UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

HERMAN J. PHILLIPS,
Plaintiff-Appellant,

v.
                                                                 No. 98-1221
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of North Carolina, at Wilmington.
James C. Fox, District Judge.
(CA-96-167-7-F1)

Submitted: November 30, 1998

Decided: March 3, 1999

Before WILLIAMS and MOTZ, Circuit Judges and
HALL, Senior Circuit Judge.

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Vacated and remanded by unpublished per curiam opinion.

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COUNSEL

James B. Gillespie, Jr., Mary C. Higgins, GILLESPIE & HIGGINS,
New Bern, North Carolina, for Appellant. Janice McKenzie Cole,
United States Attorney, Anne M. Hayes, Assistant United States
Attorney, Barbara D. Kocher, Assistant United States Attorney,
Raleigh, North Carolina, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

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OPINION

PER CURIAM:

Herman Phillips appeals the decision of the district court granting
the Commissioner of Social Security's motion for judgment on the
pleadings and upholding the Commissioner's denial of Phillips' appli-
cation for social security disability benefits on ground that he was not
disabled within the meaning of the Social Security Act. Because the
Administrative Law Judge (ALJ) should be given the opportunity to
review Phillips' school records, we vacate the order of the district
court and remand the matter for further proceedings.

Phillips filed his application for social security disability benefits
on March 7, 1994, claiming disability since February 19, 1994. That
application was denied on initial consideration and again on review.
Phillips then requested a hearing before the ALJ and appeared with
a non-attorney representative. At this hearing Phillips, through his
representative, suggested that his claim be supplemented by a psycho-
logical evaluation. The ALJ granted leave for Phillips to procure an
examination and supplement the record with further evidence regard-
ing his mental state. Phillips underwent psychological testing on April
14, 1995, and the psychologist, Dr. David Novak submitted a report
which indicated, among other things, that Phillips' IQ was 65 on the
WAIS scale.

Upon receiving this report, the ALJ considered all the evidence
before him and concluded that Phillips was not disabled within the
meaning of the Social Security Act. In his decision, the ALJ acknowl-
edged that Phillips faces several mental and physical impairments
including borderline intellectual functioning; however, it was also the
ALJ's conclusion that none of Phillips' impairments met the defini-
tions of the listed impairments found in Appendix 1 of the implement-
ing regulations of the act. See 20 C.F.R. Part 404, Subpt. P, App. 1
(1994). In determining that Phillips did not meet the definition of

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mentally retarded, the ALJ considered Dr. Novak's psychological
report, as well as Phillips' own declarations regarding his educational,
work, and his home experiences. The ALJ's final decision was issued
in July of 1995.

Prior to seeking review of his case by the Social Security Appeals
Council, Phillips supplemented the record with evidence of his school
records, including information regarding his scores on childhood IQ
tests. Phillips was unable to submit the records earlier because he
used a different name while in school, and this raised some difficulty
in recovering them. The Social Security Appeals Council denied Phil-
lips' request for review in September 1996.

Title 42 of the United States Code provides that a district court
"may, . . . at any time order additional evidence to be taken before the
Commissioner of Social Security" where there has been a showing
that the "new evidence" is material and that there exists good cause
for the party's failure to incorporate the evidence in a prior proceed-
ing. 42 U.S.C.A. § 405(g) (West Supp. 1998)."Evidence is material
if there is a reasonable possibility that the new evidence would have
changed the outcome." Wilkins v. Secretary, Dep't of Health &
Human Services, 953 F.2d 93, 96 (4th Cir. 1991) (en banc).

We believe that the appropriate action is for the district court to
order that additional evidence be reviewed by the ALJ. As the magis-
trate judge noted in his memorandum and recommendation, Phillips
has shown good cause why the evidence was not submitted earlier.
Furthermore, the records are material as to whether Phillips suffered
"significantly subaverage general intellectual functioning with deficits
in adaptive behavior initially manifested during the developmental
period (before age 22)." 20 C.F.R. Part 404, Subpt. P, App. 1,
§ 12.05.

Accordingly, we vacate the order of the district court and remand
for further proceedings consistent with this opinion.* We dispense
with oral argument because the facts and legal contentions are ade-
quately presented in the materials before the Court and argument
would not aid the decisional process.

VACATED AND REMANDED
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*We express no opinion as to the merits of Phillips' case.

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