                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-4-2002

Fricker v. Comm Social Security
Precedential or Non-Precedential:

Docket 1-1361




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                                                 NOT-PRECEDENTIAL

                UNITED STATES COURT OF APPEALS
                    FOR THE THIRD CIRCUIT


                          No. 01-1361


                         DANIEL FRICKER

                               v.

                      *WILLIAM A. HALTER,
             ACTING COMMISSIONER OF SOCIAL SECURITY

                                     Appellant

                *{Pursuant to F.R.A.P. 43(c)}



          Appeal from the United States District Court
            for the Eastern District of Pennsylvania
              (D.C. Civil Action No. 00-cv-02796)
             District Judge: Honorable Marvin Katz


        Submitted Pursuant to Third Circuit LAR 34.1(a)
                        December 6, 2001

       Before: MANSMANN, ROTH and FUENTES, Circuit Judges

                    (Filed January 3, 2002)



                           OPINION




ROTH, Circuit Judge:
     Defendant Commissioner of Social Security appeals an Order of the
U.S. District
Court for the Eastern District of Pennsylvania, reversing the decision of
the
Administrative Law Judge (ALJ) to deny Plaintiff Daniel Fricker social
security
disability insurance (SSDI) benefits, and remanding the case with an order
to award
Fricker benefits. The Commissioner contends that the District Court
committed two
errors. First, the District Court impermissibly considered evidence which
had not been in
the record before the ALJ but was submitted for the first time to the
Appeals Council
with Fricker's request for review. Second, the District Court erred by
not treating the
ALJ's findings as conclusive, even though they were supported by
substantial evidence.
For the reasons which follow, we will reverse the District Court's Order
and remand this
case to the District Court to enter judgment in favor of the Commissioner.
                 I. Facts and Procedural History
     On September 16, 1996, Fricker filed an application for SSDI benefits
under 42
U.S.C. section 423 (2001), alleging that a back injury and related pain
had disabled him
since September 17, 1987. In this application, Fricker averred that as of
December 31,
1992, his date last insured, his disability rendered him entirely unable
to work. After the
appropriate state agency denied, reconsidered and re-denied his
application, Fricker
sought and was granted a hearing before an ALJ.
     During a May 18, 1998, hearing, the ALJ considered the testimony of
Fricker and
of a vocational expert, together with certain evidence of Fricker's
medical history. This
evidence included various physicians' assessments of Fricker's ability to
work. Much of
the medical evidence considered by the ALJ suggests that, as of the date
Fricker was last
insured, he was able to perform some types of work. See, e.g., Appendix
at 114-17, 121,
131-33, 143-44, 287-365, 367-68, 486-89, 517, 529. An April 9, 1998,
letter of Dr.
Sofia Lam, considered by the ALJ stated, however, that Fricker "is not
capable of
performing any type of gainful employment at the present time or in the
future."
(emphasis added). Based on the evidence before her, the ALJ found
Fricker's allegations
"excessive [and] not fully credible" and found Fricker "capable of light
and sedentary
work." Accordingly, the ALJ denied Fricker's request for SSDI benefits.
     On June 2, 1998, six days before the ALJ's decision, Dr. Joseph
Pongonis, a
physician who had earlier provided an assessment supporting Fricker's
employability,
wrote a letter stating "I feel that [Fricker] is unable to perform any
type of work at this
time or in the future." (emphasis added). The Pongonis Letter was not
presented to the
ALJ, and the ALJ did not consider it in rendering her decision. Fricker
presented the
Pongonis Letter for the first time to the Appeals Council in connection
with a request for
review of the ALJ's decision.
     The Appeals Council denied Fricker's request for review, making the
ALJ's
decision the final decision of the Commissioner. See 20 C.F.R.
404.955, 404.981,
422.210 (2001). See also Sims v. Apfel, 530 U.S. 103, 106 (2000).
Thereafter, Fricker
commenced this civil action by filing a complaint with the District Court
pursuant to 42
U.S.C.   405(g) (2001). On December 11, 2000, the District Court denied
the
Commissioner's motion for summary judgment and granted Fricker's motion
for
summary judgment. In reaching its decision, the District Court considered
and relied
upon the Pongonis Letter which had been presented for the first time to
the Appeals
Council.
           II. Jurisdiction and Standards of Review
     The District Court had jurisdiction over Fricker's request for
judicial review of the
Commissioner's denial of SSDI benefits pursuant to 42 U.S.C. section
405(g) (2001).
Because the District Court's December 11, 2000 Order was a final judgment
that
disposed of all of the parties' claims, we have jurisdiction over the
instant appeal
pursuant to 28 U.S.C.   1291 (2001). We exercise plenary review over the
question of
whether it was proper for the District Court to consider evidence not
before the ALJ. See
Matthews v. Apfel, 239 F.3d 589, 591 (3d Cir. 2001) (citing Tubari Ltd.,
Inc. v. NLRB,
959 F.2d 451, 453 (3d Cir. 1992)). We review de novo the issue of whether
the
Commissioner's denial of benefits was supported by substantial evidence.
See Plummer
v. Apfel, 186 F.3d 422, 427 (3rd Cir. 1999) ("The role of this Court is
identical to that of
the District Court, namely to determine whether there is substantial
evidence to support
the Commissioner's decision.").
                        III. Discussion
     The first issue raised in this appeal - whether the District Court
erred by
considering evidence not before the ALJ - is controlled by our decision in
Matthews v.
Apfel. In Matthews, we held that "when [a] claimant seeks to rely on
evidence that was
not before the ALJ, the district court may remand to the Commissioner but
only if the
evidence is new and material and if there was good cause why it was not
previously
presented to the ALJ." Matthews, 239 F.3d at 593 (citing Keeton v. DHHS,
21 F.3d
1064, 1067 (11th Cir. 1994); Newhouse v. Heckler, 753 F.2d 283, 286 (3d
Cir. 1985)).
See also 42 U.S.C.   405(g) (2001) ("[The District Court] may at any time
order
additional evidence to be taken before the Commissioner of Social
Security, 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.").
Fricker and the District Court relied on the Pongonis Letter, which was
not brought
before the ALJ. However, Fricker has not shown that the Pongonis Letter
was new, that
it referred to the relevant period when Fricker was insured, or that there
was good cause
for failing to present it to the ALJ. Therefore, the District Court erred
when it considered
and relied upon the Pongonis Letter.
     Turning to the second of Commissioner's objections - the District
Court's
determination that the ALJ's findings were not supported by substantial
evidence - we
also find error. As we noted in Plummer, we are "bound by the ALJ's
findings of fact if
they are supported by substantial evidence in the record." Plummer, 186
F.3d at 427
(citing 42 U.S.C.   405(g); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir.
1986)). For
purposes of our review, substantial evidence means "such relevant evidence
as a
reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d
900, 901 (3d
Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We
find that a
reasonable mind certainly might accept as adequate the ample medical
evidence
suggesting Fricker's employability as of his date last insured. We note,
moreover, that
the Lam and Pongonis letters referred not to the period on or before
December 31, 1992,
when Fricker was last insured, but to a date over five years later. For
these reasons, we
find that the ALJ's findings regarding Fricker's employability are
conclusive.
     We will, therefore, reverse the District Court's Order and remand
this case to the
District Court with directions to enter an order granting judgment in
favor of the
Commissioner.
TO THE CLERK:

     Please file the foregoing Opinion.



                             By the Court,



                             /s/ Jane R. Roth
                                        Circuit Judge
