Weatherall v. Barnhart

*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this opinion should not be published and is not precedent except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. 01-30992
Summary Calendar
JOHN E. WEATHERALL,
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 Louisiana
USDC No. 00-CV-2212
May 3, 2002
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
John Weatherall filed an application for Supplemental Security
Income (SSI) payments and for Disability Insurance Benefits (DIB)
in April 1998. His request for benefits was denied at all stages
of administrative review. After his administrative remedies were
exhausted, Weatherall sought review in the district court. While
the matter was pending in the district court, the Commissioner
moved to remand the case pursuant to the fourth sentence of 42

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2
U.S.C. § 405(g), citing error in the prior proceedings. Over
Weatherall’s opposition, the district court issued an order
reversing the prior decision of the Administrative Law Judge and
remanding the matter for further consideration at the
administrative level.
Weatherall argues that the district court erred in remanding
the case for further consideration by the ALJ because he is
entitled to benefits as a matter of law. In support of this
argument, he relies on, inter alia, a post-decision letter dated
June 14, 1999 from Dr. Jerry Whiteman stating Weatherall’s IQ
scores and a subsequent disability proceeding in which he was
awarded benefits beginning in November 1999 due to mental
retardation.
Given the limited scope of appellate review in Social Security
cases, Weatherall’s request that he be awarded benefits as a matter
of law cannot properly be considered by this court. The
Commissioner states that the validity of Weatherall’s IQ scores is
disputed and that it is not established that the scores have been
properly substantiated. Additionally, evidence concerning the
subsequent proceedings in which Weatherall was awarded DIB and SSI
is not of record in this case. If this court were to entertain
Weatherall’s request, it would be required to re-weigh the evidence
and evaluate its credibility, which exceeds the permissible scope

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1 See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001); Myers
v. Apfel, 238 F.3d 617, 619 (5th Cir. 2001).
2 Johnson v. Bowen, 864 F.2d 340, 347 (5th Cir. 1988);
Chaparro v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987); cf., e.g.,
Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991) (“An ALJ may
make factual determinations on the validity of I.Q. tests.”).
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of appellate review in Social Security cases.1 This type of in-
depth review is properly done by the Commissioner on an
administrative level and not by the courts.2 Accordingly, the
district court’s order reversing and remanding the case for
purposes of conducting further administrative proceedings is
AFFIRMED.
Weatherall also argues that this court should reverse the
ALJ’s decision in this matter and remand the case with an order
that the ALJ consider whether Weatherall’s prior applications for
SSI and DIB filed in March 1986 should be re-opened and revised.
We are affirming the district court’s order reversing and remanding
this matter for further consideration by the ALJ, to whom, as the
Commissioner notes, this argument may be presented in the first
instance. Because there is no reason why Weatherall cannot present
this issue at the administrative level, we decline to entertain
this request.

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