UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RUTH E. HART,
Plaintiff-Appellant,

v.
                                                                        No. 98-2350
KENNETH S. APFEL, COMMISSIONER OF
SOCIAL SECURITY,
Defendant-Appellee.

Appeal from the United States District Court
for the Middle District of North Carolina, at Rockingham.
James A. Beaty, Jr., District Judge.
(CA-97-122-3)

Submitted: February 23, 1999

Decided: June 7, 1999

Before ERVIN, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

John F. Eichorn, Rockingham, North Carolina, for Appellant. Frank
W. Hunger, Assistant Attorney General, Walter C. Holton, Jr., United
States Attorney, Gill P. Beck, Assistant United States Attorney, Mary
Ann Sloan, Chief Counsel, Region IV, Dennis R. Williams, Deputy
Chief Counsel, Ronald Lamar Paxton, Assistant Regional Counsel,
John C. Stoner, Assistant Regional Counsel, Office of the General
Counsel, SOCIAL SECURITY ADMINISTRATION, Atlanta, Geor-
gia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ruth E. Hart appeals the district court's order and judgment adopt-
ing the recommendation of the magistrate judge, granting summary
judgment to the Commissioner, denying Hart's motion for summary
judgment, and affirming the Commissioner's decision denying Hart's
application for disability insurance benefits. This appeal concerns the
effect of new evidence submitted to the Appeals Council. Hart con-
tends that a review of the record as a whole, including the new evi-
dence, establishes that the Commissioner's final decision is not
supported by substantial evidence. Finding no reversible error, we
affirm.

Hart was born in July 1946 and has a high school education. She
formerly worked in a drapery factory as a quality control inspector,
charge back worker, and sewing machine operator. She stopped work-
ing in November 1993. The relevant period for Hart's application for
disability benefits spans from the alleged onset of disability, on
November 8, 1993, to the date of the administrative law judge's
("ALJ") decision, February 21, 1996. Hart alleged she was disabled
due to carpal tunnel syndrome and residual effects from ulnar and
medial nerve surgery on both elbows.

The evidence before the ALJ established the following. In Novem-
ber 1993, Hart had surgery for carpal tunnel syndrome. The residual
effects after surgery included limits on her ability to lift and carry
objects. Specifically, Hart reported pain in her right shoulder and she
lost some grip strength in her right wrist. Otherwise, she had a full
range of motion in both shoulders.

Because of her persistent complaints of pain, Hart was referred to
Dr. Austin, a rheumatologist. Austin concluded that the pain was due
to systemic lupus erythematosus and related synovitis.* According to
_________________________________________________________________
*Lupus erythematosus is an illness causing skin lesions. See STEDMAN'S
MEDICAL DICTIONARY 1000 (26th ed. 1995). Synovitis is an inflammation

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Austin, Hart reported that she experienced numbness in her hands and
pain in her right shoulder. Austin observed full range of motion in her
right shoulder and a slight loss of range of motion in her left shoulder.
Hart had a slight loss of range of motion in her knees with some pain.
Austin treated her with injections of pain medication.

At the hearing, Hart testified that whenever she used her hands,
such as for driving or writing letters, her hands would swell and her
fingers would cramp. She also complained of constant pain in her
arms, shoulders, and knees. The pain in her knees occurred when she
was in motion, such as climbing a set of stairs. At times, Hart
claimed, her left arm would feel limp and numb. She also had prob-
lems reaching overhead with her right arm. Hart stated that medica-
tion controlled the pain and moving her arm helped relieve the
numbness. Hart also claimed that she could only stand for a half an
hour or sit for an hour before she began to feel pain. She also claimed
that she could not lift more than fifteen pounds.

Hart admitted that she could bend down to pick objects up off the
floor and could walk a block. She stated that she did all the house-
work at home, but had trouble making the beds, sweeping the floor,
standing at the sink washing dishes, or carrying full bags of groceries.

The ALJ applied the sequential five step analysis found at 20
C.F.R. § 404.1520 (1998). The ALJ found that Hart: (1) had not
engaged in substantial gainful employment since the onset of her
alleged disability; (2) had a severe impairment; (3) did not have an
impairment that meets or equals medical criteria warranting a finding
of disability without considering vocational factors; (4) but did have
an impairment which prevented her from performing her past relevant
work because of her limitations with regard to lifting; and (5) had the
full residual functional capacity to perform the full range of sedentary
work.

The ALJ concluded that Hart had the residual functional capacity
to perform the physical exertion requirements of work except for lift-
ing and carrying more than ten pounds on an occasional basis or
_________________________________________________________________

of a synovial membrane, usually that of a joint. See id. at 1746.

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standing and walking more than two hours in an eight hour day. The
ALJ also concluded that there were no non-exertional limitations. The
ALJ found that Hart's testimony regarding her pain was credible, but
that the pain was not so disabling that it prevented her from engaging
in work activities. Because the ALJ found that Hart did not have any
non-exertional limitations, he used the Medical-Vocational Guide-
lines, 20 C.F.R. Part 404, Subpt. P, App. 2 (1998) ("grids") to deter-
mine that Hart was not disabled. The decision denying benefits was
issued on February 21, 1996.

Hart requested review by the Appeals Council. She submitted two
additional treatment notes from Austin. The notes referred to exami-
nations conducted on April 3, 1996, and May 15, 1996.

On April 3, 1996, Hart saw Austin on an emergency visit due to
"dramatically worsening pain in both wrists and knees." (Administra-
tive Record ("AR") at 186). He diagnosed degenerative bone disease
at the patellofemoral joint of both knees as a cause of the knee pain.
Previously, the pain had been attributed to the lupus. He observed
"dramatic effusion and clear excessive heat in both knees, along with
subpatella crepitance." Austin found that the synovitis had "settled
down fairly well, but incompletely." (Id.) He concluded that Hart's
pain in her knees was related to either the lupus or advanced degener-
ative arthritis. Austin also found that Hart's hips were fully mobile,
her ankles were not inflamed, she had intact wrists with motion loss
that was not marked and no sign of degenerative bone disease, the
elbows fully extended, the shoulders were fully mobile, and she
developed a forearm rash with little activity. Austin injected Hart's
knees with a pain reliever. He opined that if the pain in the knees did
not subside, Hart would have to have a surgical consultation. Austin
also opined that Hart was "totally disabled for gainful employment
due to a multitude of factors." (AR at 187).

Hart returned to Austin on May 15, 1996. The pain in her knees
reappeared one week after her previous visit, leading Austin to con-
clude that the pain was caused by the degenerative disease. According
to Austin, the pain occurs when Hart gets up from a seated position
or "walks around for awhile." (AR at 188). He also found that Hart's
knees "are improved and not symptomatic." (Id.) After a physical
examination, he found that Hart had weak grip strength, no sign of

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synovitis in her wrists, the elbows fully extended, the shoulders and
hips were fully mobile, and she had "a marked crepitance in the sub-
patella area of each knee, with a small effusion but no excessive
heat." (Id.) Austin concluded that Hart's hand cramping was an ongo-
ing symptom that would not improve, and that her knees were not
symptomatic enough to warrant knee surgery at that time, but would
require it in the future. He again opined that Hart was totally disabled
for gainful employment.

The Appeals Council considered the new evidence consisting of
Austin's notes and concluded that the new evidence did not provide
a basis for changing the ALJ's decision. Accordingly, the Appeals
Council denied Hart's request for review.

In the district court, the magistrate judge concluded that the only
aspect of Austin's reports that could be considered new evidence was
the diagnosis of degenerative arthritis. According to the magistrate
judge, the manifestation of this illness as recorded by Austin did not
provide a basis for changing the ALJ's decision. Furthermore, the
magistrate judge found that Austin's opinion that Hart was totally dis-
abled was not of special significance, specifically because Austin did
not explain how Hart's impairments imposed functional limitations on
her ability to do work-related activities. The district court reviewed
Hart's objections de novo and adopted the magistrate judge's recom-
mendation to grant summary judgment to the Commissioner, deny
summary judgment to Hart, and dismiss the action.

Hart concedes that the ALJ's decision is supported by substantial
evidence when considering only the evidence before the ALJ. Hart
argues, however, that a review of the record as a whole, including the
new evidence, establishes that the denial of benefits was not sup-
ported by substantial evidence. She contends that the new evidence
consists of the diagnosis of degenerative bone disease, the condition
of her hands and wrists, and Austin's opinion of her disability.

This court must determine whether the Commissioner's findings
are supported by substantial evidence, see Richardson v. Perales, 402
U.S. 389, 390, 401 (1971), and whether the correct legal standards
were applied. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.
1990). Substantial evidence is that evidence which"`a reasonable

                    5
mind might accept as adequate to support a conclusion.'" Perales,
402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 306 U.S.
292, 300 (1939)). When the record includes new evidence, as in the
instant case, our review is of the whole record, including the new evi-
dence, in order to determine whether substantial evidence supports the
Commissioner's findings. See Wilkins v. Secretary, Dep't of Health
& Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).

Pursuant to 20 C.F.R. § 404.970(b) (1998), the Appeals Council
shall consider evidence submitted with a request for review if the evi-
dence is new, material, and "relates to the period on or before the date
of the [ALJ's] hearing decision." The Appeals Council must then
evaluate the entire record including the new and material evidence
and determine whether the ALJ's findings are contrary to the weight
of the evidence.

The evidence submitted to the Appeals Council consisted of both
new and cumulative evidence and an assessment of Hart's condition
that did not relate to her condition during the period before the ALJ's
decision. Austin's notes consisted of a restatement of symptoms con-
tained in reports submitted to the ALJ, a description of worsening
symptoms, an illness not previously diagnosed but possibly present
prior to the ALJ's decision, and, for the first time, an opinion that
Hart was totally disabled.

Substantial evidence supports the ALJ's findings even if we con-
sider the new diagnosis of degenerative bone disease in the knees as
a source of Hart's problems with her knees. Despite the new diagno-
sis, the symptoms remained the same. Hart had nearly full range of
motion in her knees, albeit with limits on walking and standing for a
significant length of time. The ALJ considered this evidence when
determining that Hart could perform sedentary work that did not
require her to stand or walk for more than two hours in an eight hour
day. Even with a different diagnosis, there was adequate evidence
supporting the ALJ's findings.

Hart also contends that if the ALJ had Austin's notes, he would
have found that Hart had arthritis of a major weight-bearing joint, a
listed impairment sufficient to warrant finding her disabled. See 20
C.F.R. pt. 404, Subpt. P, App. 1, § 1.03 (1998). This issue was not

                    6
raised before the magistrate judge below and thus, is not properly
before this court. See Bregman, Berbert & Schwartz, L.L.C. v. United
States, 145 F.3d 664, 670 n.8 (4th Cir. 1998) (declining to consider
alternative argument because it was not raised below and appellant
failed to show an exceptional circumstance that prevented it from so
doing).

Furthermore, Hart does not properly support this contention
because the record does not include the necessary X-ray evidence
showing "either significant joint space narrowing or significant bony
destruction." 20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.03(A).

Hart contends that Austin's notes also included new evidence
regarding her wrists and hands. Austin's findings regarding Hart's
wrists and hands were, for the most part, cumulative. The symptoms
were reported previously by Austin and others. The ALJ considered
these reports and Hart's own complaints of numbness and cramping.
Austin's new notes described a progressively worsening situation
with regard to Hart's grip strength in her wrists. No note was made
of grip strength in Austin's reports filed prior to the ALJ's decision.
The ALJ did, however, review the objective medical evidence that
was in the record concerning Hart's grip strength and concluded that
it did not prevent Hart from performing sedentary work. (AR at 15,
136). Austin's findings about Hart's grip strength do not relate back
to the period prior to the ALJ's decision. Since the evidence concern-
ing Hart's wrists and hands was either cumulative or not relevant to
the period prior to the ALJ's decision, it should not be considered
new evidence. See 20 C.F.R. § 404.970(b).

Hart also contends that because Austin's notes submitted to the
Appeals Council describe a non-exertional limitation with regard to
her ability to manipulate objects due to the decrease in grip strength,
the ALJ erred in using the grids to determine that Hart was not dis-
abled. However, because this evidence does not relate back, it is not
relevant to the ALJ's decision to use the grids. See id.

As for Austin's opinion that Hart was totally disabled, there is no
evidence that this opinion relates back to the period of time prior to
the ALJ's decision. See id. A physician's opinion regarding a claim-
ant's disability must be either supported by clinical evidence or con-

                    7
sistent with other substantial evidence, otherwise it is accorded
significantly less weight. See Craig v. Chater , 76 F.3d 585, 590 (4th
Cir. 1996). The evidence for the relevant period of time does not sup-
port Austin's conclusion. Furthermore, Hart's own testimony refutes
a finding of total disability. The ALJ properly concluded that, based
on Hart's own description of the extent of her limitations with regard
to standing, sitting and walking, she was able to perform sedentary
work.

We affirm the district court's order. We dispense with oral argu-
ment because the facts and legal contentions are adequately presented
in the material before the court and argument would not aid the deci-
sional process.

AFFIRMED

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