Castillo vs. Barnhart, (5th Cir. 2003)

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* Pursuant to 5 T H C IR . R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 02-50740 Summary Calendar ROSIE V. CASTILLO, Plaintiff, ROBERT A. CASTILLO, on behalf of the estate of Rosie V. Castillo, deceased, Appellant, versus JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. Appeal from the United States District Court for the Western District of Texas USDC No. A-01-CV-444-SC February 19, 2003 Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.

PER CURIAM: * Rosie V. Castillo appeals the affirmance of the CommissionerÂ’s denial of her application for Social Security disability benefits.

She argues that: 1) she was not properly notified of her right to obtain representation; 2) the Administrative Law Judge (ALJ) failed The new evidence appellant presents here does not warrant remand, because Brock v. Chater , 84 F.3d 726, 729 n.1 (5 th Cir. 1996). 4 The record includes fo ur separate notices sent to Castillo that advised her of her right to representation by an attorney.

They informed her of the type of assistance an attorney could provide to her during the hearing, that there is a possibility she could qualify for free representation, that she could also acquire counsel who would only receive compensation if she prevailed, and that the Social Security office would withhold a maximum of twentyfive percent of her past due benefits to pay toward the attorneyÂ’s fee. Additionally, one such notice included a two-page list of organizations Castillo could contact to obtain free representation.

At the administrative hearing, the ALJ reminded Castillo that she had been sent at least two notices that advised her she had a right to be represented by an attorney. He then confirmed that, despite these notices, “[Y]ou’re appearing without counsel, is that right?” Castillo responded, “Right.” He continued, “You’re going to represent yourself? You and your husband?” Castillo answered, “Right.” The facts here are far different from those presented in Clark v. Schweiker , 6 52 F.2d 399, 403 (5 t h Cir. 1981), upon which appel lant relies. In that case we held that a benefits claimant had received insufficient notice of her right to counsel b ecause she received only one written not ice, which omitted any mention 3 it does not address Castillo’s physical condition during the time period for which benefits were denied, which ended on June 30, 1995. The motion to remand is therefore DENIED.

Castillo acknowledges that she was told that she could be represented during the proceedings below, but she asserts that she was not adequately informed of relevant facts related to obtaining a representative. A claimant is entitled to adequate notice of her right to counsel at a hearing before an ALJ. 3 We conclude that the numerous written notices Castillo received – along with the ALJ’s reminde r to Castillo at the hearing of her right to counsel – sufficiently informed her of her right to an attorney, and that she validly consented to proceed without representation. 4 Furthermore, we conclude that even if Castillo had validly waived her right to an attorney, she “points to no evidence that would have been adduced and that could have changed the result had” Castillo been represented by an attorney, and therefore has not demonstrated that she was prejudiced due to the absence of counsel at the hearing. 5 Because Castillo was not represente d by counsel at the hearing, the ALJ was under a heightened duty to scrupulously and conscientiously explore all relevant facts. 6 The transcript shows that the ALJ questioned Castillo and her husband regarding her age, education, ability to read and comprehend, past relevant work, impairments, vision problems, and m edical testing and treatment, and gave both Castillo and her husband opportunities to add anything else to the record. We conclude that the ALJ’s questions and the Castillos’ opportunities to add additional information into t he record satisfied the ALJ’s heightened duty to develop the record. 7 Castillo also argues that the Commissioner erred by determining that she could have returned to her past relevant work.

Based on the medical evidence and Castillo’s own testimony, we find that there was substantial evidence to support the Commissioner’s determination that Castillo could perform her past relevant work as of June 30, 1995, the date she was last insured for benefits. 8 Counsel also moves for remand based on our decision in Watson v. Barnhart , 9 asserting that the ALJ erred in not determining whether Castillo could both obtain and maintain employment. This issue was not raised below; this court ordinarily does not review issues raised for the first time on appeal. 1 0 In exceptional circumstances, however, the court “may, in the interests of justice, review an issue that was not raised in the district court.” 11 Watson was issued over two months before the distric t court issued its own opinion in the instant case. In addition, as noted in Watson , the requirement that the ALJ determine the ability to maintain employment, first announced in Si ngletary v. Bowen , 12 a lready had been extended to claimants suffering physic a l disabilities. 13 We also note that counsel has not even explicitly argued that the medical evidence showed that Castillo could not “maintain” employme nt performing her past relevant work. We conclude that appellant has not established “exceptional circumstances” for the failure to raise this issue below. 1 4 Therefore, we decline to review the issue.

MOTION TO SUBSTITUTE PART Y GRANTED; MOTIONS TO REMAND CASE DENIED; AFFIRMED.

1 Villa v. Sullivan , 895 F.2d 1019, 1021 (5 t h Cir. 1990) (citation omitted). 2 Ripley v. Chater , 67 F.3d 552, 555 (5 th Cir. 1995)

that she could qualify for free representation and, in fact, suggested by its tone that “any representative whom the claimant” might seek had the right “to demand a fee for these services.” I d. at 403. The failure of the notice to suggest that the claimant could have received free representation was highlighted at the hearing, when the claimant admitted that she had not sought the services of an attorney because “I don ’t have any money to get one.” I d . In contrast, prior to Castillo’s hearing, she was informed se veral times that she might qualify for free representation, and was presen ted with a lengthy list of organizations in her area that she could contact to pursue this avenue. 5 Brock , 84 F.3d at 729 n.1. As the district court found, no prejudice resulted because, “[c]onsidering the medical evidence dated prior to June 30 , 1995, there was nearly a total lack of objective medical evidence on file on which any type of disability finding could be based.” Appellant cites to no medical evidence, aside from her doctor’s letter that only addresses her medical condition from August 1995 forward, that would have been brought to light by an attorney. 6 Id. at 728

7 See James v. Bowen , 793 F.2d 702, 704-05 (5 th Cir. 1986). 8 See Villa , 895 F.2d at 1021-22. 9 288 F.3d 212 (5 th Cir. 2002). 10 See C hambliss v. Massanari , 269 F.3d 520, 523 (5 t h Cir. 2001). 11 Kinash v. Callahan , 129 F.3d 736, 739 n.10 (5 th Cir. 1997)

12 798 F.2d 818 (5 th Cir. 1986). 13 See Watson , 288 F.3d at 217-18 (citing Wingo v. Bowen , 852 F.2d 827 (5 th Cir. 1988)). 14 See Kinash , 129 F.3d at 738 n.10 (refusing to excuse failure to raise an issue below, finding that Kinas h had “ample time to bring this issue to the district court’s attention”)

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