Moore v. Apfel ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11330
Summary Calendar
PETER M. MOORE,
Plaintiff-Appellant,
versus
KENNETH S. APFEL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:98-CV-1756-P
--------------------
July 21, 2000
Before JOLLY, SMITH, and DUHÉ, Circuit Judges.
PER CURIAM:1
Peter M. Moore appeals from the district court’s judgment
affirming the denial of his application for supplemental security
income. He argues that the district court erred in finding there
was substantial evidence to support the Commissioner’s denial of
his disability claim and that the ALJ failed to apply the proper
legal standard to his claim regarding 1) Moore’s waiver of his
right to representation, the hearing notice, and the requirement to
conduct a full and fair hearing.
1
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that this opinion should not be published and is not precedent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.
We have reviewed the record and hold that the district court
did not err in concluding that there was substantial evidence to
support the Commissioner’s decision to terminate Moore’s disability
claim. See Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
We deem waived Moore’s argument that he did not knowingly waive his
right to representation at the hearing because he does not
specifically identify to us, either by explanation or citation to
the record, how the ALJ failed to comply with the requirements.
Fed. R. App. P. 28(a)(9)(A).
The Commissioner objects to Moore’s assertion that the hearing
notice he received was defective and violated his right to due
process because the Commissioner contends that Moore raised this
argument for the first time in his objections to the magistrate
judge’s report and recommendation and, therefore it should be
considered waived. However, since the Commissioner did not file an
objection to the consideration of the issue in district court, we
will address Moore’s contention. See Douglass v. United Serv.
Auto. Ass’n, 79 F.3d 1415, 1420 (5th Cir. 1996). Moore does not
raise a constitutional claim because he does not allege an injury.
He does not assert that he failed to present relevant evidence in
reliance upon the notice’s purported misleading language. See
Torres v. Shalala, 48 F.3d 887, 893 (5th Cir. 1995).
We deem waived Moore’s argument that he did not knowingly
waive his right to representation at the hearing because he does
not specifically identify to us, either by explanation or citation
to the record, how the ALJ failed to comply with the requirements.
2
Fed. R. App. P. 28(a)(9)(A). We also deem waived Moore’s
contention that the ALJ failed to conduct a full and fair hearing
for the same reasons. Accordingly, the district court’s decision
is AFFIRMED.
3