Manion v. Astrue

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 3, 2007
No. 07-30143 Charles R. Fulbruge III
Summary Calendar Clerk
STELLA MANION
Plaintiff-Appellant
v.
MICHAEL J. ASTRUE, Commissioner of Social Security
Defendant-Appellee
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:05-CV-2123
Before REAVLEY, SMITH, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Stella Manion appeals a summary judgment for the Commissioner of the
Social Security Administration’s denial of her claim for disability insurance
benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. Manion
does not challenge whether the Commissioner’s decision is supported by
substantial evidence. Instead, she maintains the Administrative Law Judge
(ALJ) did not properly develop the record and committed procedural errors by:
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-30143
sending treating physicians follow-up interrogatories; and ordering a
consultative examination from a non-treating physician.
In applying for disability insurance benefits, Manion claimed disability
due to fibromyalgia, neuropathy, acid reflux, gall stones, and high blood
pressure. After the Commissioner denied her application, Manion requested,
and received, an administrative hearing. She submitted five medical
assessments from her treating physicians to the ALJ for review. The ALJ then
sent each treating physician a request for supporting documentation. In
addition, the ALJ solicited a non-treating physician to perform a consultative
examination upon Manion.
The ALJ held: Manion was not under a “disability”, as defined in the
Social Security Act; and she retained the residual functional capability to, inter
alia, continue her past work as a beautician. The Appeals Council denied
Manion’s request for review, leaving the ALJ’s decision to stand as the final
decision of the Commissioner.
Procedural perfection is not required in administrative proceedings;
accordingly, we “will not vacate a judgment unless the substantial rights of a
party have been affected”. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988);
see also Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988).
Essentially for the reasons stated by the district court, summary judgment
was proper. An ALJ may contact a treating physician to obtain clarification of
a previously submitted medical report. 20 C.F.R. § 404.1512(e). Additionally,
when a consultative examination is ordered, it is not mandatory that it be
performed by a treating physician. 20 C.F.R. § 404.1519h.
2
No. 07-30143
The assertion that the ALJ did not properly develop the record was not
raised in district court. Accordingly, it is waived. E.g., Leverette v. Louisville
Ladder Co., 183 F.3d 339, 342 (5th Cir. 1999) (“This Court will not consider an
issue that a party fails to raise in the district court absent extraordinary
circumstances . . . .”).
AFFIRMED.
3