Demars v. Halter

* 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that this opinion should not be published and is not precedent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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-30914
Summary Calendar
BOBBY R. DEMARS,
Plaintiff-Appellant,
versus
WILLIAM A. HALTER,
Acting Commissioner of Social Security,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 99-CV-1137
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March 13, 2001
Before DAVIS, JONES and DeMOSS, Circuit Judges.
PER CURIAM:*
Bobby R. Demars appeals the district court’s judgment
affirming the Commissioner’s decision denying his request for
disability insurance benefits and supplemental security income
pursuant to 42 U.S.C. § 405. We review the Commissioner’s
decision to determine whether it is supported by substantial
evidence in the record and whether the Commissioner applied the
proper legal standards in evaluating the evidence. Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995). Demars argues that (1)

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the administrative law judge (ALJ) failed to consider all of his
impairments and that the evidence supports a finding that he met
or equaled Listings 1.05(C), 1.03(A), and 12.04; (2) the ALJ
should have consulted with a medical expert when assessing
Demars’ disability; and (3) the ALJ should have consulted with a
vocational expert when assessing Demars’ disability.
Dr. Edwin Simonton examined Demars and concluded that there
were no objective findings of impairment regarding his back
condition and that he is able to perform any activity for which
he is otherwise qualified. Thus, the ALJ’s conclusion that
Demars does not have an impairment resulting from his back
condition is supported by substantial evidence. The issue
whether Demars met or equaled the criteria for depression or
arthritis at Listings 1.03(A) and 12.04 was not raised in the
district court. As such, this court need not consider the issue.
See Leverette v. Louisville Ladder Co., 183 F.3d 339, 341-42 (5th
Cir. 1999)(explaining that this court will not allow a party to
raise an issue for the first time on appeal merely because it
might prevail on a different theory), cert. denied, 120 S. Ct.
982 (2000).
Because Dr. Simonton unequivocally found no impairment and
opined that Demars was capable of performing any activity, there
was no need to appoint a medical expert. Cf. Villa v. Sullivan,
895 F.2d 1019, 1023-24 (5th Cir. 1990)(relying upon a
nonexamining physician is appropriate only if nonexamining
physician’s conclusions are not contrary to examining physician’s
opinion). Likewise, the ALJ properly relied on the guidelines

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and was not required to appoint a vocational expert because the
ALJ found no significant nonexertional limitations. See Selders
v. Sullivan, 914 F.2d 614, 618-19 (5th Cir. 1990). Demars has
not demonstrated that he is entitled to a remand for
consideration of his alleged nonexertional impairments. See
Leggett v. Chater, 67 F.3d 558, 566-67 (5th Cir. 1995).
The ALJ’s decision to deny benefits was supported by
substantial evidence and the ALJ applied the proper legal
standards in evaluating the evidence. Accordingly, the district
court’s judgment is AFFIRMED.

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