    Case: 17-40362    Document: 00514315420     Page: 1   Date Filed: 01/22/2018




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT


                                No. 17-40362                      United States Court of Appeals
                                                                           Fifth Circuit

                                                                         FILED
                                                                  January 22, 2018
                                                                    Lyle W. Cayce
ROGELIO ALEMAN GARCIA,                                                   Clerk

                                           Plaintiff–Appellant,

versus

NANCY A. BERRYHILL,
 Acting Commissioner of Social Security,

                                           Defendant–Appellee.




                Appeal from the United States District Court
                     for the Southern District of Texas




                     ON PETITION FOR REHEARING


Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
PER CURIAM:

     IT IS ORDERED that the petition for rehearing is DENIED.

     The petition for panel rehearing helpfully calls attention to factual errors
in the opinion. We correct them by substituting the following opinion:
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                                 No. 17-40362
                                    *   *    *




Before HIGGINBOTHAM, JONES, and SMITH, Circuit Judges.
JERRY E. SMITH, Circuit Judge:

      Rogelio Garcia appeals the district court’s decision to deny disability ben-
efits he sought from the Social Security Administration (“SSA”). Because the
decision is supported by substantial evidence, we affirm.

                                        I.
      In January 2012, Garcia applied for disability insurance benefits under
42 U.S.C. § 423 as of January 1, 2007, based on hearing loss and post-traumatic
stress disorder (“PTSD”) allegedly induced by his service in Vietnam. The SSA
denied his application initially and on reconsideration, so he sought a de novo
hearing before an ALJ. After considering Garcia’s work and medical history,
the ALJ likewise denied the application.

      The record before the ALJ revealed that since leaving the service, Garcia
had earned consistent, and at times substantial, income through 2005. Be-
tween 1997 and 1999, he was a dispatcher at a produce company, where he
was responsible for traffic control and oversaw the work of four other employ-
ees. In 2000, he started his own produce brokerage business and managed
several employees. He has not worked since December 2005.

      At some point between 2005 and 2007, Garcia sought treatment from a
doctor for “dizzy spells” and was advised that he should file for disability with
the Veteran’s Administration (“VA”). He applied in August 2009 and was sub-
ject to a psychological evaluation by Dr. Paul Hamilton one year later as part



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                                      No. 17-40362
of the VA’s evaluation. 1 Hamilton found that Garcia possessed powers of
comprehension, judgment, communication, and abstract thinking, all within a
normal range, but that his “impaired attention” and abnormal speech patterns
left “little opportunity for normal” conversation. Hamilton also concluded that
Garcia would make a poor employee given the difficulty in containing anger
and his “graphic visualization of killing others.”

       In June 2011, largely on the basis of that assessment, the Department of
Veterans Affairs determined that Garcia suffered from war-induced PTSD,
which resulted in his “100% disability,” effective August 28, 2009, the date on
which his claim was filed. Garcia’s medical records indicate that in the thirty
years before that determination, he had not been not diagnosed with or treated
for PTSD.

       In March 2012, Dr. Noel Nick examined Garcia at the VA’s request in
connection with a separate claim for compensation for Traumatic Brain Injury
(“TBI”). Nick determined that Garcia’s visual/spatial test score was below nor-
mal; his memory, attention, concentration and executive functions were mildly
impaired; and his judgment, motor activity, and communication skills were
within a normal range. Nick also reviewed Garcia’s medical history, which
included Hamilton’s report, a negative PTSD screen from 2004, and a positive
one from March 2010. Nick concluded that Garcia’s symptoms likely were not
caused by his combat service.

       Two months before that, in January 2012, Garcia filed for social security
disability benefits, claiming eligibility as of January 2007. The agency solicited
the opinions of Dr. Charles Lawrence, a state-agency psychologist, and



       1 Although the ALJ could not procure a copy of Hamilton’s report, it reviewed the VA’s
disability decision, which provided a detailed discussion of the doctor’s findings.
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                                      No. 17-40362
Dr. Anthony Hammond to assess Garcia’s application. The former concluded
there was insufficient evidence to determine whether the hearing loss and
PTSD had rendered Garcia disabled, and the latter concurred.

       In November 2013, the ALJ held an evidentiary hearing to consider tes-
timony from Garcia and a vocational expert, Malloy Kelley, on Garcia’s alleged
disability. Garcia claimed that from 2005 to 2007, he had become increasingly
“forgetful” and had let his produce brokerage business “drift away.” On ques-
tioning by his representative, Garcia also recalled having panic attacks,
nightmares, and hallucinations. Kelley testified next that a person with Gar-
cia’s alleged symptoms would be unable to perform any of his prior work.

       The ALJ denied benefits and made the following findings: (a) Garcia had
not performed substantial gainful activity since the alleged onset of the dis-
ability in January 2008; (b) he suffered from severe tinnitus, degenerative
arthritis in his right knee, and right shoulder arthralgia; (c) his PTSD was not
severe, because it placed no more than a “minimal limitation” on his ability to
perform “basic mental work activities”; (d) none of his impairments, either
individually or in combination, matched the severity of the impairments listed
in 20 C.F.R. Part 404, Subpart B, Appendix 1; (e) he had the residual func-
tional capacity to perform light work as defined in 20 C.F.R. § 404.1567(b); 2
(f) he was capable of performing past relevant work as an agriculture broker;
and (g) he was not under a disability, as defined in the Social Security Act (the
“Act”), at any time from the alleged onset date of January 1, 2007, through
December 31, 2007, the date last insured.

       Garcia appealed internally, and the Appeals Council declined his request


       2 In support of that finding, the ALJ concluded that Garcia’s impairments could cause
his alleged symptoms but that his claims about the “intensity, persistence and limiting
effects” of said systems were “not entirely credible.”
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to review, rendering the ALJ’s adverse decision final. Garcia sought review in
the district court per 42 U.S.C § 405(g). The magistrate judge (“MJ”) recom-
mended that the ALJ’s determination be affirmed. The district court adopted
the MJ’s report and recommendation in full, and Garcia appealed.

                                             II.
                                             A.
       A claimant has the burden of proving he suffers from a disability, which
the Act defines as a mental or physical impairment, lasting at least a year, that
precludes him from substantial gainful activity. 3 The relevant analysis pro-
ceeds in five steps: the Commissioner considers whether (1) the claimant is
currently engaged in substantial gainful activity, (2) he has a severe impair-
ment, (3) the impairment meets the severity of an impairment enumerated in
the relevant regulations, (4) it prevents the claimant from performing past rel-
evant work, and (5) it prevents him from doing any relevant work. 20 C.F.R.
§ 404.1520; Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir. 2002). If the
claimant survives the first four stages, the burden shifts to the Commissioner
on the fifth step to prove the claimant’s employability. Perez v. Barnhart, 415
F.3d 457, 461 (5th Cir. 2005); Newton v. Apfel, 209 F.3d 448, 453 (5th Cir.
2000). A finding at any step that the claimant is not disabled ends the inquiry.
Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).

       Our review of the ALJ’s determination is “highly deferential,” Perez,
415 F.3d at 464:       We ask only whether substantial evidence supports the
decision and whether the correct legal standards were employed. 42 U.S.C
§ 405(g); Masterson, 309 F.3d at 272. Substantial evidence is “more than a




       3“Substantial gainful activity” is work for pay or profit requiring significant mental
or physical ability. 20 C.F.R. § 404.1572(a)-(b).
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                                       No. 17-40362
mere scintilla and less than a preponderance.” Id. (citations omitted). We will
not “re-weigh the evidence” nor, in the event of evidentiary conflict or un-
certainty, will we “substitute our judgment for the Commissioner’s, even if we
believe the evidence weighs against the Commissioner’s decision.” Id.

                                              B.
       Garcia asserts three instances of error: First, the ALJ impermissibly
relied on the VA’s summary of Hamilton’s psychological evaluation, when it
was required to obtain and directly review a copy of the evaluation itself;
second, the ALJ improperly determined that Garcia’s PTSD was non-severe;
and third, the ALJ failed properly to consider the VA’s 100% disability rating.
Garcia requests that we reverse and direct the district court to remand for the
Commissioner to consider Hamilton’s report directly.

       The first alleged error—that the ALJ was required to obtain a copy of
Hamilton’s report—was at most harmless. An ALJ’s failure to include certain
documentation in the record is ground for reversal only if the applicant can
show prejudice. Brock v. Charter, 84 F.3d 726, 728 (5th Cir. 1996) (requiring
applicant to show that omitted material “might have altered the result”). The
record describes Hamilton’s findings in detail and in a light favorable to Gar-
cia; the ALJ rejected Garcia’s claim nonetheless. Because Garcia gives us no
reason to believe the original report would somehow swing the evidentiary pen-
dulum in his favor, any alleged error was harmless such that remand would be
inappropriate. See Morris v. Bowen, 864 F.2d 333, 335 (1988). 4

       Garcia’s second claim—that the ALJ improperly deemed Garcia’s PTSD


       4 It is unlikely that the ALJ erred in failing to procure the original report. The record
reveals that the ALJ and other interested parties devoted considerable attention to locating
the report. Though Garcia suggests they were looking in the wrong place, he provides no
explanation for why he and his representative could not acquire the report themselves if they
knew its location.
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                                       No. 17-40362
non-severe at step two—is equally unavailing. At bottom, Garcia argues the
ALJ applied too high a threshold in its determination of severity. We disagree.
The regulations define a severe impairment as “any impairment or combina-
tion of impairments which significantly limits [one’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1520(c). This court considers a
“slight abnormality” to be non-severe wherever it has “such minimal effect on
that individual that it would not be expected to interfere with the individual’s
ability to work.” Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) (citations
omitted). The ALJ cited Stone and rigorously considered the four broad func-
tional areas set out in the disability regulation for evaluating the severity of
mental disorders, 20 C.F.R. § 404.1520a(d)(1), before concluding that Garcia’s
impairments were merely mild. 5 Garcia presents no evidence to suggest the
wrong standard was applied. 6

       Garcia’s final claim—that the VA’s 100% disability rating was substan-
tial evidence of a severe impairment—is similarly unpersuasive. First, the
VA’s determination does not bind the Commissioner; it is merely “evidence . . .
that must be considered.” Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir.
2001). The weight assigned to such a determination will “vary depending upon
the factual circumstances of each case.”                Id.    The ALJ considered, but


       5 The four functional areas are (1) activities of daily living; (2) social functioning;
(3) concentration, persistence, or pace; and (4) episodes of decompensation. 20 C.F.R.
§ 404.1520a(c)(3). The ALJ addressed each of those in detail in concluding that Garcia’s
impairment was nonsevere.
       6 Any error at step two would likewise be harmless, given that the ALJ concluded at
step four, on the basis of substantial evidence, that Garcia retained the ability to perform his
past relevant work as a produce broker. As the ALJ observed, Garcia “worked in the produce
brokerage business for close to 30 years without any known impediment” and even continued
to work in that field while suffering from the alleged symptoms. Additionally, the record
contained no medical evidence that Garcia had seen any doctor of any kind before 2008, when
his insured status expired. See Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (allow-
ing ALJs to rely “upon the lack of treatment as an indication of nondisability”).
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                                       No. 17-40362
ultimately rejected, the VA’s findings, in part because the VA relied heavily on
a “one-time evaluation” by a doctor who “had not formed a treating rela-
tionship” with Garcia. Meanwhile, two state-agency consultants found that
they had insufficient data to confirm the VA’s position, the ALJ had before it
no direct medical evidence that Garcia suffered from PTSD as of 2007, and the
earliest treating source notes came from a nursing telephone encounter in
2011. 7

       The ALJ’s decision not to follow the VA’s determination was thus sup-
ported by substantial evidence. 8 The judgment of dismissal is AFFIRMED.




       See Newton, 209 F.3d at 455 (“The ALJ is free to reject the opinion of any physician
       7

when the evidence supports a contrary conclusion.”).
       8 The timing of the VA’s decision also discounts its evidentiary value. To prove entitle-
ment to disability benefits under the Act, claimants must prove that they became disabled
before the expiration of their insured status. Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir.
1992) (citing 42 U.S.C. § 423(a), (c)). Garcia’s insured status expired in December 2007, while
the VA’s 2011 decision was made retroactively effective as of August 2009. Thus, it provides
no more than indirect evidence of disability during the relevant period.
                                               8
