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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

February 19, 2003
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:
Rosie V. Castillo appeals the affirmance of the Commissioner'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
to properly develop the record; 3) the ALJ erred in determining
that she could return to her past relevant work; and 4) the ALJ

failed to determine whether she would be able to maintain
employment. "Appellate review of the [Commissioner's] denial of
disability benefits is limited to determining whether the decision
is supported by substantial evidence in the record and whether the
proper legal standards were used in evaluating the evidence."1
Because of Castillo's recent death, counsel has moved to
substitute Castillo's husband as a party. This motion is GRANTED.
Counsel has also moved to remand the case to the administrative
level so that new evidence of Castillo's impairment can be
addressed. This new evidence consists of the fact of Castillo's
recent death, which appellant argues indicates that Castillo's
condition was more grave than previously recognized, and a letter
from Castillo's physician, in which he determined that Castillo was
in poor physical health from August 1995 on. New evidence may be
grounds for remand if it is material; this materiality inquiry
requires determining whether the evidence relates to the time
period for which the disability benefits were denied, and whether
there is a reasonable probability that the new evidence would
change the outcome of the Commissioner's decision.2 The new
evidence appellant presents here does not warrant remand, because
it does not address Castillo's physical condition during the time
1 Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990)
(citation omitted).
2 Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
2

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
reminder 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,
3 Brock v. Chater, 84 F.3d 726, 729 n.1 (5th Cir. 1996).
4 The record includes four 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 twenty-
five percent of her past due benefits to pay toward the attorney'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, 652 F.2d 399, 403 (5th Cir. 1981), upon which
appellant relies. In that case we held that a benefits claimant
had received insufficient notice of her right to counsel because
she received only one written notice, which omitted any mention
that she could qualify for free representation and, in fact,
suggested by its tone that "any representative whom the claimant"
3

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 represented 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 medical 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
might seek had the right "to demand a fee for these services." Id.
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." Id. In contrast, prior to Castillo's hearing, she was
informed several times that she might qualify for free
representation, and was presented 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.
4

and the Castillos' opportunities to add additional information into
the 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.10 In exceptional
circumstances, however, the court "may, in the interests of
justice, review an issue that was not raised in the district
court."11
7 See James v. Bowen, 793 F.2d 702, 704-05 (5th Cir. 1986).
8 See Villa, 895 F.2d at 1021-22.
9 288 F.3d 212 (5th Cir. 2002).
10 See Chambliss v. Massanari, 269 F.3d 520, 523 (5th Cir.
2001).
11 Kinash v. Callahan, 129 F.3d 736, 739 n.10 (5th Cir. 1997).
5

Watson was issued over two months before the district 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 Singletary v. Bowen,12
already had been extended to claimants suffering physical
disabilities.13 We also note that counsel has not even explicitly
argued that the medical evidence showed that Castillo could not
"maintain" employment performing her past relevant work. We
conclude that appellant has not established "exceptional
circumstances" for the failure to raise this issue below.14
Therefore, we decline to review the issue.
MOTION TO SUBSTITUTE PARTY GRANTED; MOTIONS TO REMAND CASE
DENIED; AFFIRMED.

12 798 F.2d 818 (5th Cir. 1986).
13 See Watson, 288 F.3d at 217-18 (citing Wingo v. Bowen, 852
F.2d 827 (5th Cir. 1988)).
14 See Kinash, 129 F.3d at 738 n.10 (refusing to excuse failure
to raise an issue below, finding that Kinash had "ample time to
bring this issue to the district court's attention").
6