Hammond v. Apfel, Commissioner

5 F. App'x 101
CourtCourt of Appeals for the Fourth Circuit
DecidedFebruary 1, 2001
Docket00-1067
StatusUnpublished
Cited by8 cases

This text of 5 F. App'x 101 (Hammond v. Apfel, Commissioner) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hammond v. Apfel, Commissioner, 5 F. App'x 101 (4th Cir. 2001).

Opinion

OPINION

PER CURIAM.

William Hammond appeals from a judgment of the district court denying a remand to the Secretary of Health and Human Services for consideration of additional evidence and upholding the determination of the Commissioner of Social Security that he was ineligible for disability insurance benefits. For the following reasons, we affirm.

I.

Hammond injured his back in a work-related accident on April 5, 1990. He traces the onset of his disability to that accident. Hammond was treated by Dr. Phillip L. Schneider, an orthopedist, from April 12, 1990 until November 1993. He was also examined and treated by several other doctors between 1993 and 1995 for his back condition. He underwent back surgery in February 1992, but his symptoms of pain persisted. He has been diagnosed with severe spinal stenosis, chronic degenerative disc disease, and disc bulging. Hammond also complained of urinary retention and frequency problems to Dr. Schneider and Dr. Allan H. Macht. The physicians recorded his subjective complaints in their reports and recommended that he visit a urologist. According to the reports, Hammond informed the doctors that he could not afford to see a urologist because he did not have insurance. Hammond applied for disability insurance benefits pursuant to Title II of the Social Security Act, claiming he was totally disabled due to back pain, lumbar surgery, depression and obesity. He was initially denied benefits. After he requested reconsideration and his claim was again denied, he requested a hearing before an Administrative Law Judge (ALJ).

*103 At the hearing, Hammond testified about his urinary frequency and back-related problems. After considering Hammond’s subjective evidence and medical evidence from several physicians covering the period from the accident to the date last insured, December, 31, 1995, the ALJ determined that Hammond was not disabled. The ALJ concluded that Hammond had severe back and leg pain, obesity, and status post-laminectomy, but he did not have an impairment listed in the regulations. He also concluded that Hammond’s urinary frequency was not a severe impairment. The ALJ reviewed Hammond’s subjective pain complaints and determined that the degree of pain alleged was not supported by the medical evidence and his complaints were not fully credible. The ALJ also determined that Hammond could perform the full range of sedentary work reduced by limitations to sit or stand at his option and lift or cany up to 10 pounds. Finally, the ALJ concluded that Hammond could not perform his past relevant work, but that he was capable of performing certain sedentary, unskilled occupations suggested by the vocational expert. On June 7, 1997, Hammond filed a request for review of the decision with the Appeals Council. The request was denied on January 26, 1999. The decision of the ALJ became the final decision of the Commissioner. While the request for review was pending before the Appeals Council, Hammond began treatment with Dr. Ronald F. Tutrone, a board certified urologist. The treatment covered the period from September 29, 1997 to April 21, 1999. Dr. Tutrone reported that Hammond had a small capacity, neurogenic bladder, which caused his urge incontinence and frequency. Dr. Tutrone further reported that his condition did not improve with medication, and that Mr. Hammond was a candidate for a sacral nerve stimulation. In addition, Dr. Daniel D. Dietrick, a urologist who evaluated Hammond once in 1998 and once in 1999, reported that the urinary condition was entirely related to Hammond’s back injury.

Hammond filed a civil action in district court. In addition to challenging the final administrative decision, he requested a remand for a new hearing to consider the recently obtained urologist reports. The district court denied the request for a remand and held that substantial evidence supported the ALJ’s findings. This appeal followed.

Hammond claims that the district court erred in denying a remand because the additional evidence meets the prerequisites for remand. He claims further that the ALJ’s finding that his urinary frequency was not a severe impairment is not supported by substantial evidence. He also claims that the ALJ failed to consider all of the testimony of the vocational expert. Finally, he claims that the ALJ improperly assessed his credibility.

II.

Hammond claims that the additional evidence he submitted to the magistrate judge warranted a remand to the Secretary of Health and Human Services for a new hearing. In an action to review denial of social security disability benefits, a reviewing court may remand a case to the Secretary if three prerequisites are met: (1) the evidence must be new; (2) it must be material; and (3) there must be “good cause for the failure to incorporate such evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g); Borders v. Heckler, 777 F.2d 954, 955 (4th Cir.1985). We are satisfied that the evidence is new and material but unpersuaded that “good cause” has been shown.

Hammond complained of urinary retention and frequency to at least two *104 physicians who treated and examined him after his accident and before the date last insured. He also asserted severe urinary frequency during the administrative hearing in February 1997. Despite recommendations from his doctors, he did not visit a urologist uritil September 1997. Hammond claims that he was unable to afford to see a urologist earlier because he was not insured until then. While we agree that an inability to afford treatment may not be held against a claimant, see Gordon v. Schweiker, 725 F.2d 231, 237 (4th Cir. 1984), Hammond has not explained, and the record is void of any reason, why he could suddenly afford treatment in September 1997 but not earlier. At oral argument, Hammond’s counsel stated that workman’s compensation insurance covered the urologist visits. Nevertheless, he could not explain why, if the work-related accident occurred in 1990, the workman’s compensation insurance did not begin until 1997. Hammond bore the burden of demonstrating objective evidence of his disability. Pass v. Chater, 65 F.3d 1200, 1203 (4th Cir.1995). Despite the fact that he was aware of his urinary problems as early as November 1993, he did not pursue the seemingly available insurance until at least four years after his urinary problems began. Without any explanation as to why his workman’s compensation would not cover treatment earlier, we find that Hammond has failed to demonstrate “good cause” to excuse his failure to submit the urologists’ reports.

III.

Having determined that the additional evidence may not be considered, we must determine whether substantial evidence supports the findings of the ALJ. Under the Social Security Act, we must uphold the factual findings of the ALJ if they are supported by substantial evidence in the record and were reached through application of the correct legal standard. Coffman v. Bowen, 829 F.2d 514

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5 F. App'x 101, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammond-v-apfel-commissioner-ca4-2001.