Daniel Fricker v. William A. Halter, Acting Comm Issioner of Social Security

NOT-PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-1361
DANIEL FRICKER
v.
*WILLIAM A. HALTER,
ACTING COMM ISSIONER 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

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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

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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

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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

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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

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1The District Court reached a contrary conclusion, finding that any evidence
supporting the Commissioner’s findings was overwhelmed by the Lam Letter. See Order
at 1-2. See also Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (“Nor is evidence
substantial if it is overwhelmed by other evidence.”). We reject this reasoning on two
bases. First, the Lam Letter alone does not overwhelm the comparatively ample evidence
of Fricker’s employability. Second, because the Lam Letter opines on Fricker’s
employability in 1998 and thereafter, it does not address directly Fricker’s employability
as of his date last insured and, therefore, is not directly relevant. See 20 C.F.R.§
404.131(a) (2001) (“To establish a period of disability, you must have disability insured
status in the quarter in which you become disabled or in a later quarter in which you are
disabled.”).
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(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.1
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.

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TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/s/ Jane R. Roth
Circuit Judge

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