Burbank-Emvula v. Apfel

• Court: Court of Appeals for the Fifth Circuit
• Decided: July 20, 1999
• Docket: 98-20634
• Status: Unpublished

Opinion

No. 98-20634 -1-

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 98-20634 Summary Calendar

DEBORAH ANN BURBANK-EMVULA,

Plaintiff-Appellant,

versus

KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, ET AL.,

Defendants,

KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Southern District of Texas USDC No. H-95-CV-5068 - - - - - - - - - - July 19, 1999

Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.

PER CURIAM:*

Deborah Ann Burbank-Emvula appeals from the district court’s

order denying her motion filed pursuant to Fed. R. Civ. P. 60(b),

seeking relief from the district court’s judgment affirming the

denial of her application for disability insurance benefits and

supplemental security income. She has also filed six motions to

supplement the record. While we may not issue factual findings

on new evidence, we may review such evidence to determine whether

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 98-20634 -2-

the case should be remanded to the Commissioner of Social

Security for consideration of the new evidence. Haywood v.

Sullivan, 888 F.2d 1463, 1471 (5th Cir. 1989). We may so remand

only “upon a showing that there is new evidence which is material

and that there is good cause for the failure to incorporate such

evidence into the record in a prior proceeding.” 42 U.S.C.

§ 405(g)(19).

The new medical evidence submitted by Burbank-Emvula is not

material because it is cumulative and does not relate to the

relevant time period. See Latham v. Shalala, 36 F.3d 482, 483

(5th Cir. 1994). She has also failed to show good cause for her

failure to obtain this evidence previously. See Haywood v.

Sullivan, 888 F.2d 1463, 1472 (5th Cir. 1989). The financial

earnings statements submitted by Burbank-Emvula are irrelevant

and not material because her application for benefits was denied

based on a finding that she was not disabled. Burbank-Emvula

seeks to supplement the record with a taped copy of the

administrative hearing held before the Administrative Law Judge

(ALJ) because she believes the transcript to be erroneous and

inconsistent. Examination of the transcript reveals that her

contention has no merit. Finally, Burbank-Emvula has submitted a

copy of the exhibits page to the ALJ’s decision. The information

contained on this page is already contained in the record.

Accordingly, all of her motions to supplement the record are

DENIED.

An appeal from the ruling on a Rule 60(b) motion may not be

treated as an appeal from the underlying judgment itself. Aucoin No. 98-20634 -3-

v. K-Mart Apparel Fashion Corp., 943 F.2d 6, 8 (5th Cir. 1991).

Our review of the denial of a Rule 60(b) motion is limited to

whether the denial was “so unwarranted as to constitute an abuse

of discretion.” Seven Elves, Inc. v. Eskenazi, 635 F.2d 396, 402

(5th Cir. 1981).

Burbank-Emvula has proffered many arguments on appeal, but

only four of these seek relief available in a Rule 60(b) motion.

See Fed. R. Civ. P. 60(b). Burbank-Emvula’s conclusory

contention of unspecified procedural error is inadequately

briefed and is therefore deemed abandoned. See Yohey v. Collins,

985 F.2d 222, 224-25 (5th Cir. 1993). As stated previously, her

argument that the administrative hearing transcript is erroneous

lacks merit. Burbank-Emvula concedes that the new medical

evidence she has submitted is the same as the evidence considered

by the ALJ. See Brown v. Petrolite Corp., 965 F.2d 38, 50 (5th

Cir. 1992)(newly discovered evidence justifies Rule 60(b) relief

only if it is material and controlling and clearly would have

produced a different result had it been presented before the

original judgment was entered). Finally, Burbank-Emvula argues

that the district court committed a mistake of law in affirming

the ALJ’s decision that she is not disabled due to obesity.

Burbank-Emvula raised this issue, which involves the resolution

of factual question, for the first time on appeal; it will not be

considered. See Diaz v. Collins, 114 F.3d 69, 71 n.5 (5th Cir.

1997). The district court did not abuse its discretion by

denying Burbank-Emvula’s Rule 60(b) motion.

AFFIRMED.