Full Opinion (html_with_citations)

Case: 20-60856     Document: 00516109588         Page: 1     Date Filed: 11/29/2021




           United States Court of Appeals
                for the Fifth Circuit                                    United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                  No. 20-60856                           November 29, 2021
                                                                           Lyle W. Cayce
                                                                                Clerk
   Arthur Webster,

                                                           Plaintiff—Appellant,

                                       versus

   Kilolo Kijakazi, Acting Commissioner of Social
   Security,

                                                           Defendant—Appellee.


                  Appeal from the United States District Court
                    for the Northern District of Mississippi
                            USDC No. 3:19-CV-97


   Before Elrod, Southwick, and Costa, Circuit Judges.
   Leslie H. Southwick, Circuit Judge:
          The district court affirmed the decision of the Social Security
   Commissioner to deny disability benefits to Arthur Webster. On appeal,
   Webster argues that the Administrative Law Judge erred in assessing his
   Residual Function Capacity and failed to develop the record by declining to
   order a Consultative Exam. Webster also argues that the Administrative Law
   Judge failed to analyze his impairments under the proper listing and failed to
   consider whether he could maintain employment, assuming he could find any
   at all. We AFFIRM.
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                                   No. 20-60856


                     FACTUAL AND PROCEDURAL HISTORY
          Arthur Webster is a former truck driver, combat rifle crew member in
   the U.S. Army, mechanic, and production assembler. He has a high school
   education and some college. Webster served in Iraq where he witnessed
   several traumatic events, including the death of a friend and the
   endangerment of Iraqi children. He suffered from posttraumatic stress
   disorder (“PTSD”) following these events and was admitted into a PTSD
   Residential Rehabilitation Treatment Program for over a month in 2016. He
   also complains of numerous physical impairments including knee, foot, and
   back pain.
          On March 19, 2019, Webster applied for Title II Social Security
   disability insurance benefits, alleging physical and mental impairments that
   began in March of 2016. Webster was 43 years old at the time of the alleged
   onset of his disability and 46 years old at the time of his hearing. Webster’s
   application for benefits was denied initially and upon reconsideration.
   Thereafter, Webster requested a hearing before an Administrative Law Judge
   (“ALJ”).      Though he found that Webster suffered from various
   impairments, the ALJ denied benefits on the grounds that none of the
   impairments met or exceeded the severity of the listing requirements under
   the applicable regulations. Additionally, the ALJ found that Webster could
   perform relevant past work as an assembler or perform various light effort,
   limited contact jobs suggested by a vocational expert.
          Webster timely appealed the denial to the district court. The parties
   consented to a hearing before a magistrate judge, and that judge affirmed the
   ALJ’s decision. Webster timely appealed.
                                  DISCUSSION
          This court reviews a Commissioner’s denial of social security
   disability benefits “only to ascertain whether (1) the final decision is




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   supported by substantial evidence and (2) whether the Commissioner used
   the proper legal standards to evaluate the evidence.” Keel v. Saul,
986 F.3d 551, 555
 (5th Cir. 2021) (quotation marks and citation omitted). Substantial
   evidence is merely enough that a reasonable mind could arrive at the same
   decision; though the evidence “must be more than a scintilla[,] it need not
   be a preponderance.” Taylor v. Astrue,
706 F.3d 600, 602
 (5th Cir. 2012)
   (quotation marks and citation omitted).
          To determine whether a claimant is disabled, the Commissioner’s
   analysis proceeds along five steps. See
20 C.F.R. § 404.1520
(a)(4). The
   Commissioner considers (1) whether the claimant is engaged in “substantial
   gainful activity,” (2) the severity and duration of the claimant’s impairments,
   (3) whether the claimant’s impairment “meets or equals” one of the listings
   in the relevant regulations, (4) whether the claimant can still do his “past
   relevant work,” and (5) whether the impairment prevents the claimant from
   doing any relevant work.
Id.
 The claimant bears the burden on the first four
   steps. See Keel,
986 F.3d at 555
. If the claimant advances that far, the burden
   shifts to the Commissioner to “prove the claimant’s employability.”
Id.
          On appeal, Webster argues that the ALJ erred for several reasons
   relating loosely to Steps 3 through 5 of the sequential evaluation process.
   These arguments can be reduced to three categories: (1) disputes about the
   validity of the Residual Functional Capacity (“RFC”); (2) arguments that a
   Consultative Exam should have been ordered; and (3) arguments raised for
   the first time on appeal regarding the listing impairments and Webster’s
   ability to maintain work. We consider the arguments in that order.
   I.     The RFC was supported by substantial evidence.
          First, Webster argues that the ALJ’s RFC was not supported by
   substantial evidence because the ALJ failed to incorporate allegedly more
   restrictive portions of a state agency report prepared by Dr. Angela Herzgog




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   and failed to accord proper weight to Webster’s examiner, Dr. Charles Small.
   Webster argues further that the allegedly faulty RFC corrupted the ALJ’s
   hypothetical questioning of the vocational expert.
          An “ALJ is responsible for determining an applicant’s residual
   functional capacity.” Ripley v. Chater,
67 F.3d 552, 557
 (5th Cir. 1995). In
   doing so, an ALJ examines the medical evidence in the record, including the
   testimony of physicians and the claimant’s medical records. See
id.
 An ALJ
   usually cannot reject a medical opinion without some explanation. See
   Kneeland v. Berryhill,
850 F.3d 749, 760
 (5th Cir. 2017).
          Notably, though, ALJs are no longer required to give controlling
   weight to a treating physician’s opinion, as was mandated by federal
   regulations and our caselaw in the past. Compare
20 C.F.R. § 404.1527
   (2016), with
20 C.F.R. § 404
.1520c; see also
82 Fed. Reg. 5853
 (Jan. 18, 2017)
   (commenting that the rule change would enable courts to focus on “the
   content of the evidence [rather] than on the source.”). For claims filed after
   March 27, 2017, an ALJ instead considers a list of factors in determining what
   weight, if any, to give a medical opinion.
20 C.F.R. § 404
.1520c. The most
   important factors in determining the persuasiveness of a medical source are
   whether the source’s medical opinion is based on “objective medical
   evidence and supporting explanations” and the “consistency” of the
   source’s opinion with the evidence from other medical and nonmedical
   sources in the claim.
Id.
          The ALJ in these proceedings relied on the state agency’s 2018
   assessment, finding it “persuasive” because it was supported by the evidence
   and consistent with Webster’s other records. The state agency found that
   Webster had the capacity to maintain attention and concentration “for two
   hour periods . . . without excessive interruption from psychological
   symptoms” and could “interact adequately, on a limited basis, receive non-




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   confrontational supervision, and make mental adaptions to complete
   unskilled tasks in a work setting, especially those requiring minimal
   interaction with others.” Further, Webster “retain[ed] mental capacity to
   complete unskilled work tasks for which he remains physically capable.”
          Contrary to Webster’s contentions, the ALJ incorporated these
   findings into Webster’s RFC, which stated that Webster had the “residual
   functional capacity to perform light work as defined by 20 C.F.R.
   [§] 404.1567(b) except that he can engage in occasional climbing and
   balancing” and that he was “further limited to routine, repetitive tasks with
   occasional public contact.” Furthermore, the ALJ appropriately used the
   RFC when questioning the vocational expert, and Webster’s counsel had
   “the opportunity to correct deficiencies in the ALJ’s question by mentioning
   or suggesting to the vocational expert any purported defects in the
   hypothetical questions.” Bowling v. Shalala,
36 F.3d 431, 436
 (5th Cir. 1994).
   Moreover, the RFC and the state agency report are reflected in the vocational
   expert’s proposed occupations, as he specifically identified potential
   employment that did not require “a great deal of interaction with the public
   or coworkers.”
          The ALJ also articulated his reasons for rejecting the testimony of Dr.
   Small. As is required by Section 404.1520c, the ALJ considered both the
   consistency and supportability of Dr. Small’s testimony in light of other
   medical opinions and evidence in the record, including Webster’s hospital
   and VA treatment records. Ultimately, the ALJ determined that Dr. Small’s
   testimony was only “supported” by his own findings and was inconsistent
   with Webster’s medical history and longitudinal psychiatric treatment
   records indicating improvement to the symptoms caused by Webster’s
   PTSD. Though the ALJ neither adopted the state agency report verbatim
   nor accepted the testimony of Dr. Small, it cannot be said that his decision




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   was not based on substantial evidence or that he improperly applied the
   relevant legal standards.
   II.     A Consultative Exam was not required.
           Webster also argues that the ALJ erred by failing to order a requested
   Consultative Exam (“CE”). Webster argues that the conflicting evidence
   introduced by Dr. Small necessitated a further development of the record
   with a government-funded CE.1
           An “ALJ has a duty to develop the facts fully and fairly relating to an
   applicant’s claim for disability benefits.” Ripley,
67 F.3d at 557
. An ALJ’s
   failure to fulfill this duty is not reversible error unless the claimant is
   prejudiced.
Id.
 “A consultative examination is required to develop a ‘full
   and fair record’ only if ‘the record establishes that such an examination is
   necessary to enable the [ALJ] to make the disability decision.’” Hardman v.
   Colvin,
820 F.3d 142, 148
 (5th Cir. 2016) (quoting Jones v. Bowen,
829 F.2d 524, 526
 (5th Cir. 1987)).
           As in Hardman, the record here is “replete with medical documents
   that spanned years.”
Id.
 The ALJ reviewed Webster’s medical records from
   both the Veteran’s Administration (“VA”) and the hospital, the state agency
   consultation, the findings of Dr. Small, and testimony from Webster’s wife
   and mother. Nothing in the record suggests that the ALJ needed any more
   medical information to reach an informed decision about whether Webster
   was disabled. The ALJ’s decision was based upon substantial evidence in a
   sufficiently developed record, and he did not err in declining to order the CE.



           1
            Part of Webster’s argument for a CE relies on his belief that the ALJ erred in
   determining that the record showed no evidence of prescribed knee and back braces.
   Though the record does evidence the existence of the knee brace, the pages cited by Webster
   do not demonstrate that either the back or knee brace were prescribed.




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                                    No. 20-60856


   III.   Webster’s remaining arguments were waived.
          Webster advances two final claims of error that he did not raise at the
   district court. First, he argues that the ALJ erred by not analyzing Listing
   Impairment 12.15 for Trauma and Stressor related disorders. Second, he
   argues that the ALJ erred by failing to determine whether Webster could hold
   whatever job he could find for a significant period of time.
          Our court adheres to the general rule that “arguments not raised
   before the district court are waived and cannot be raised for the first time on
   appeal.” LeMaire v. Louisiana Dep’t of Transp. & Dev.,
480 F.3d 383, 387
   (5th Cir. 2007). An argument is not waived, though, “if the argument on the
   issue before the district court was sufficient to permit the district court to
   rule on it.” Horton v. Bank One, N.A.,
387 F.3d 426, 435
 (5th Cir. 2004)
   (citation and quotation marks omitted).
          Webster did not raise these arguments at the district court or present
   them in a manner sufficient for the district court to rule on them. Nor did he
   respond to the Commissioner’s arguments that they were waived.
   Consequently, we hold that Webster waived these arguments.
          AFFIRMED.




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