Barnes v. Barnhart

U.S. Court of Appeals for the Fifth Circuit

Barnes v. Barnhart

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50565 Summary Calendar

SALLY BARNES,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas (SA-01-CV-613) - - - - - - - - - - January 2, 2003

Before DAVIS, WIENER, and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:*

Plaintiff-Appellant Sally Barnes appeals the district court’s

affirmance of the Social Security Commissioner’s decision to deny

her disability insurance benefits under the Social Security Act.

Barnes contends that the Commissioner’s decision was not

supported by “substantial evidence”; specifically, that the

Administrative Law Judge (“ALJ”) erred in determining that her

impairments did not meet or equal the listing at 11.14, 20 C.F.R.,

Appendix 1, Subpart P, Regulations No. 4 (Pt. 404), for “peripheral

neuropathies.” That listing requires a showing of “[s]ignificant

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. and persistent disorganization of motor function in two

extremities.” The isolated reference by one treating physician to

the need for surgery for cubital tunnel syndrome in “both arms” was

not sufficient to show the severity required by the regulation for

Barnes’s right arm and hand. Barnes failed to sustain her burden

of proof with respect to this step of the Commissioner’s five-step

sequential analysis. See Sullivan v. Zebley,

493 U.S. 521, 531-32

(1993); McQueen v. Apfel,

168 F.3d 152, 154

(5th Cir. 1999).

For the first time on appeal, Barnes conclusionally asserts

that the ALJ failed to address, at the fifth step of sequential

analysis, whether she could maintain “proffered alternative

employment.” We do not ordinarily review issues raised for the

first time on appeal. Chambliss v. Massanari,

269 F.2d 520, 523

(5th Cir. 2001). “In exceptional circumstances, we may, in the

interests of the justice, review an issue that was not raised in

the district court.” Kinash v. Callahan,

129 F.3d 736

, 738 n.10

(5th Cir. 1997). Barnes has not established “exceptional

circumstances”; indeed, she has not even countered the alternative

jobs proffered by the vocational expert with proof that she cannot

in fact perform or maintain such jobs. See Boyd v. Apfel,

239 F.3d 698, 705

(5th Cir. 2001).

The decision of the district court is

AFFIRMED.

2

Reference

Status
Unpublished