records because they concerned treatment long after Russo’s
date last insured and there was no indication that the opinions related to
Russo’s condition during the relevant time period. Because Russo bore the
burden of proving that she was disabled before the expiration of her insured
status, evidence describing her condition after her date last insured is not
relevant. See Torres v. Shalala, 48 F.3d 887, 894 n.12 (5th Cir. 1995); see also
Fabian v. Berryhill, 734 F. App’x 239, 243 (5th Cir. 2018) (unpublished)
(holding that the Commissioner did not err by failing to give controlling weight
to opinions of physicians who had not treated the claimant during the relevant
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period and did not refer to her condition during the relevant period); McLendon
v. Barnhart, 184 F. App’x 430, 431 (5th Cir. 2006) (unpublished) (same). 2
Only one of the purportedly disregarded records was from the relevant
timeframe: a gastrointestinal pathology report from March 2012. The ALJ
cited this report and acknowledged that Russo underwent a colonoscopy in
2012. But the results of the colonoscopy were unremarkable, and Russo points
to no evidence that she was diagnosed with or treated for colitis, chronic
constipation, or chronic fatigue. And as the ALJ pointed out, there is no
evidence that any symptoms related to those conditions did or could last for
the twelve-month durational requirement. See 20 C.F.R. § 416.909.
Even if the ALJ failed to consider certain records, Russo has not met her
burden of showing that any error was prejudicial. “‘Procedural perfection in
administrative proceedings is not required’ as long as ‘the substantial rights of
a party have not been affected.’” Audler v. Astrue, 501 F.3d 446, 448 (5th Cir.
2007) (quoting Mays v. Bowen,
837 F.2d 1362, 1364 (5th Cir. 1988)). An ALJ’s
failure to consider evidence is ground for reversal “only if the applicant can
show prejudice.” Garcia v. Berryhill,
880 F.3d 700, 704 (5th Cir. 2018). To
establish prejudice, the plaintiff must show that the omitted material “might
have altered the result.”
Id. (quoting Brock v. Chater,
84 F.3d 726, 728 (5th
Cir. 1996)). Because Russo does not explain the import of the supposedly
omitted records or how they “would somehow swing the evidentiary pendulum
in [her] favor,”
id. at 705, Russo fails to show that she was prejudiced by the
ALJ’s alleged failure to consider that evidence.
2 Similarly, the ALJ rejected the opinions of a treating physician’s assistant and a
chiropractor because, besides there being no indication of treatment during the alleged period
of disability, these opinions were not rendered by “acceptable medical sources” under the
social security regulations and were inconsistent with other medical evidence from the
relevant time period. See Young v. Berryhill, 689 F. App’x 819, 821–22 (5th Cir. 2017)
(unpublished) (citing 20 C.F.R. § 416.913(a), (d) (2013)).
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B.
Russo also challenges the ALJ’s finding that she did not have any
impairment or combination of impairments that meets or equals the severity
of an impairment listed in the social security regulations. See 20 C.F.R. pt. 404,
subpt. P, app. 1. In making this determination, “the ALJ must analyze both
the ‘disabling effect of each of the claimant’s ailments’ and the ‘combined effect
of all of these impairments.’” Loza v. Apfel, 219 F.3d 378, 399 (5th Cir. 2000)
(quoting Fraga v. Bowen,
810 F.2d 1296, 1305 (5th Cir. 1987)). Russo argues
that the ALJ analyzed her alleged impairments individually and merely gave
“lip service” to the requirement to consider their combined effects. We find this
argument unpersuasive.
First, Russo has the burden of establishing that her combination of
impairments meets or equals “all of the specified medical criteria” of a listed
impairment. Whitehead, 820 F.3d at 781 (quoting Sullivan v. Zebley,
493 U.S.
521, 530 (1990)); see also Selders v. Sullivan,
914 F.2d 614, 619 (5th Cir. 1990).
Yet, Russo points to no evidence showing that she could meet or equal every
requirement of a listing. See Heck v. Colvin, 674 F. App’x 411, 414–15 (5th Cir.
2017) (unpublished) (holding claimant failed to meet her burden because she
did not explain how her symptoms aligned with the criteria of a listing). In fact,
Russo does not identify a single listing to which her combination of
impairments is allegedly equivalent. Thus, she has not met her burden.
Second, the ALJ’s decision demonstrates that she properly considered
Russo’s impairments in combination. The ALJ specifically stated that the
severity of Russo’s impairments, “considered singly and in combination, does
not meet or medically equal the criteria of any impairment listed in Appendix
1.” Our review of the record reveals this is not simply a rote statement. See
Owens v. Heckler, 770 F.2d 1276, 1282 (5th Cir. 1985) (holding the ALJ did not
fail to consider the cumulative effect of the claimant’s impairments where the
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ALJ stated that the impairments, “taken singly or in combination,” do not meet
or equal a listed impairment, and the record supported the ALJ’s conclusion).
After careful consideration of the evidence, the ALJ determined that
Russo’s impairments did not meet or equal the criteria of listing 1.02 (major
disfunction of a joint) or listing 12.06 (anxiety and obsessive-compulsive
disorders) and explained how she reached those conclusions. This analysis
satisfies the proper legal standard required under our jurisprudence. Cf.
Audler, 501 F.3d at 448 (holding the ALJ erred by summarily concluding that
the claimant’s impairments did not meet or equal a listed impairment, without
identifying the listed impairment for which the claimant’s symptoms failed to
qualify or providing any explanation as to how she reached her conclusion); see
also Belk v. Colvin, 648 F. App’x 452, 454–55 (5th Cir. 2016) (unpublished). In
addition, the ALJ specifically considered the “combined effects” of all of Russo’s
medically determinable impairments in determining Russo’s residual
functional capacity. See Giles v. Astrue, 433 F. App’x 241, 245 (5th Cir. 2011)
(unpublished) (holding that the ALJ properly considered the “combined effects”
of a claimant’s impairments where the ALJ incorporated the combination of
impairments into his residual functional capacity determination).
In light of the highly deferential standard of review and Russo’s failure
to develop her argument or support it by citing to any relevant authority, we
find that the ALJ fully comported with the requirement that she consider the
combined effect of Russo’s impairments, and substantial evidence supports the
ALJ’s conclusion that the combination of Russo’s impairments did not meet or
equal an impairment listed in the regulations.
IV.
Our review of the parties’ briefs, applicable law, and relevant portions
of the record discloses no reversible error. We AFFIRM the district court’s
judgment.
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