* 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this opinion should not be published and is not precedent except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

FILED

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,
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.
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
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
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
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.