Paul Ferrari v. Michael Astrue, Commissioner

Filing 511130741

Paul Ferrari v. Michael Astrue, Commissioner

Doc. 511130741

Case: 09-30954

Document: 00511130741

Page: 1

Date Filed: 06/03/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
June 3, 2010 N o . 09-30954 S u m m a r y Calendar Lyle W. Cayce Clerk

P A U L FERRARI P la in tiff - Appellant v. M I C H A E L J ASTRUE, COMMISSIONER OF SOCIAL SECURITY D e fe n d a n t - Appellee

A p p e a l from the United States District Court fo r the Western District of Louisiana U S D C No. 6:08-CV-719

B e fo r e JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges. P E R CURIAM:* P a u l Ferrari appeals from the district court's judgment affirming the S o c ia l Security Administration Commissioner's denial of disability insurance b e n e fit s and supplemental security income payments pursuant to 42 U.S.C.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5T H CIR. R. 47.5.4.

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Dockets.Justia.com

Case: 09-30954

Document: 00511130741

Page: 2

Date Filed: 06/03/2010

No. 09-30954 § 405(g). Liberally construing Ferrari's pro se brief,1 we discern that Ferrari a s s i g n s two points of error: (1) the Administrative Law Judge (ALJ) 2 failed to t h o r o u g h ly analyze aspects of Ferrari's medical record, and (2) the psychologist's r e p o r t relied upon by the ALJ contained inaccurate and character-damaging in fo r m a t io n that biased the evaluation of Ferrari's disability claim. These

a rg u m e n ts were not raised below, however, and this court ordinarily does not c o n s i d e r evidence or arguments that were not presented to the district court. C a s tillo v. Barnhart, 325 F.3d 550, 553 (5th Cir. 2003). Ferrari has not alleged a n y "exceptional circumstances" explaining his failure to present these a r g u m e n t s below, which, "in the interests of justice," would persuade this court to review the issues he now raises for the first time. See id. Ferrari also attaches to his appellate brief medical documentation that w a s not included in the certified administrative transcript. Our review is

lim i t e d to the record made before the ALJ,3 and we can only remand 4 for the t a k in g of new evidence when it is material and there is "good cause . . . shown fo r the failure to incorporate the evidence into the record in a prior proceeding." B r a d le y v. Bowen, 809 F.2d 1054, 1058 (5th Cir. 1987); 42 U.S.C. § 405(g).

See Abdul-Alim Amin v. Universal Life Ins. Co. of Memphis, Tenn., 706 F.2d 638, 640 n.1 (5th Cir. 1983). The ALJ's decision became the Commissioner's final decision when the Social Security Administration Appeals Council declined to review the ALJ's determination. See 20 C.F.R. § 416.1429 et seq.
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Ellis v. Bowen, 820 F.2d 682, 684 (5th Cir. 1987).

We note that Ferrari does not seek remand for the Commissioner to review his newly presented medical evidence, but asks this court to consider the evidence in the first instance. We are precluded from doing so by statute. See 42 U.S.C. § 405(g); Ellis, 820 F.2d at 684.

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2

Case: 09-30954

Document: 00511130741

Page: 3

Date Filed: 06/03/2010

No. 09-30954 H a v i n g examined Ferrari's additional evidence, we conclude that it does not s a t is fy the statutory standard for remand because it is either cumulative of other r e c o r d evidence, immaterial in that it is unlikely to have changed the ALJ's d e c is io n , or both. See Pierre v. Sullivan. 884 F.2d 799, 803 (5th Cir. 1989) (c it a t io n s omitted). Ferrari particularly relies upon a "Medical Source

S t a te m e n t of Ability To Do Work-Related Activities (Physical)" rendered in June 2 0 0 8 , approximately eight months after Ferrari's October 2007 hearing before t h e ALJ, but we have rejected as immaterial new evidence that does not relate to a claimant's condition at the time of the disability application or hearing. See H a y w o o d v. Sullivan, 888 F.2d 1463, 1471­72 (5th Cir. 1989). Thus, remand in lig h t of Ferrari's additional evidence is unwarranted. F o r the foregoing reasons, the district court's judgment is AFFIRMED.

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