* 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that this opinion should not be published and is not precedent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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 00-30914

Summary Calendar

 

BOBBY R. DEMARS,

Plaintiff-Appellant,

versus

WILLIAM A. HALTER,

Acting Commissioner of Social Security,

Defendant-Appellee.

- - - - - - - - - -

Appeal from the United States District Court

for the Western District of Louisiana

USDC No. 99-CV-1137

- - - - - - - - - -

March 13, 2001

Before DAVIS, JONES and DeMOSS, Circuit Judges.

PER CURIAM:*

Bobby R. Demars appeals the district court’s judgment

affirming the Commissioner’s decision denying his request for

disability insurance benefits and supplemental security income

pursuant to 42 U.S.C. § 405. We review the Commissioner’s

decision to determine whether it is supported by substantial

evidence in the record and whether the Commissioner applied the

proper legal standards in evaluating the evidence. Ripley v.

Chater, 67 F.3d 552, 555 (5th Cir. 1995). Demars argues that (1)
No. 00-30914 

-2-

the administrative law judge (ALJ) failed to consider all of his

impairments and that the evidence supports a finding that he met

or equaled Listings 1.05(C), 1.03(A), and 12.04; (2) the ALJ

should have consulted with a medical expert when assessing

Demars’ disability; and (3) the ALJ should have consulted with a

vocational expert when assessing Demars’ disability.

Dr. Edwin Simonton examined Demars and concluded that there

were no objective findings of impairment regarding his back

condition and that he is able to perform any activity for which

he is otherwise qualified. Thus, the ALJ’s conclusion that

Demars does not have an impairment resulting from his back

condition is supported by substantial evidence. The issue

whether Demars met or equaled the criteria for depression or

arthritis at Listings 1.03(A) and 12.04 was not raised in the

district court. As such, this court need not consider the issue. 

See Leverette v. Louisville Ladder Co., 183 F.3d 339, 341-42 (5th

Cir. 1999)(explaining that this court will not allow a party to

raise an issue for the first time on appeal merely because it

might prevail on a different theory), cert. denied, 120 S. Ct.

982 (2000). 

Because Dr. Simonton unequivocally found no impairment and

opined that Demars was capable of performing any activity, there

was no need to appoint a medical expert. Cf. Villa v. Sullivan,

895 F.2d 1019, 1023-24 (5th Cir. 1990)(relying upon a

nonexamining physician is appropriate only if nonexamining

physician’s conclusions are not contrary to examining physician’s

opinion). Likewise, the ALJ properly relied on the guidelines
No. 00-30914 

-3-

and was not required to appoint a vocational expert because the

ALJ found no significant nonexertional limitations. See Selders

v. Sullivan, 914 F.2d 614, 618-19 (5th Cir. 1990). Demars has

not demonstrated that he is entitled to a remand for

consideration of his alleged nonexertional impairments. See

Leggett v. Chater, 67 F.3d 558, 566-67 (5th Cir. 1995). 

The ALJ’s decision to deny benefits was supported by

substantial evidence and the ALJ applied the proper legal

standards in evaluating the evidence. Accordingly, the district

court’s judgment is AFFIRMED.