Paul Ferrari v. Michael Astrue, Commissioner

Case: 09-30954 Document: 00511130741 Page: 1 Date Filed: 06/03/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 3, 2010
No. 09-30954 Lyle W. Cayce
Summary Calendar Clerk
PAUL FERRARI
Plaintiff - Appellant
v.
MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:08-CV-719
Before JONES, Chief Judge, and DAVIS and WIENER, Circuit Judges.
PER CURIAM:*
Paul Ferrari appeals from the district court’s judgment affirming the
Social Security Administration Commissioner’s denial of disability insurance
benefits 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not be published and is not precedent except under the limited circumstances set forth in
5TH CIR . R. 47.5.4.
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No. 09-30954
§ 405(g). Liberally construing Ferrari’s pro se brief,1 we discern that Ferrari
assigns two points of error: (1) the Administrative Law Judge (ALJ) 2 failed to
thoroughly analyze aspects of Ferrari’s medical record, and (2) the psychologist’s
report relied upon by the ALJ contained inaccurate and character-damaging
information that biased the evaluation of Ferrari’s disability claim. These
arguments were not raised below, however, and this court ordinarily does not
consider evidence or arguments that were not presented to the district court.
Castillo v. Barnhart, 325 F.3d 550, 553 (5th Cir. 2003). Ferrari has not alleged
any “exceptional circumstances” explaining his failure to present these
arguments 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
was not included in the certified administrative transcript. Our review is
limited to the record made before the ALJ,3 and we can only remand 4 for the
taking of new evidence when it is material and there is “good cause . . . shown
for the failure to incorporate the evidence into the record in a prior proceeding.”
Bradley v. Bowen, 809 F.2d 1054, 1058 (5th Cir. 1987); 42 U.S.C. § 405(g).
1
See Abdul-Alim Amin v. Universal Life Ins. Co. of Memphis, Tenn., 706 F.2d 638,
640 n.1 (5th Cir. 1983).
2
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.
3
Ellis v. Bowen, 820 F.2d 682, 684 (5th Cir. 1987).
4
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.
2
Case: 09-30954 Document: 00511130741 Page: 3 Date Filed: 06/03/2010
No. 09-30954
Having examined Ferrari’s additional evidence, we conclude that it does not
satisfy the statutory standard for remand because it is either cumulative of other
record evidence, immaterial in that it is unlikely to have changed the ALJ’s
decision, or both. See Pierre v. Sullivan. 884 F.2d 799, 803 (5th Cir. 1989)
(citations omitted). Ferrari particularly relies upon a “Medical Source
Statement of Ability To Do Work-Related Activities (Physical)” rendered in June
2008, approximately eight months after Ferrari’s October 2007 hearing before
the 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
Haywood v. Sullivan, 888 F.2d 1463, 1471–72 (5th Cir. 1989). Thus, remand in
light of Ferrari’s additional evidence is unwarranted.
For the foregoing reasons, the district court’s judgment is AFFIRMED.
3