Lopez v. Massanari

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 31, 2001
• Docket: 01-20108
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 01-20108 Summary Calendar

ANDRES LOPEZ,

Plaintiff-Appellant,

versus

LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY,1

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Texas USDC No. H-00-CV-1653

August 29, 2001

Before GARWOOD, BARKSDALE and DeMOSS, Circuit Judges. PER CURIAM:**

Plaintiff-appellant Andres Lopez (Lopez) appeals the district

court’s summary judgment affirming the Social Security

Commissioner’s decision that he is not entitled to supplemental

1 Larry G. Massanari has replaced Kenneth S. Apfel as acting Commissioner of Social Security and is therefore substituted in accordance with Fed. R. App. P. 43(c)(2). ** 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 R. 47.5 the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. security income benefits.

Our review of a denial of disability insurance benefits is

limited to whether the Commissioner applied the proper legal

standards and whether the Commissioner’s decision is supported by

substantial evidence on the record as a whole. Anthony v.

Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). There was substantial

evidence to support the Commissioner’s decision that Lopez’s

impairments did not meet or equal a listed impairment because he

failed to comply with his prescribed treatment. See id.; 20 CFR §§

404.1530, 416.930; Johnson v. Sullivan, 894 F.2d 683, 685 n.4 (5th

Cir. 1990). The medical records for the period June 1994 to April

18, 1995, were not considered by the Commissioner because a

previous administrative decision adjudicated Lopez’s benefit

entitlements through April 18, 1995. See Muse v. Sullivan, 925

F.2d 785, 787 n.1 (5th Cir. 1991). Lopez’s argument that the

district court applied the wrong standard of review in granting the

Commissioner’s summary judgment motion is without merit. This

claim is essentially an argument that there is not substantial

evidence in the record to support the Commissioner’s decision that

Lopez is not disabled.

We need not consider Lopez’s arguments regarding the need for

an electroencephalogram (EEG) as the Commissioner did not dispute

that Lopez had a seizure disorder. Lopez makes the following

arguments for the first time on this appeal, namely: that the

2 Commissioner erred in finding his medication was never increased;

that the Commissioner failed to determine the frequency of his

seizures; that the Commissioner failed to determine why his

Dilantin levels were not in the therapeutic range; that the

Commissioner erred in concluding that toxic levels of Dilantin

indicated noncompliance; that the Commissioner failed to consider

the after-effects of heavier dosages of dilantin; and that the

Commissioner failed to consider that his epilepsy, skeletal

injuries, psychosis, gum swelling, and teeth loss, in combination,

met or equaled the listed impairment of 11.02 (major motor

seizures). Lopez does not explain his failure to raise these

issues before the district court. As this case does not present

exceptional circumstances, we will not address these arguments.

Kinash v. Callahan, 129 F.3d 736, 739 n.10 (5th Cir. 1997).

Inasmuch as Lopez failed to show that the Commissioner’s

decision was not based on the proper legal standards or that it was

not supported by substantial evidence, the district court’s summary

judgment affirming the Commissioner’s denial of benefits is

AFFIRMED.