Thomas Williams v. COMM ISSIONER OF SOCIAL SECURITY On Appeal from the United States District Court…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 01-2241
___________
THOMAS WILLIAMS,
Appellant
v.
COMM ISSIONER OF SOCIAL SECURITY
_______________________________________________
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 99-cv-02253
(Honorable John C. Lifland)
___________________
Submitted Pursuant to Third Circuit LAR 34.1(a)
January 17, 2002
Before: SCIRICA and ROSENN, Circuit Judges, and KANE, District Judge*
(Filed May 23, 2002)
*The Honorable Yvette Kane, United States District Judge for the Middle District of
Pennsylvania, sitting by designation.

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2
__________________
OPINION OF THE COURT
__________________
SCIRICA, Circuit Judge.
This is an appeal from a denial of disability benefits under the Social Security Act.
Appellant claims the Commissioner of Social Security’s determination was not supported
by substantial evidence in the record. He also appeals the denial of his motion to compel
discovery before the District Court.
We will affirm.
I.
Thomas Williams has been trying unsuccessfully to receive social security
disability benefits for the past sixteen years. The facts of the case have been well
documented during that time period. Williams has been tested and found to have a verbal
I.Q. in the mid-60s. He has a first-grade education and is illiterate. But he can carry out
simple three-step instructions. Williams managed to hold gainful employment for more
than 20 years for a steel drum company. After the steel company closed, Williams
worked for a short time as a security guard – a position that is normally performed at a
light, unskilled level. Williams also suffers from diabetes and arthritis. But he is able to
walk or sit for six hours in an eight-hour workday.
In 1992, we affirmed the Social Security Appeals Council’s denial of disability for
the period before January 30, 1991. Williams v. Sullivan, 970 F.2d 1178 (3d Cir. 1992).

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1March 31, 1992 is the date Williams last met the special insured status requirements.
2Substantial evidence has been defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.” Plummer v. Apfel,
186 F.3d 422, 427 (3d Cir. 1999) (quotation and citations omitted).
3For purposes of review here, the Social Security Appeals Council’s decision is the
Commissioner’s final determination.
4The Social Security Administration uses a 5-step sequence to determine disability.
Subsection (d) provides: “When your impairment(s) meets or equals a listed impairment
in Appendix 1. If you have an impairment(s) which meets the duration requirement and is
listed in Appendix 1 or is equal to a listed impairment(s), we will find you disabled
without considering your age, education, and work experience.” 20 C.F.R. §
404.1520(d).
3
While his first petition was under consideration, Williams again claimed disability as of
October 30, 1986. In 1999, the Appeals Council rejected Williams’ request to reconsider
the period between October 30, 1986 and January 29, 1991 as res judicata. Considering
only the period from January 30, 1991 through March 31, 1992,1 the Appeals Council
again denied disability finding Williams’ able to perform past relevant work as a security
guard.
II.
We review decisions to deny disability on a substantial evidence basis.2 42 U.S.C.
§ 405(g) (1991).3 Williams claims the Appeals Council erred in its determination under
20 C.F.R. § 404.1520(d) (1985).4 But the record contains substantial evidence to support

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5While Williams offered medical evidence in addition to what he offered to support his
initial application for disability, he has still failed to meet his burden under 20 C.F.R. Part
404, Subpart P, Appendix 1, § 12.05, of showing manifestations of a subaverage general
intellectual functioning with deficits in adaptive behavior before age 22. See Williams,
970 F.2d 1178, 1184-1187.
6Subsection (e) provides: “Your impairment(s) must prevent you from doing past
relevant work. If we cannot make a decision based on your current work activity or on
medical facts alone, and you have a severe impairment(s), we then review your residual
functional capacity and the physical and mental demands of the work you have done in
the past. If you can still do this kind of work, we will find that you are not disabled.” 20
C.F.R. § 404.1520(e).
4
the Appeals Council’s determination that Williams’ impairments did not equal those
listed in Appendix 1.5
Williams also claims error under 20 C.F.R. § 404.1520(e) (1985).6 Substantial
evidence in the record supports the Appeals Council’s determination that Williams could
engage in his relevant past work as a security guard. Therefore, the findings of the
Appeals Council are conclusive.
Williams claims the Appeals Council erred by applying res judicata to the question
of disability prior to January 30, 1991, after the ALJ reopened the period for
reconsideration. The Appeals Council partially vacated the ALJ’s determination because
Williams’ previous application had become final when the Supreme Court denied
certiorari. Williams v. Shalala, 507 U.S. 924 (1993). We lack jurisdiction to review the

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7By requesting that we reexamine Williams I, Williams essentially tries to do indirectly
what he cannot do directly. The original denial of disability prior to January 30, 1991 is
res judicata and we lack jurisdiction to review it.
5
Appeals Council’s discretionary decision to apply res judicata in such a situation. See
Tobak v. Apfel, 195 F.3d 183, 187 (3d Cir. 1999).7
Finally, Williams claims the District Court improperly denied his motion to compel
the Commissioner to produce documents relating to: (1) the changes in § 12.05 regarding
mental retardation in the Commissioner's Listing of Impairments at 20 C.F.R. Part 404,
Subpt. P, Appendix I; and (2) any data prepared in response to the 1992 General
Accounting Office (GAO) report entitled "Social Security: Racial Difference in Disability
Decisions Warrants Further Investigation." The District Court has power to order taking
additional evidence upon petitioner’s showing that new and material evidence exists and
good cause why it was not incorporated into the record at a prior proceeding. 42 U.S.C. §
405(g).
Williams initially filed for disability benefits on October 20, 1987, two years after
the publication of amended § 12.05 of the Commissioner's Listing of Impairments which
changed the criteria for proving mental retardation. Therefore, Williams’ seeks to
discover evidence that existed at the time of his earliest administrative hearings and he
does not show good cause for failing to incorporate it into the administrative record.

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8There is no evidence that the information Williams requested exists. The District
Court noted that Williams "attache[d] to his legal brief a 1996 letter from the National
Organization of Social Security Claimants Representatives requesting from the Social
Security Administration a follow up report to the 1992 GAO study, a request that was
denied because no such report was completed." Additionally, Williams' reliance on
Hummel v. Heckler, 736 F.2d 91 (3d Cir. 1984) is misplaced.
In Hummel the appellant sought to compel the production of information
concerning possible bias of the administrative law judge who presided at her hearing of
which she became aware only after the administrative proceeding had concluded. Id. at
92-93. The appellant "sought to determine whether or not the administrative law judge
who conducted her hearing had prior thereto been subject to a 'Bellmon Review,' and if
so, to obtain information about it." Id. at 94. We noted that if the administrative law
judges' allegations -- in a then pending case -- about the "Bellmon Review" were
"substantially accurate, the impartiality of administrative law judges who have been
subjected to it might reasonably be questioned." Id. at 94. We held that "in cases such as
this, where information relating to a contention bearing on the fundamental fairness of the
agency hearing is in the possession of the government, discovery is available to the
section 405(g) plaintiff so that she can attempt to convince the district court that a remand
to the Secretary for the taking of new evidence is appropriate." Id. at 95.
The facts in this case are distinguishable. Here, the GAO study was published in
April 1992 and W illiams knew of its existence and the report was mentioned along with
his allegations of systemic racial bias in a 1996 administrative hearing. Unlike in
Hummel, Williams did not show the materiality of the evidence requested or that the
evidence existed and the government was in possession of it. Moreover, Williams never
claimed a specific ALJ presiding over his case was biased and undermined the
fundamental fairness of his agency hearing. The fairness of the agency proceedings were
not implicated by Williams' document demands. As noted, he received favorable
decisions at the administrative law judge level. Therefore, Hummel is inapposite.
9The 1992 GAO study on racial differences in disability decisions found that "[w]ithin
the general population . . . blacks were receiving benefits at a higher rate than whites."
The report recommended that "the Commissioner . . . investigate the reasons for the racial
differences in allowance rates in the initial DDS decisions for young SSI applicants, as
well as for all decisions at the ALJ level" and neither of these categories apply to
Williams. Williams filed for Title II benefits, not supplemental social security income
(continued...)
6
Additionally, Williams' request for data related to the 1992 GAO study was properly
denied as he failed to show new evidence existed8 that was material.9

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9(...continued)
benefits. Moreover, Williams was not a "young applicant" (under age 50) even at the
time of his first application for benefits in 1987. Finally, Williams received three
favorable decisions at the administrative law judge level. Therefore, Williams failed to
show how the evidence he requested is material.
7
III.
For the foregoing reasons, we will affirm the judgment of the District Court.

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TO THE CLERK:
Please file the foregoing opinion.
/s/ Anthony J. Scirica
Circuit Judge
DATED: May 23, 2002

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