Persichilli v. Commissioner of Social Security Administration

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
AUGUST 21, 2007
No. 07-10714 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 05-61124-CV-AJ
GLORIA PERSICHILLI,
Plaintiff-Appellant,
versus
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,
Michael J. Astrue,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(August 21, 2007)
Before BIRCH, BLACK and KRAVITCH, Circuit Judges.
PER CURIAM:
Appellant, Gloria Persichilli, appeals the district court’s order affirming the
denial of her application for disability insurance benefits, 42 U.S.C. § 405(g). For
the reasons set forth below, we affirm the decision of the district court.
I.
On March 13, 1995, Persichilli applied for disability insurance benefits,
alleging an onset date of December 20, 1994. She identified carpal tunnel
syndrome and ulnar nerve entrapment as the conditions affecting her ability to
work. Her application was denied both initially and on reconsideration. Persichilli
requested a hearing before an Administrative Law Judge (“ALJ”), and, following
the hearing, the ALJ issued a decision on July 24, 1996, denying the request for
benefits. This denial was remanded by the Appeals Council with an order that the
ALJ hear evidence from a vocational expert. Following a second hearing on
February 25, 1998, in which two vocational experts testified, the ALJ again denied
Persichilli’s request for benefits. This decision was upheld by the Appeals
Council.
On January 10, 2000, Persichilli filed a complaint in the United States
District Court for the Southern District of Florida, and the magistrate court
recommended that the Commissioner’s decision be affirmed. The district court,
however, declined to affirm the recommendation and remanded the case back to
the Commissioner with instructions to hold a consultative medical examination and
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receive expert medical evidence as to the nature and severity of Persichilli’s
current impairment. A third hearing was held and, once again, the ALJ denied the
request for benefits. This decision was upheld by the Appeals Council.
Persichilli then filed a second suit in the district court. In this claim,
Persichilli alleged that she had not worked since December 20, 1994, due to
bilateral carpal tunnel syndrome with ulnar nerve entrapment, chronic pain
syndrome, and major depression. Persichilli then moved for summary judgment,
alleging that the ALJ erred in (1) determining that her depression was not a severe
impairment; (2) refusing to consider evidence of medical treatment by her
psychologist after March 31, 2000, the last date of her insured status; and (3)
adopting the finding and conclusions in the Magistrate Judge’s order of November
3, 2000. The Commissioner also filed a motion for summary judgment. The
Commissioner argued that (1) the record conflicted with the proposition that
Persichilli’s depression caused severe impairment and the ALJ properly discounted
her treating psychologist’s opinions because they conflicted with the record; (2)
Persichilli’s depression was not sever and could not be of listing level severity; (3)
Persichilli provided no evidence regarding how evidence of treatment of
depression after March 31, 2000, would change the ALJ’s decision; and (4) the
ALJ properly adopted the findings and conclusions of the Magistrate Judge.
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The district court granted the Commissioner’s motion for summary
judgment, and affirmed the Commissioner’s decision.
Persichilli now appeals. In her appeal, Persichilli argues that the ALJ’s
finding that she could perform a full range of sedentary work was not supported by
substantial evidence because the ALJ did not acknowledge her “sever manipulative
limitations which affected her bilateral manual dexterity.” Second, she argues that
the ALJ erred in relying on the Medical Vocation Guidelines to direct a finding
that appellant was not disabled because she had “nonexertional impairment that
significantly limits her manipulative abilities to perform basic work skills.” Third,
Persichilli argues that the ALJ should have performed a detailed analysis, via both
the Medical Vocational Guidelines and a vocational expert, regarding the effect her
bilateral manipulative limitations had on her ability to perform sedentary work.
Finally, she argues that testimony from a vocational expert was required to
demonstrate that there were other jobs in the national economy that Persichilli
could have performed with her residual functional capacity for less than a full
range of sedentary work.
II.
We review the Commissioner’s decision in a social security case to
determine if it is supported by substantial evidence and whether the correct legal
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standards were applied. Crawford v. Comm’r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004). As a general rule, however, “this court will not address an
argument that has not been raised in the district court.” Stewart v. Dep’t of Health
and Human Servs., 26 F.3d 115, 115 (11th Cir. 1994); see also Jones v. Apfel, 190
F.3d 1224, 1228 (11th Cir. 1999) (declining to consider an issue presented for the
first time on appeal in a social security case).
III.
After a review of the record, we conclude that Persichilli has waived her
appellate arguments by failing to raise them in the district court. In her appeal,
Persichilli argues that the ALJ ignored her inability to perform a full range of
sedentary work because of her nonexertional manipulative limitations and the
impact of those limitations on her hands. This argument was not presented to the
district court. Rather, Persichilli focused on her depression, the ALJ’s rejection of
Dr. Seidman’s opinion, and the ALJ’s alleged circumvention of the district court
remand order.
Accordingly, we decline to consider these issues raised for the first time on
appeal, and AFFIRM the decision of the district court.
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