Kenneth J. Lombard v. MICHAEL J. ASTRUE, Commissioner of Social Security

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
September 5, 2007
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 06-20789
KENNETH J. LOMBARD,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court for the
Southern District of Texas, Houston
No. 4:05-CV-527
Before KING, GARZA, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Kenneth J. Lombard, through his guardian, filed an application
for Title XVI supplemental security income (SSI) benefits, alleging
an inability to work because of a schizoid personality disorder and
emotional problems. The Commissioner denied Lombard’s application
at the initial and reconsideration levels, and Lombard requested a
hearing before an administrative law judge (“ALJ”). On August 25,

-- 1 of 6 --

2
2004, the ALJ issued her decision denying Lombard disability
benefits. The ALJ found Lombard disabled since January 9, 2003 on
the basis of alcoholism and substance induced mood disorder. The
ALJ, however, found that Lombard was ineligible for SSI because his
alcoholism was a material, contributing factor to his disability.
On December 23, 2004, the Appeals Council denied Lombard’s request
for review, making the ALJ’s decision final.
Lombard sought review in federal district court under § 205(g)
of the Social Security Act, 42 U.S.C. § 405(g). On May 24, 2006,
the district court granted the Commissioner’s Motion for Summary
Judgment and denied Lombard’s Motion for Summary Judgment. Lombard
now appeals.
On appeal, Lombard makes the following claims:
1. The case should be remanded to the district court because the
district judge failed to decide three of eight issues.
2. The case should be remanded to the Commissioner because the ALJ
and Appeals Council failed to consider and incorporate into the
record properly submitted post-hearing evidence.
3. The district court erred in not remanding the case to the
Commissioner based on new evidence Lombard submitted with his
Motion for Summary Judgment.
4. The ALJ erred by not giving greater weight to the Harris County
probate court’s order adjudicating Lombard incapacitated and the
eight county psychiatric center confinements.
5. The Contract With America Advancement Act (“CAAA”), 42 U.S.C.

-- 2 of 6 --

3
§ 423(d)(2)(C), violates the equal protection rights of alcoholics
who are dramatically recalcitrant.
6. There was not substantial evidence for the ALJ to determine
that Lombard did not have a medically determinable impairment
separate from his alcoholism.
7. The ALJ erred in refusing to subpoena Lombard to attend his own
hearing.
8. There was not substantial evidence for the ALJ’s determination
that Lombard failed to meet Listings 12.03, 12.04, and 12.08.
9. Lombard’s refusal of medical treatment does not violate the
remediability requirement.
Having reviewed the record and briefs, we affirm the judgment
of the district court for the following reasons:
1. The district court’s alleged failure to decide several issues
does not warrant remand to the district court. Whether the
district court properly ruled on all of Lombard’s arguments is
immaterial–this Court’s task is to ensure that substantial evidence
supports the Commissioner’s decision, not whether the district
court properly considered the issues before it. See Cieutat v.
Bowen, 824 F.2d 348, 359-60 (5th Cir. 1987).
2. The additional post-hearing evidence allegedly submitted to and
not considered by the ALJ and Appeals Council does not warrant
remand to the Commissioner. Although there is some dispute as to
whether such evidence was actually submitted to the ALJ and Appeals

-- 3 of 6 --

4
Council, even if we assume that Lombard did properly submit such
evidence, Lombard has failed to show that such evidence would have
changed the outcome of the case. See Kane v. Heckler, 731 F.2d
1216, 1219-20 (5th Cir. 1984) (stating that to sustain error for
failure of the ALJ to properly develop the record, claimant must
show “prejudice” and that the additional evidence “might have
altered the result”).
3. The new evidence Lombard submitted to the district court with
his Motion for Summary Judgment does not warrant remand to the
Commissioner. Lombard failed to demonstrate “good cause for the
failure to incorporate such evidence into the record in a prior
proceeding,” as required by 42 U.S.C. § 405(g). See also Pierre v.
Sullivan, 884 F.2d 799, 803 (5th Cir. 1989) (“The mere fact that a
medical report is of recent origin is not enough to meet the good
cause requirement.”).
4. The ALJ properly considered the Harris County probate court’s
order adjudicating Lombard incapacitated and the eight county
psychiatric center confinements. The ALJ considered this evidence
and gave it some weight, but credited substantial contradictory
evidence, correctly noting that she “was not bound by the previous
disability determinations.” See 20 C.F.R. §§ 404.1504, 416.904.
5. The CAAA does not violate the equal protection rights of
alcoholics who are dramatically recalcitrant. Alcoholics, even
those of the “dramatically recalcitrant” variety, do not comprise

-- 4 of 6 --

1Lombard asserts, in part, that the ALJ’s decision is without
substantial evidence because all but one of the eight psychiatric
center involuntary confinements at the Harris County Psychiatric
Clinic have depression diagnoses. This is not true. The record
shows that only two of the eight psychiatric center confinements
have depression diagnoses.
5
a suspect class, and therefore, rational basis review applies.
Ball v. Massanari, 254 F.3d 817, 824 (9th Cir. 2001). Lombard
offers no cogent argument for why the CAAA is not rationally
related to a legitimate governmental interest. Nevertheless, the
CAAA is rationally related to the government’s interest in
“discourag[ing] alcohol and drug abuse, or at least not . . .
encourag[ing] it with a permanent government subsidy.” Id.
6. There was substantial evidence for the ALJ to determine that
Lombard did not have a medically determinable impairment separate
from his alcoholism. As the district court determined, the medical
evidence and the testimony of the medical expert and other
witnesses provided substantial evidence for the ALJ’s conclusion.
Although some of the evidence supports a contrary conclusion, the
ALJ considered such evidence, gave it due weight, and found that
credible evidence supported a different conclusion.1 See Martinez
v. Chater, 64 F.3d 172, 176 (5th Cir. 1995) (“[T]he ALJ is free to
reject the opinion of any physician when the evidence supports a
contrary conclusion.” (citation omitted)).
7. The ALJ did not err in not subpoenaing Lombard to his own
hearing. First, a party does not have an absolute right to be

-- 5 of 6 --

6
present in person for a hearing to proceed, Torres v. Barnhart, No.
SA-05-CA-0052-RF, 2006 WL 509118, at *3 (W.D. Tex. Feb. 8, 2006)
(citing 42 U.S.C. § 405(b)), and, in any event, Lombard appeared
through his attorney. Second, Lombard’s attorney waived his right
to appear by proceeding with the hearing and stating that he could
not argue that Lombard’s appearance was essential.
8. There was substantial evidence for the ALJ’s determination that
Lombard failed to meet Listings 12.03 (Schizophrenic, Paranoid and
Other Psychotic Disorders), 12.04 (Affective Disorders), and 12.08
(Personality Disorders). Lombard, who bore the burden of proof,
did not explain how certain relevant medical diagnoses satisfied
the specific criteria of the relevant Listings. Furthermore, these
diagnoses were before the ALJ, and the ALJ credited substantial
contradictory evidence that Lombard had no medically determinable
impairment apart from his alcoholism.
9. This Court need not consider Lombard’s remediability argument,
as the ALJ did not rely on Lombard’s refusal to comply with
treatment to deny him benefits.
Based on the foregoing, the order of the district court is
AFFIRMED.

-- 6 of 6 --