Case: 15-30760      Document: 00513480626         Page: 1    Date Filed: 04/26/2016




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

                                      No. 15-30760
                                                                                   Fifth Circuit

                                                                                 FILED
                                                                             April 26, 2016

ANTHONY JAMAL THERIOT,                                                      Lyle W. Cayce
                                                                                 Clerk
                            Plaintiff - Appellant

v.

CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,

                            Defendant - Appellee



                   Appeal from the United States District Court
                       for the Middle District of Louisiana
                              USDC No. 3:14-CV-36


Before STEWART, Chief Judge, and JONES and DENNIS, Circuit Judges.
PER CURIAM:*
       Anthony Jamal Theriot (“Theriot”) appeals a decision denying him
benefits under Title II of the Social Security Act, 42 U.S.C. § 423. He claims




       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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                                  No. 15-30760
disability as of April 7, 1992, his date of birth, due to hydrocephalus. Finding
no reversible error of fact or law, we affirm.
      After the Commissioner denied his application for benefits, he received
a hearing before an Administrative Law Judge (“ALJ”).           Theriot chose to
represent himself pro se at the hearing, even after the ALJ informed him of his
right to counsel.
      The ALJ considered medical evidence in the form of a consultative
examination performed by Dr. Levie Johnson approximately ten months prior
to the hearing. It indicated that Theriot was diagnosed with hydrocephalus at
birth and had a shunt placed to treat it when he was one month old. He had
four subsequent shunt revision surgeries, one at age three months, one at age
six months, and two in 2003 when he was approximately 11 years old.
Dr. Johnson’s examination indicated that these treatments did not affect
Theriot’s ability to function at home, at school, or during other activities. The
ALJ also considered a function report that Theriot filled out, which confirmed
that his condition did not significantly interfere with his ability to function in
daily life. Still, the ALJ initially ordered another consultative examination be
performed, but it was subsequently cancelled. Theriot testified at the hearing
about his condition, daily activities, and that he did not drink alcohol. The ALJ
apparently confused him with another petitioner, asking Theriot why the
doctor would say he drank two quarts of vodka per week.
      The ALJ’s subsequently-issued written report evaluated Theriot’s claim
using the “five-step sequential analysis”:
      (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

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                                  No. 15-30760
      (whether the claimant can return to his old job); and (5) whether
      the impairment prevents the claimant from doing any other work.


Perez v. Barnhart, 

, 461 (5th Cir. 2005) (citations omitted); see also
20 C.F.R. § 404.1520(a)(4). The ALJ denied his claim at Step Two. It found
that his hydrocephalus was a medically determinable impairment, but that the
impairment was not “severe.”         See 20 C.F.R. § 404.1520(c); 20 C.F.R.
§ 416.920(c); Stone v. Heckler, 

, 1101 (5th Cir. 1985).
      Now counseled, Theriot appealed to the Appeals Council.           It denied
Theriot’s request    for review,    rendering    the   ALJ’s   decision as the
Commissioner’s final administrative action. He further appealed to the district
court pursuant to 42 U.S.C. § 405(g), which affirmed the ALJ’s decision for the
Commissioner. At each step, he attempted to submit additional medical and
non-medical evidence to support his claim. He now appeals to this Court.
      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. Substantial
      evidence is such relevant evidence as a reasonable mind might
      accept as adequate to support a conclusion. It is more than a mere
      scintilla and less than a preponderance.          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.
      Conflicts of evidence are for the Commissioner, not the courts, to
      resolve. If the Commissioner's fact findings are supported by
      substantial evidence, they are conclusive.

(internal citations and quotations omitted). Applying
these standards, we affirm the ALJ’s decision.
      Theriot’s principal argument is that the ALJ’s decision was not
supported by substantial evidence because the ALJ failed in his duty to fully
and fairly develop the record. See Brock v. Chater, 

, 728 (5th Cir.

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                                 No. 15-30760
1996). The ALJ owes a heightened duty when a claimant appears pro se at the
hearing. 

reverse the decision of an ALJ as not supported by
substantial evidence if the claimant shows (1) that the ALJ failed to fulfill his
duty to adequately develop the record, and (2) that the claimant was prejudiced
thereby.” 

Theriot claims the ALJ fell short of this duty
by (1) not considering or seeking additional medical evidence from his treating
physicians; (2) not following through on its initial order for the second
consultative examination; (3) not considering his history of receiving disability
benefits as a child; and (4) confusing him with another claimant, as evidenced
by the questions regarding alcohol.
      Theriot also makes an additional argument that the district court should
have remanded the case to consider additional evidence such as that proffered
at each stage of his appeals. See 42 U.S.C. § 405(g) (The district court “may at
any time order additional evidence to be taken before the Commissioner of
Social Security, but only upon a showing that there is new evidence which is
material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.” (emphasis added)).
      After a careful review of the briefing and the record, we agree with the
district court and magistrate judge that the record does not support Theriot’s
arguments that the ALJ failed to fulfill his duty to fully and fairly develop the
record or that Theriot was prejudiced by the ALJ’s alleged failures. Much of
the additional evidence Theriot proffered was cumulative of what the ALJ
already had before him, and the other charged shortcomings are either legally
irrelevant or did not form the basis of the ALJ’s decision. Additionally, we
agree with the courts below that the case need not have been remanded for
consideration of the additional evidence presented to them on appeal. It would
not be new or material, nor has Theriot shown good cause for why it was not
presented to the ALJ in the first instance. See 42 U.S.C. § 405(g).
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                          No. 15-30760
 For these reasons, the judgement is AFFIRMED.




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