     Case: 15-30449      Document: 00513460009         Page: 1    Date Filed: 04/11/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                             United States Court of Appeals
                                                                                      Fifth Circuit

                                      No. 15-30449                                  FILED
                                                                                April 11, 2016
                                                                               Lyle W. Cayce
JOHNNIE PAUL HARDMAN,                                                               Clerk

              Plaintiff – Appellant,

v.

CAROLYN W. COLVIN, Acting U.S. Commissioner of Social Security,

              Defendant – Appellee.




                   Appeal from the United States District Court
                      for the Western District of Louisiana
                             USDC No. 2:12-CV-2961


Before REAVLEY, JOLLY, and ELROD, Circuit Judges.
PER CURIAM:*
       Appellant Johnnie Paul Hardman appeals the judgment of the district
court affirming the Social Security Commissioner’s denial of Hardman’s
application for disability benefits. Hardman also moves to remand this matter
back to the Commissioner for a rehearing in light of allegedly new, material
evidence. Because the Commissioner’s decision is lawful and supported by
substantial evidence, we AFFIRM, and because Hardman forfeited the remand


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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issue by not raising it in the district court or in his appellate briefs, we DENY
Hardman’s motion to remand.
                                       I.
      Hardman applied for supplemental security income benefits on the basis
of disability in April 2010. Hardman alleged that he was disabled due to sleep
apnea, gout, arthritis, high blood pressure, diabetes, heart murmur, shortness
of breath, and difficulty walking.     As part of Hardman’s application, he
submitted a function report in which he was asked: “How well do you follow
written instructions?” Hardman responded, “I can’t read that good.” After his
application was initially denied, Hardman requested an administrative
hearing, which was held in May 2011.
      Hardman and a vocational expert testified at the hearing. When the
administrative law judge (“ALJ”) asked Hardman to state his highest level of
education, Hardman responded that he could not remember, and when asked
about the fact that he had put “ninth grade” on his application documents,
Hardman responded, “[i]t might have been eighth.” Hardman also testified
that he had never attempted to get a GED. When asked why he could not work,
Hardman responded that he “get[s] real tired during the day” and “would be in
serious pain all during the day” and also noted that he took medications for
diabetes and high blood pressure. When asked whether he was looking for
work, Hardman replied that he looked for work “at least every time and chance
I get,” and when pressed for more specific testimony, Hardman responded that
the last time he tried to look for work was “[m]aybe a couple of months ago.”
When asked specifically where he had looked for work, he responded:
“Anything that don’t have to do with or requires reading or writing and my
physical condition will allow me to do.” Hardman stated he had a hard time
finding work because he was “not educated.”


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      The vocational expert then testified that, given Hardman’s physical
limitations as characterized to her by the ALJ, Hardman was capable of
working a couple of jobs, including as a “light Office Helper,” as a “light
Information Clerk,” and as a “General Office Clerk, light.” The vocational
expert testified that Hardman could work those jobs with his alleged
restrictions and his education level of eighth or ninth grade, as those jobs
required reading or math skills up to only a sixth grade level.        To this,
Hardman responded that he “[did not] know how to read or do math” and that
he had “no education.”    In response, the ALJ crafted a hypothetical that
assumed as true Hardman’s testimony that he could not read or write, asking
the vocational expert to “change the assumptions to functionally illiterate.”
The vocational expert responded that an illiterate person with Hardman’s
physical restrictions could work only a “Small Assembly sedentary” position,
of which there were 391 in Louisiana and 28,554 in the United States. With
no other evidence offered from either the vocational expert or Hardman, the
ALJ concluded the hearing.
      The ALJ denied Hardman’s application for disability benefits. The ALJ
found at step five of the sequential five-step analysis that Hardman was not
disabled because he was able to perform jobs that exist in significant numbers
in the national economy, specifically “Light Office Helper,” “General Office
Clerk,” “Light Information Clerk,” and “Sedentary Small Assembly Worker.”
Regarding Hardman’s education level, the ALJ considered Hardman’s
testimony that he had “no education” and could not read or write, but, finding
that testimony not credible and uncorroborated, the ALJ found that Hardman
had a ninth-grade education, as Hardman had reported in his application. The
ALJ reasoned that Hardman’s allegations of complete illiteracy were “not
corroborated by the medical record or third party statements” and were


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“inconsistent with his reported 9th grade education, his obtaining a driver’s
license, and his report of not being able to ‘read that good.’” The ALJ also noted
that in a Psychiatric Review Technique assessment performed in July 2010,
the non-examining state psychologist concluded that Hardman had “no
medically determinable mental impairment.”            None of Hardman’s medical
reports indicated any type of mental impairment or illiteracy.
        Hardman thereafter obtained a non-attorney representative and filed a
request for appellate review of the ALJ’s decision. In his request for review to
the Appeals Council, Hardman included a new piece of evidence—a February
2012 psychological evaluation by Dr. Jerry L. Whiteman that stated that Dr.
Whiteman thought Hardman had “moderate mental retardation” and that
Hardman had scored a 42 on the Wechsler Adult Intelligence Scale – IV test,
with all of his index scores at 50 or below. Dr. Whiteman’s report observed
that     Hardman’s      “thought   processes/stream    of   mental    activity   lacks
organization and direction.” The report indicated that Hardman was “unable
or unwilling” to recite the alphabet, that he did not “make any effort” to count
by twos or threes, and made no effort to spell “girl” or “boy,” though he did
correctly spell his name and the word “go.”           The report also stated that
Hardman’s “judgment and insight” and “short term memory and concentration
skills” are “poor.” Dr. Whiteman marked that Hardman had “extreme” deficits
in his ability to “make judgments on simple work-related decisions” and
“serious” limitations in his ability to understand, remember, and carry out
short, simple instructions and interact appropriately with co-workers and
supervisors.     Dr. Whiteman stated that Hardman’s mental impairments
“appear[] to be a life long deficit, existing . . . prior [to the] age [of] twenty one”
but did not explain how or upon what evidence he came to that conclusion. The
Appeals Council considered this new evidence along with Hardman’s reasons


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for disagreement with the ALJ’s decision but concluded that the information
did “not provide a basis for changing the [ALJ’s] decision” and denied
Hardman’s request for review.
      Hardman appealed the Commissioner’s final decision to the district
court, alleging (among other issues not relevant to this appeal) that: (1) the
ALJ erred by not ordering post-hearing intelligence testing once Hardman
claimed that he could not read or write; and (2) the hypothetical that the ALJ
posed to the vocational expert was defective because it did not expressly
mention the four “severe impairments” recognized by the ALJ earlier in his
opinion. Hardman also requested in a supplemental pleading that the district
court consider as evidence a subsequent 2014 decision by a Louisiana state
agency granting Hardman disability benefits for intellectual disability. The
district court, adopting the Report and Recommendation of the magistrate
judge, affirmed the Commissioner’s decision.
      Hardman now appeals and argues that: (1) post-hearing intellectual
testing should have been ordered by the ALJ; (2) the hypothetical that the ALJ
posed to the vocational expert was defective; (3) the Appeals Council
inadequately considered or improperly evaluated his new evidence of mental
impairment; and (4) the state agency’s February 2014 award of disability
benefits for intellectual disability compels reversal of the Commissioner’s
decision in this case. After briefing concluded, Hardman filed a motion to
remand to the Commissioner, which this court carried with the case.
                                     II.
     The court reviews the district court’s decision de novo, and our review of
the Commissioner’s decision, like the district court’s review, is limited to
whether the Commissioner’s decision is supported by substantial evidence in
the record and whether the proper legal standards were applied. Morgan v.


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Colvin, 803 F.3d 773, 776 (5th Cir. 2015).        Substantial evidence is “such
relevant evidence as a reasonable mind might accept to support a conclusion”
and constitutes “more than a mere scintilla” but “less than a preponderance”
of evidence. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
                                       III.
                                        A.
      Hardman first argues that the Commissioner erred by failing to order
post-hearing intellectual testing because Hardman’s testimony during the
hearing “placed the issue of a potential intellectual disability, mental
retardation, squarely before the ALJ even though Appellant did not list
intellectual disability or mental retardation in his application for benefits.” In
other words, Hardman argues that his testimony that he had no education and
could not read, write, or do math should have caused the ALJ to suspect that
Hardman had an intellectual disability and to further develop the record on
that issue.
      When a “full and fair record” is lacking, the ALJ will not have “sufficient
facts on which to make an informed decision” and thus his decision will not be
“supported by substantial evidence.” Kane v. Heckler, 731 F.2d 1216, 1219 (5th
Cir. 1984). However, “[t]he ALJ’s duty to investigate . . . does not extend to
possible disabilities that are not alleged by the claimant or to those disabilities
that are not clearly indicated on the record.” Leggett v. Chater, 67 F.3d 558,
566 (5th Cir. 1995). As a result, our case law “requires . . . further development
of the record ‘only when the claimant presents evidence sufficient to raise a
suspicion concerning a non-exertional impairment,’” and “[i]solated comments
in the record are insufficient, without further support, to raise a suspicion of
non-exertional impairment.” Clary v. Barnhart, 214 F. App’x 479, 481 (5th Cir.




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2007) (citing Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996); Pierre v.
Sullivan, 884 F.2d 799, 802–03 (5th Cir. 1989)).
       In Pierre, this court held that isolated comments about the claimant’s
low intelligence were insufficient to raise suspicion that the claimant had an
intellectual disability. 884 F.2d at 802–03. The court in Pierre noted that, like
Hardman, the claimant had “never listed mental retardation in her request for
benefits,” she “never requested that an intelligence test be performed,” and the
“doctors and the psychologist who examined [her] did not suggest that her
intelligence be tested.” Id. at 802. In Pierre, the claimant’s physicians noted
that she could not perform most of her daily activities, could only perform tasks
that “would not tax her academically or intellectually,” could not read and
write due to a possible “deficiency in this area,” “had difficulty with the days of
the week” and could not correctly name the President of the United States. Id.
The court noted that other parts of the medical reports and evidence indicated
that the claimant’s mental abilities were normal. Id. at 802–03. The court
concluded that “[w]hen there is no contention that a claimant is mentally
retarded, a few instances in the record noting diminished intelligence do not
require that the ALJ order an I.Q. test in order to discharge his duty to fully
and fairly develop the record.” Id. at 803. Similarly here, Hardman never
mentioned that he may have had an intellectual disability and did not claim to
have a medical impairment or mention that he had sought treatment for one.
       “[T]he claimant has the burden of proving his disability by establishing
a physical or mental impairment.” Jones v. Bowen, 829 F.2d 524, 526 (5th Cir.
1987). 1 A consultative examination is required to develop a “full and fair


       1In Jones, this court noted that the claimant, like Hardman, “did not list a mental
non-exertional impairment in his original request for benefits,” nor did he “ever request[] a
consultative examination,” but relied on only his own statements about symptoms that “do[]
not even approach the level of a mental or emotional impairment as defined by SSA

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record” only if “the record establishes that such an examination is necessary to
enable the [ALJ] to make the disability decision.” Id. Hardman’s isolated
comments about his lack of education and inability to read, write, or do math,
without more, do not establish that post-hearing testing was necessary to
enable the ALJ to determine Hardman’s disability status.
      The ALJ had sufficient facts before him with which to determine whether
Hardman was disabled. The record was replete with medical documents that
spanned    years,    including    a    psychiatric   residual   functional    capacity
assessment, and none of the medical records suggested that Hardman was
illiterate. The record also contained evidence that Hardman had finished
eighth or ninth grade, had obtained a driver’s license, and had lived on his own.
Hardman himself indicated that he could read, though not very well. Hardman
also indicated on his disability report that he could “read and understand
English” and “write more than [his] name in English.” The ALJ did not credit
Hardman’s testimony about his alleged illiteracy, and we are not well
positioned to second-guess that credibility determination so long as the ALJ’s
ultimate finding was supported by substantial evidence. See Sun v. Colvin,
793 F.3d 502, 508 (5th Cir. 2015).              Hardman did not allege a mental
impairment, and a mental impairment was not “clearly indicated” by the
record. See Leggett, 67 F.3d at 566. We find no error in the fact that the
Commissioner did not order post-hearing intellectual testing.
                                           B.
      Next, Hardman asserts that the ALJ “posited a defective step five
hypothetical” to the vocational expert such that the vocational expert’s
response was “meaningless.”           Hardman complains that although the ALJ



regulations.” Id. (claimant complained of being emotionally upset and experiencing anger
and depression).

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found four severe impairments (diabetes, high blood pressure, obesity, and
osteoarthritis), the ALJ’s hypothetical “did not contain any of the
impairments.”
       An ALJ’s hypothetical is “defective unless[:] (1) it incorporates
reasonably all disabilities of the claimant recognized by the ALJ, and (2) the
claimant or [his] representative is afforded the opportunity to correct
deficiencies in the hypothetical.” 2 Hardman points to no authority requiring
an ALJ to expressly name the recognized severe impairments in a hypothetical
posed to a vocational expert. Rather, as Hardman acknowledges, an ALJ’s
hypothetical need only “incorporate reasonably” those impairments. Moreover,
Hardman “does not contend that the ALJ’s questions failed to reasonably
incorporate the disabilities recognized by the ALJ, or that the hypotheticals
were inconsistent with the ALJ’s findings.” See Vaught v. Astrue, 271 F. App’x
452, 455 (5th Cir. 2008). Indeed, the limitations recognized by the ALJ in his
decision were reasonably incorporated into the hypothetical posed to the
vocational expert. 3 See, e.g., Glover v. Barnhart, 81 F. App’x 513, 514–15 (5th



       2  Bellow v. Chater, 66 F.3d 323, 1995 WL 534955, at *1 (5th Cir. Aug. 16, 1995)
(unpub.) (citing Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994) (“Unless the hypothetical
question posed to the vocational expert by the ALJ can be said to incorporate reasonably all
disabilities of the claimant recognized by the ALJ, and the claimant or his representative is
afforded the opportunity to correct deficiencies in the ALJ’s question by mentioning or
suggesting to the vocational expert any purported defects in the hypothetical questions
(including additional disabilities not recognized by the ALJ’s findings and disabilities
recognized but omitted from the question), a determination of non-disability based on such a
defective question cannot stand.”)).
        3 The ALJ found in his decision that Hardman had the residual functional capacity

(“RFC”) to “perform light work, generally defined in 20 CFR 416.967(b) as work requiring
lifting/carrying no more than 10 pounds frequently and 20 pounds occasionally, and no more
than 6 hours of standing/walking in an 8 hour workday, except that claimant is restricted to
no more than 2 hours of standing/walking in an 8 hour workday, with the additional
nonexertional limitations of occasional climbing ramps and stairs, balancing, stooping,
kneeling, crouching, and crawling, and no climbing of ladders, ropes or scaffolds.” The ALJ
noted that Hardman’s “medically determinable impairments could reasonably be expected to
cause the alleged symptoms” and that “objective medical evidence and clinical findings are

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Cir. 2003) (applying Bowling standard and finding hypothetical not defective
because hypothetical reasonably incorporated limitations recognized by ALJ,
limitations were supported by substantial evidence, and ALJ gave applicant
opportunity to suggest additional limitations).
       The record also shows that Hardman was given the opportunity to
correct any deficiencies in the hypothetical.              When the vocational expert
responded to the ALJ’s first hypothetical, Hardman asked what the vocational
expert was talking about. The ALJ asked the vocational expert to explain to
Hardman the types of jobs she thought Hardman could perform, to which
Hardman made objections based on his reading and math abilities. Hardman
did not object to any of the physical limitations used in the hypothetical posed
to the vocational expert. See id. As such, the hypothetical that the ALJ posed
to the vocational expert was not defective. See Goodman, 275 F.3d 45, at *1
(holding that ALJ’s hypothetical was not defective when claimant was
“afforded an adequate opportunity to correct any real or asserted deficiencies
in the ALJ’s question”); Madis v. Massanari, 277 F.3d 1372, at *1 (5th Cir.
2001) (unpub.) (holding ALJ’s hypothetical appropriate because it reasonably



fully consistent with the above residual functional capacity.” At the hearing, the ALJ posed
the following hypothetical to the vocational expert: “For the rest of my questions, I’d like you
to assume a younger individual as that currently defined in the CFR Part-416 with the same
work history and educational background. If I were to find that individual can lift and carry
twenty pounds occasionally and ten frequently. Can stand and/or walk a total of two hours
out of an eight hour work day. Can sit about six hours in an eight hour work day. The
individual can occasionally climb ramps and stairs and never climb ladders, ropes and
scaffolds. Can occasionally balance, stoop, kneel, crouch, or crawl.” The ALJ’s RFC
determination is supported by substantial evidence—the ALJ thoroughly summarized and
analyzed the medical evidence, and the medical evidence supports the ALJ’s recognition of
the specified limitations. See Dise v. Colvin, No. 15-30339, -- F. App’x --, 2015 WL 8593417,
at *4 (5th Cir. Dec. 11, 2015) (holding that because the “ALJ’s question here tracked his
residual functional capacity assessment,” and the RFC assessment was supported by
substantial evidence, the ALJ’s hypothetical properly accounted for the claimant’s
impairments).


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incorporated all disabilities recognized by ALJ and because ALJ gave claimant
opportunity to supplement hypothetical at the evidentiary hearing).
                                       C.
      Hardman next argues that the Appeals Council erred in declining to
review the ALJ’s decision upon Hardman’s submitting new evidence of mental
impairment—the February 2012 report by Dr. Whiteman stating that his
examination of Hardman suggested “moderate mental retardation.” Hardman
submitted this evidence to the Appeals Council as part of his request for review
of the ALJ’s 2011 decision. The Appeals Council declined to review the ALJ’s
decision because it found no basis under its rules for reviewing the ALJ’s
decision. Hardman argues the new evidence should have resulted in reversal
of the ALJ’s decision because the new evidence “contradict[s]” the ALJ’s
disability determination.
      When a claimant submits new evidence to the Appeals Council, the
Council must consider the evidence if it is “new and material” and if it “relates
to the period on or before the ALJ’s decision.” Sun v. Colvin, 793 F.3d 502, 511
(5th Cir. 2015) (citing 20 C.F.R. § 404.970(b)). If the evidence is considered,
then the Appeals Council will review the ALJ’s decision only if the ALJ’s
“action, findings, or conclusion is contrary to the weight of the evidence” in the
record as a whole. Id. Otherwise, the Appeals Council will deny the claimant’s
request for review. Id. The regulations “do not require the [Appeals Council]
to provide a discussion of the newly submitted evidence or give reasons for
denying review.” Id.
      Here, the Appeals Council expressly stated that it “considered . . . the
additional evidence” Hardman had submitted. As such, the only question is
whether the Appeals Council erred in concluding that the new evidence did not
make the ALJ’s decision “contrary to the weight” of the record evidence on the


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whole. Sun, 793 F.3d at 511; 20 C.F.R. § 404.970(b). The analysis in the
magistrate judge’s Report and Recommendation is persuasive—though Dr.
Whiteman’s report could support a finding that Hardman suffers from
“moderate mental retardation,” other evidence in the record contradicts the
report and could have supported a contrary finding. Moreover, Dr. Whiteman’s
report arguably was not credible. As the magistrate judge explained, Dr.
Whiteman’s report indicated that Hardman could have been merely
“unwilling” to do the majority of the tasks used to test his intelligence,
including reciting the alphabet, counting by twos or threes, and spelling “girl”
and “boy.” The report also opined that Hardman’s extreme limitations had
existed prior to the age of twenty-one without pointing to any medical evidence
to support that opinion.
      Even assuming that Dr. Whiteman’s report is credible, it is contradicted
by medical and third-party evidence regarding Hardman’s cognitive and
adaptive abilities. For example, the field officer who interviewed Hardman on
the phone regarding his disability application indicated on the disability report
that Hardman had no difficulty with “Understanding,” “Coherency,”
“Concentrating,” “Talking,” or “Answering.”      None of the medical records
(which included psychiatric evaluations and in-person evaluations) indicated
mental impairment, and the records spanned years and were submitted by
various physicians.
      Here, even with Dr. Whiteman’s report, substantial evidence supports
the ALJ’s denial of benefits. See Sun, 793 F.3d at 508 (“[T]he court . . . may
not reweigh the evidence or substitute its judgment for the Commissioner’s.”).
We have held that even when new and material evidence submitted to an
Appeals Council is “significant” and “casts doubt on the soundness of the ALJ’s
findings,” the Appeals Council does not err in refusing to review the claimant’s


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case if it can be determined that substantial evidence nevertheless supports
the ALJ’s denial of benefits. Sun, 793 F.3d at 511–12. Such is the case here.
                                           D.
      Hardman’s last point asserts that his 2014 award of disability benefits
from the State Agency Disability Determination Services establishes that the
Commissioner erred by denying him disability benefits in 2012. 4 We have
previously held that a subsequent approval of benefits is not relevant to
whether the ALJ’s decision in this case is supported by substantial evidence.
See Winston ex rel. D.F. v. Astrue, 341 F. App’x 995, 998 (5th Cir. 2009); cf.
Simmons v. Colvin, -- F. App’x --, 2015 WL 9311373, at *3 (10th Cir. Dec. 23,
2015) (stating that a favorable subsequent determination by the Commissioner
“does not indicate that the original decision was in any way erroneous,” citing
Winston, and noting that under § 405(g), the court’s review is “limited to the
agency record developed in conjunction with the decision before it”).                The
district court correctly limited its review of the Commissioner’s determination
to the record that was available to the Commissioner at the time she made her
final determination. See Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir. 1991)
(explaining that the court is “constrained by the record which was available to
the ALJ” and “cannot compare the ALJ’s foresight with our own hindsight”).




      4   In February 2014, the State Agency Disability Determination Services awarded
Hardman per se/presumptive entitlement of benefits for intellectual disability pursuant to
the Medical Vocational Guideline Listing Section 12.05(B), which Hardman states became
effective on August 8, 2013. See 20 C.F.R. 404, Subpt. P, App’x I, § 12.05(B). Hardman
admits that he does not know what medical evidence supported the DDS’s award, as the
Disability Determination and Transmittal does not state the medical evidence upon which
the award is based. The Disability Determination and Transmittal indicates only that a
doctor named Jessie F. Dees concluded that Hardman qualified for 12.05(B) disability.
According to Hardman, the determination was made based upon Hardman’s application and
medical evidence, which included Dr. Whiteman’s report.

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                                             IV.
       After briefing had concluded in this appeal, Hardman filed a motion
asking this court to remand his case back to the Commissioner for a rehearing
in light of the 2014 award of benefits he received from the DDS for intellectual
disability. Hardman moves to remand pursuant to the sixth sentence in 42
U.S.C. § 405(g), which allows a district court to remand a case back to the
Commissioner for a new evidentiary hearing if the claimant produces “new and
material” evidence and shows good cause for his failure to provide that
evidence to the Commissioner in the prior proceeding. 5 The Commissioner
asserts that Hardman forfeited his remand arguments because Hardman did
not request or brief a “sentence six remand” before the district court. The
Commissioner states that Hardman never requested a “sentence-six remand”
from the district court—despite submitting the DDS’s 2014 award as evidence
for the district court to consider—and “never made any argument or showing
that the evidence met the statute’s new, material, and good cause
requirements.”
       “Arguments not raised in the district court cannot be asserted for the
first time on appeal.” Greenberg v. Crossroads Sys. Inc., 364 F.3d 657, 669 (5th
Cir. 2004). A party must “press and not merely intimate the argument during
the proceedings before the district court.” Keelean v. Majesco Software, Inc.,
407 F.3d 332, 340 (5th Cir. 2005). “It is well settled in this Circuit that the
scope of appellate review on a summary judgment order is limited to matters
presented to the district court.” Id. at 339. We have applied this principle in
the Social Security appeals context. See Huskey v. Colvin, 560 F. App’x 367,


       5See 42 U.S.C. § 405(g) (“The court may, . . . at any time order additional evidence to
be taken before the Commissioner of Social Security, but 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 . . . .”).

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370 (5th Cir. 2014) (“We will not consider on appeal an issue that previously
has not been presented to the district judge unless such review is necessary to
prevent a miscarriage of justice.” (internal quotation marks omitted)).
      Here, as in Huskey, Hardman did not assert arguments for a sentence-
six remand under § 405(g) to the district court, and Hardman “has not
explained why he did not raise this . . . before the district court or how not
considering it would be a miscarriage of justice.” Id. There are multiple
elements that must be met before a sentence-six remand under § 405(g) can be
granted, and § 405(g) designates the district court as the actor who should
determine whether such a remand is warranted. See 42 U.S.C. § 405(g). The
appellate court is only to review the district court’s decision “in the same
manner” as it would review any other district court decision. Id. Hardman
also failed to mention his remand arguments in his initial brief.          As we
ordinarily do not consider claims “raised for the first time in a reply brief,” we
will not consider this claim, which was raised after the reply brief. See Yohey
v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). Because Hardman has forfeited
this issue, we DENY his motion to remand.
      AFFIRMED.




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