Johnnie Hardman v. Carolyn Colvin, Acting Cmsnr

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 15-30449 United States Court of Appeals

Fifth Circuit

FILED

JOHNNIE PAUL HARDMAN, April 11, 2016

Lyle W. Cayce

Plaintiff – Appellant, Clerk

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

Before REAVLEY, JOLLY, and ELROD, Circuit Judges.

JENNIFER WALKER ELROD, Circuit Judge:

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

issue by not raising it in the district court or in his appellate briefs, we DENY

Hardman’s motion to remand.

No. 15-30449

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.”

The vocational expert then testified that, given Hardman’s physical

limitations as characterized to her by the ALJ, Hardman was capable of

2

No. 15-30449

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

“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

3

No. 15-30449

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

for disagreement with the ALJ’s decision but concluded that the information

4

No. 15-30449

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.

Colvin, 803 F.3d 773, 776 (5th Cir. 2015). Substantial evidence is “such

5

No. 15-30449

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.

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)).

6

No. 15-30449

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

record” only if “the record establishes that such an examination is necessary to

1 In 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

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

and depression).

7

No. 15-30449

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

found four severe impairments (diabetes, high blood pressure, obesity, and

osteoarthritis), the ALJ’s hypothetical “did not contain any of the

impairments.”

8

No. 15-30449

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

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

9

No. 15-30449

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

incorporated all disabilities recognized by ALJ and because ALJ gave claimant

opportunity to supplement hypothetical at the evidentiary hearing).

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).

10

No. 15-30449

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

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.

11

No. 15-30449

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

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.

12

No. 15-30449

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.

13

No. 15-30449

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 . . . .”).

14

No. 15-30449

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.

15