Tim Barlow v. Nancy Berryhill, Acting Cmsnr , 700 F. App'x 375 ( 2017 )

Case: 17-10406 Document: 00514228987 Page: 1 Date Filed: 11/07/2017
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
No. 17-10406
Fifth Circuit
FILED
Summary Calendar November 7, 2017
Lyle W. Cayce
TIM C. BARLOW, Clerk
Plaintiff - Appellant
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:15-CV-180
Before KING, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:*
An administrative law judge (“ALJ”) conducted a hearing and found that
plaintiff Timothy Barlow was not “disabled” within the meaning of certain pro-
visions of the Social Security Act. See 42 U.S.C. §§ 416(i), 423(d) (insurance
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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: 17-10406 Document: 00514228987 Page: 2 Date Filed: 11/07/2017
No. 17-10406
benefits); § 1382c(a)(3)(A) (supplemental security income). Barlow sought re-
view in district court, see § 405(g), and the district court affirmed the ALJ’s
finding. Seeing no reversible error, we affirm as well.
Our review “is limited to whether the decision is supported by substan-
tial evidence in the record and whether the proper legal standards were used
in evaluating the evidence.” Graves v. Colvin, 837 F.3d 589, 591–92 (5th Cir.
2016) (quoting Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994)). We will,
however, reverse an ALJ’s decision if the claimant shows (1) that the ALJ failed
in his duty to “fully and fairly” develop the record and (2) the claimant was
prejudiced thereby. Carey v. Apfel, 230 F.3d 131, 142 (5th Cir. 2000); accord
Graves, 837 F.3d at 591–92 (quoting Brock v. Chater, 84 F.3d 726, 728 (5th Cir.
1996)); id. at 592–93 (collecting other cases).
Barlow has not shown that the ALJ denied him the opportunity to cross-
examine the vocational expert. Unlike the claimants in Tanner v. Secretary of
Health & Human Services, 932 F.2d 1110, 1112 (5th Cir. 1991), and Lidy v.
Sullivan, 911 F.2d 1075, 1077 (5th Cir. 1990), Barlow’s attorney cross-exam-
ined the witness at length, addressing all the subject-matter of the ALJ’s ques-
tions (and then some). The ALJ merely curtailed a particular line of question-
ing he deemed cumulative or immaterial. That is not reversible error. Bayer v.
Colvin, 557 F. App’x 280, 286 (5th Cir. 2014); Vaughan v. Shalala, 58 F.3d 129,
132 (5th Cir. 1995); see also Davis v. Colvin, 600 F. App’x 249, 250 (5th Cir.
2015) (ALJ did not “commit[] reversible error by ‘cutting off’ . . . cross-exami-
nation of vocational experts”). Nor has Barlow shown that he suffered any prej-
udice. See, e.g., Hollis v. Mathews, 520 F.2d 338, 340 (5th Cir. 1975) (requiring
showing of prejudice). The truncated line of questioning dealt only with step
five of the applicable five-part test, but the ALJ based his finding on step four—
an independent ground. See Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir.
1995) (five-part test); id. at 565 n.13 (adverse finding at step four renders step
2
Case: 17-10406 Document: 00514228987 Page: 3 Date Filed: 11/07/2017
No. 17-10406
five immaterial). The ALJ also permitted Barlow to supplement his cross-ex-
amination with additional briefing, but Barlow declined the opportunity. In
fact, at every stage of this proceeding, Barlow has failed to describe the type of
evidence he was prevented from eliciting, let alone show that the evidence
would have led to a different result. This alleged cross-examination defect af-
fords no basis for reversal.
Barlow likewise fails to show that the ALJ disregarded his April 2014
diagnosis of depression and borderline personality disorder by two treating
physicians. Although a treating physician’s opinion is entitled to “controlling
weight” unless the ALJ makes specific contrary findings, see 20 C.F.R.
§ 404.1527(c)(2) (2014 1); Newton v. Apfel, 209 F.3d 448, 455–56 (5th Cir. 2000),
that rule is not implicated absent “a conflict in the medical evidence,” Carry v.
Heckler, 750 F.2d 479, 484 (5th Cir. 1985). The ALJ found no conflict here: he
explicitly considered the April 2014 diagnoses and found them “consistent
with” the other medical evidence regarding Barlow’s ability to work. That other
evidence—including the opinions of six medical consultants—tended to show
that, notwithstanding Barlow’s mental health disorders, he retained the ca-
pacity to perform jobs involving “simple, repetitive tasks” and no significant
interpersonal interactions. Because Barlow cites no aspects of the April 2014
diagnoses that cast doubt on his capacity to perform this kind of work, he has
not shown that the ALJ’s finding that no conflict existed was unsupported by
the evidence. Cf. Dise v. Colvin, 630 F. App’x 322, 326 (5th Cir. 2015) (depres-
sion diagnosis not in conflict with finding of claimant’s capacity to work be-
cause “[a] depression diagnosis is not, itself, a functional limitation”).
1 The regulation was amended after the ALJ’s 2014 decision. See Revisions of Rules
Regarding the Evaluation of Medical Evidence, 82 Fed. Reg. 5844, 5869–71 (Jan. 18, 2017)
(amending 20 C.F.R. § 404.1527) (effective Mar. 27, 2017). The changes do not matter here.
3
Case: 17-10406 Document: 00514228987 Page: 4 Date Filed: 11/07/2017
No. 17-10406
Finally, there is no merit to Barlow’s conclusory assertion that the ALJ
improperly relied on the opinions of the non-examining physicians. “[A]n ALJ
may properly rely on a non-examining physician’s assessment when, as in this
case, those findings are based upon a careful evaluation of the medical evidence
and do not contradict those of the examining physician.” Villa v. Sullivan, 895
F.2d 1019, 1024 (5th Cir. 1990). Because Barlow again fails to identify any
inconsistencies between the non-examining physicians’ opinions and any other
medical evidence, he fails to show that the ALJ’s reliance was unsupported by
the record.
The district court’s judgment is AFFIRMED.
4