Lucas v. Barnhart ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-51225
Summary Calendar
MARY L. LUCAS,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-00-CV-724-SC
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September 10, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:*
Mary L. Lucas appeals the district court’s judgment
affirming the denial of her application for disability insurance
benefits and supplemental security income. Lucas contends that
the determination of the Administrative Law Judge (“ALJ”)
regarding her disability status was not supported by substantial
evidence. Specifically, she asserts that the ALJ erred in
disregarding the opinion of Dr. D. M. Hamilton, failing to
determine the treatment relationship between Lucas and Dr. Willis
*
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that this opinion should not be published and is not precedent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.
No. 01-51225
-2-
Thorstad, failing to consider the combined effect of all of her
impairments, and finding that she could perform her past relevant
work as a CD packer. Because Lucas failed to present this latter
issue in district court, review is for plain error. See Kinash
v. Callahan, 129 F.3d 736, 739 n.10 (5th Cir. 1997). Any error
must be “‘plain’ and ‘affect substantial rights.’” Id. Lucas
does not allege, and the record does not indicate, that this
court’s failure to consider the instant issue will affect her
substantial rights. Therefore, she has not shown plain error.
The ALJ explicitly considered the combined effect of all of
Lucas’s impairments. Furthermore, although the Appeals Council
subsequently included Dr. Thorstad’s medical opinion into the
administrative record, his opinion was not part of the record at
the time of the ALJ’s decision. Accordingly, the ALJ had no
basis for determining the treatment relationship between Lucas
and Dr. Thorstad. Based on our review of the record, the ALJ’s
decisions disregarding Dr. Hamilton’s opinion and denying
benefits to Lucas were supported by substantial evidence.
AFFIRMED.