Ciccariello v. Apfel ( 2000 )

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1874
VELIA CICCARIELLO,
Plaintiff, Appellant,
v.
KENNETH S. APFEL, COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Edward F. Harrington, U.S. District Judge]
Before
Selya, Circuit Judge,
Cyr, Senior Circuit Judge,
and Lipez, Circuit Judge.
Michael James Kelley on brief for appellant.
Donald K. Stern, United States Attorney, and Rayford A.
Farquhar, Assistant U.S. Attorney, on brief for appellee.
May 4, 2000
Per Curiam. Claimant Velia Ciccariello appeals a
district court order that upheld the denial of her claim for
Social Security disability benefits. Although claimant had
moved the district court to remand her case to the
Commissioner under 42 U.S.C. § 405(g), sentence six, the
district court ruled that the claimant had failed to adduce
"new" and "material" evidence and denied her motion to
remand while holding that the Commissioner's decision was
supported by substantial evidence. Claimant now maintains
that both the district court and the Appeals Council erred
by declining to remand her case to the ALJ. She further
argues that the ALJ's decision is not supported by
substantial evidence. Having thoroughly reviewed the record
and the parties' briefs on appeal, we are disposed to affirm
for the following reasons.
First, we conclude that the district court did not
err by denying claimant's motion to remand. Even if the
evidence that claimant submitted to the Appeals Council was
new and material (a matter we need not decide in light of
our disposition), it is clear that the claimant failed to
establish the "good cause" required to justify a remand
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under 42 U.S.C. § 405(g), sentence six.1 "Congress plainly
intended that remands for good cause should be few and far
between...." Evangelista v. Secretary of Health and Human
Services, 826 F.2d 136, 141 (1st Cir. 1987). Virtually all
of the medical records that claimant submitted to the
Appeals Council were in existence long before the date of
her administrative hearing. Yet both below and on appeal,
claimant's counsel has offered only personal unsworn
assertions that these late-submitted medical records were
previously unavailable because of the poor record-keeping of
claimant's medical providers. It is well established in
this circuit that this is not enough. See, e.g., Gooley v.
Mobil Oil Corp., 851 F.2d 513, 515 n. 2 (1st Cir. 1988); cf.
Blackburn v. Heckler, 615 F. Supp. 908, 914 (D.C. Ill.
1985)(finding "good cause" where counsel submitted affidavit
to support allegations of unavailable medical records).
Since claimant failed to submit any proof to support her
1
In relevant part, the sixth sentence of 42 U.S.C. § 405(g)
provides that:
The court may ... at any time order
additional evidence to be taken before the
Commissioner ... 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....
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"good cause" claim, there was no error in the denial of her
motion to remand.2
Claimant has waived her contention that the ALJ's
decision is not supported by substantial evidence by failing
to raise this argument below. See Evangelista, 826 F.2d at
143. Her arguments that the Appeals Council erred by
failing to state the basis of its decision denying
claimant's request for review and by failing even to review
her late-submitted evidence similarly have been waived. We
note, however, that the record clearly establishes that the
Appeals Council reviewed claimant's additional evidence and
that the Appeals Council was not required to explain the
basis of its decision denying review. See Perkins v.
Chater, 107 F.3d 1290, 1293-94 (7 th Cir. 1997); Damato v.
Sullivan, 945 F.2d 982, 988 (7th Cir. 1992).
In view of the foregoing, the judgment of the
district court is affirmed. See Local Rule 27(c).
2We do not suggest that the allegations about the poor
record-keeping of claimant's medical providers are false. We
simply emphasize that unsworn allegations do not constitute the
proof required by the good cause standard.
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