UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRED L. SALLING,
Plaintiff-Appellant,

v.
                                                                         No. 99-1772
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Virginia, at Big Stone Gap.
James P. Jones, District Judge.
(CA-98-109-2-B)

Submitted: October 29, 1999

Decided: November 15, 1999

Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

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COUNSEL

Terry G. Kilgore, Gate City, Virginia, for Appellant. James A. Winn,
Chief Counsel, Region III, Patricia M. Smith, Deputy Chief Counsel,
David F. Chermol, Assistant Regional Counsel, Office of the General
Counsel, SOCIAL SECURITY ADMINISTRATION; Robert P.
Crouch, Jr., United States Attorney, Julie C. Dudley, Assistant United
States Attorney, Roanoke, Virginia, for Appellee.

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Unpublished opinions are not binding precedent in this circuit.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

_________________________________________________________________

OPINION

PER CURIAM:

Fred L. Salling appeals the decision of the district court granting
summary judgment to the Commissioner of Social Security, and
upholding the denial of Salling's claim for a period of disability and
application for disability insurance benefits under Title II of the
Social Security Act, 42 U.S.C.A. §§ 401-433 (West Supp. 1999) (the
"Act"). Salling applied for benefits on February 5, 1996, alleging dis-
ability since December 20, 1995, and received a hearing before an
administrative law judge ("ALJ"). By decision dated May 20, 1997,
the ALJ found that Salling was not disabled within the meaning of the
Act. Specifically, the ALJ found that Salling has residual functional
capacity to perform light work, as defined in the applicable regula-
tions.

Salling filed a request for review of the hearing decision on May
30, 1997, and subsequently submitted additional evidence on his
behalf. Specifically, Salling's attorney submitted a letter dated Sep-
tember 29, 1997, to which he attached a letter from Salling's treating
physician, Dr. Winegar, dated September 18, 1997. In his letter, Dr.
Winegar identified Salling's history of low back pain due to degener-
ative disc disease and spinal stenosis. Dr. Winegar noted that Salling
had suffered a "recent flare up" which necessitated medical attention
and resulted in Salling being "very limited as far as work activity,"
but he failed to specify a more exact date either for the flare-up or the
medical attention. He noted that Salling could be expected to have
continued flare-ups of back pain with minimal activity. He opined
that Salling was "totally disabled due to the condition of his back after
surgery" because more intermittent "flare-ups" of his back condition
were "anticipated."

The Social Security Administration's Appeals Council denied
review, finding that the additional evidence Salling submitted was not

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material to the question of disability covered by the ALJ's decision
because it failed to date back to before the date of the ALJ's decision.
Consequently, the ALJ's opinion constitutes the final decision of the
Commissioner.

Salling filed a complaint in the district court, claiming that the
Appeals Council erred in failing to adequately consider the additional
medical evidence presented to it following the ALJ's hearing deci-
sion. Salling also filed in the district court a letter, stating that "the
Commissioner's decision is not supported by substantial evidence or
. . . should be reversed and the case remanded." In the letter, Salling
challenged the ALJ's decision based solely on the extra-record evi-
dence he attached to his letter, the same evidence he submitted to the
Appeals Council when he sought review. In response, the Commis-
sioner filed a motion for summary judgment asking that the district
court affirm the ALJ's decision and deny Salling's request for a
remand.

After reviewing the additional evidence Salling submitted, the dis-
trict court found that the Commissioner's decision was supported by
substantial evidence, and that plaintiff's counsel's letter of September
29, 1997, merely summarized the attached opinion of Dr. Winegar
and its purported relevance to Salling's case. It also found that a plain
reading of Dr. Winegar's letter demonstrated that it lacks the time ref-
erence to properly date back to before the ALJ's decision, because Dr.
Winegar provides no date for the "recent" flare-up nor for Salling's
visit to his physician. Also, the district court determined that in light
of the September 18, 1997, date of the letter, a"recent" occurrence
of back pain cannot plausibly be read to date back to May 20, 1997,
or before.

In his appeal before this court, Salling claims only that the Com-
missioner's decision regarding his effective date of disability as June
20, 1998, is not supported by substantial evidence in light of the Sep-
tember 18, 1997, medical opinion of his treating physician, Dr. Wine-
gar. Stated differently, Salling does not challenge the Commissioner's
decision in and of itself, but rather takes issue with the decisions of
the Appeals Council and the district court that the additional evidence
Salling submitted on review was not material to his case.

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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 there is "new evidence," which is material and that there exists
good cause for the party's failure to incorporate the evidence into the
record in a prior proceeding. See 42 U.S.C.A. § 405(g) (West Supp.
1999). The additional evidence must be new, material, and relate to
the period on or before the date of the ALJ's decision. See Wilkins v.
Secretary, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th
Cir. 1991) (en banc). "Evidence is material if there is a reasonable
possibility that the new evidence would have changed the outcome."
Id. at 96 (citation omitted).

In this case, the relevant time period is from December 20, 1995,
Salling's alleged disability onset date, to the ALJ's decision date,
May 20, 1997. We find that the district court properly held that,
because the evidence contained in Dr. Winegar's letter of September
18, 1997, did not relate to the period on or before the date of the
ALJ's hearing decision, it cannot change the outcome in this case, and
thus is not material. Id. at 95-96. Accordingly, because Dr. Winegar's
September 18, 1997, letter does not constitute material new evidence,
no remand was warranted. See 42 U.S.C.A.§ 405(g); Wilkins, 953
F.2d at 95-96.

Because Salling has not otherwise challenged the ALJ's decision
as being unsupported by substantial evidence either before the
Appeals Council, the district court, or in his brief in this court, we
affirm, on the reasoning of the district court, its decision that the
Commissioner's decision is supported by substantial evidence, and
that the correct law was applied. See 42 U.S.C.A. § 405(g); Hays v.
Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). We dispense with oral
argument because the facts and legal contentions are adequately pre-
sented in the materials before the Court and argument would not aid
the decisional process.

AFFIRMED

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