Fagg v. Chater, Commissioner ( 1997 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CHERYL A. FAGG,
Plaintiff-Appellant,
v.
No. 95-2097
SHIRLEY S. CHATER, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Virginia, at Roanoke.
Glen E. Conrad, Magistrate Judge.
(CA-94-137-R)
Argued: December 2, 1996
Decided: February 3, 1997
Before HALL, WILKINS, and NIEMEYER, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
ARGUED: Charles Dodson Bennett, Jr., Roanoke, Virginia, for
Appellant. William Brian Reeser, Assistant Regional Counsel, Office
of the General Counsel, DEPARTMENT OF HEALTH AND
HUMAN SERVICES, Philadelphia, Pennsylvania, for Appellee. ON
BRIEF: Charlotte Hardnett, Chief Counsel, Region III, Office of the
General Counsel, DEPARTMENT OF HEALTH AND HUMAN
SERVICES, Philadelphia, Pennsylvania; Robert P. Crouch, Jr.,
United States Attorney, Julie M. Campbell, Assistant United States
Attorney, Roanoke, Virginia, for Appellee.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
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OPINION
PER CURIAM:
Cheryl A. Fagg applied for a period of disability and disability
insurance benefits, claiming that she was totally disabled due to
chronic back pain, a club foot, and postpolio syndrome. See 42
U.S.C.A. §§ 416(i), 423 (West Supp. 1996). We affirm the decision
of the district court denying her claim for benefits.
I.
Fagg developed polio as a child but recovered sufficiently to com-
plete high school and a three-year tour of active duty in the Navy that
ended in 1979. In 1992, she sought disability insurance benefits,
claiming that she had become unable to work beginning December
31, 1980.1 Because Fagg's insured status for purposes of disability
insurance benefits expired on September 30, 1985, she was required
to establish that she was disabled on or before that date. See 42
U.S.C.A. § 423(a)(1)(A), (c)(1); 20 C.F.R.§ 404.131 (1996).
Fagg's initial application for disability insurance benefits and
request for reconsideration were denied. Fagg then requested a hear-
ing before an administrative law judge (ALJ). At the hearing, Fagg
presented a letter from Dr. Mark Griffith indicating that she had been
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1 Prior to filing her application for disability insurance benefits, Fagg
filed a claim for supplemental security income (SSI). The Social Security
Administration awarded Fagg SSI based on a finding that she was dis-
abled in April of 1992.
2
totally disabled since 1977 due to postpolio syndrome. The ALJ
determined that although Fagg was no longer able to perform her past
relevant work, she remained able to perform sedentary work prior to
September 30, 1985 and that "there were a significant number of jobs
in the national economy which she could have performed from
December 31, 1980, through September 30, 1985." R. 137. As a
result, the ALJ denied Fagg's claim for benefits, and the Appeals
Council subsequently denied her request for review. Fagg then sought
review of the denial of her claim in the district court. See 42 U.S.C.A.
§ 405(g) (West Supp. 1996). The district court held that there was
substantial evidence to support the determination by the ALJ that
Fagg was not totally disabled for all forms of work prior to September
30, 1985. Fagg v. Shalala, No. 94-0137 (W.D. Va. Apr. 11, 1995).
On appeal, Fagg does not challenge directly the findings of the dis-
trict court. Rather, she contends that new and material evidence enti-
tles her to a remand for reconsideration of her claim pursuant to
§ 405(g). Fagg also argues that the decision of the district court
should be reversed because the ALJ failed to consult a medical advi-
sor to determine the onset date of her disability. We are persuaded by
neither argument.
II.
A.
After filing a notice of appeal with this court, Fagg obtained an
opinion letter regarding her postpolio syndrome from another physi-
cian, Dr. Jane Wootton. Dr. Wootton concluded that Fagg had
become disabled because of the disease at some time prior to 1984.
Fagg also obtained a psychological report after filing this action in
district court. Fagg asserts that Dr. Wootton's letter and the psycho-
logical report constitute newly discovered evidence that entitles her
to a remand for further administrative review of her claim. See 42
U.S.C.A. § 405(g).
Fagg must satisfy three prerequisites to merit a remand on the basis
of newly discovered evidence: (1) the evidence must be new; (2) it
must be material; and (3) there must be "good cause for the failure
to incorporate such evidence into the record in a prior proceeding."
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42 U.S.C.A. § 405(g). In order to demonstrate that the evidence is
new, Fagg must show that "[t]he evidence[is] `relevant to the deter-
mination of disability at the time the application was first filed and
not merely cumulative.'" Borders v. Heckler , 777 F.2d 954, 955 (4th
Cir. 1985) (quoting Mitchell v. Schweiker, 699 F.2d 185, 188 (4th Cir.
1983)). The materiality requirement is satisfied if the evidence is such
that it "`might reasonably'" have resulted in a different decision. Id.(quoting King v. Califano, 599 F.2d 597, 599 (4th Cir. 1979)).
Fagg contends that Dr. Wootton's opinion letter constitutes new
and material evidence because Dr. Wootton is a specialist on post-
polio syndrome and her letter is not as conclusory as Dr. Griffith's
letter. Although Dr. Wootton explains postpolio syndrome in greater
detail than did Dr. Griffith, she does not indicate to what extent Fagg
was disabled or identify what limitations, if any, were created by the
disease during the relevant time period. The letter simply reviews
Fagg's medical history, discusses the current status of her disability,
and opines that the disability began in 1984 prior to the expiration of
her insured status. Dr. Wootton's opinion adds nothing to that of
Dr. Griffith, who concluded that Fagg was totally disabled due to
postpolio syndrome well before September 30, 1985. Because
Dr. Wootton failed to present any relevant evidence that the ALJ did
not previously consider, we conclude that this evidence is cumulative
and that Fagg has failed to demonstrate that it might reasonably have
changed the decision of the ALJ in this case. See Evangelista v. Sec-
retary of Health & Human Servs., 826 F.2d 136, 140 (1st Cir. 1987)
("If a losing party could vault the `newness' hurdle of § 405(g) merely
by retaining an expert to reappraise the evidence and come up with
a conclusion different from that reached by the hearing officer, then
the criterion would be robbed of all meaning.").
Fagg also claims that the psychological evaluation that was per-
formed after she filed this action in district court constitutes new evi-
dence entitling her to a remand. Again, we disagree. The report
merely suggests that Fagg currently suffers from depression, in part
as a result of her postpolio syndrome. It does not assert, however, that
Fagg was disabled or limited in any way because of her depression
prior to the expiration of her insured status. Thus, we conclude that
the report would not have affected the determination of disability ben-
efits in this case.
4
B.
Relying on Bailey v. Chater, 68 F.3d 75 (4th Cir. 1995), Fagg con-
tends for the first time on appeal that the decision of the district court
should be reversed because the ALJ erred in failing to consult a medi-
cal advisor to determine the onset date of her disability. Since Fagg
failed to make this argument during the administrative process or
before the district court, we decline to consider it. See, e.g., Pleasant
Valley Hosp., Inc. v. Shalala, 32 F.3d 67, 70 (4th Cir. 1994).
III.
For the foregoing reasons, we affirm the decision of the district court.2
AFFIRMED
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2 We have carefully considered Fagg's other arguments and conclude
that they are without merit.
5