McAbee v. Halter, Commissioner

21 F. App'x 126
CourtCourt of Appeals for the Fourth Circuit
DecidedOctober 19, 2001
Docket00-2198
StatusUnpublished
Cited by1 cases

This text of 21 F. App'x 126 (McAbee v. Halter, 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
McAbee v. Halter, Commissioner, 21 F. App'x 126 (4th Cir. 2001).

Opinion

OPINION

PER CURIAM.

Donald McAbee appeals from the district court judgment denying a remand to the Secretary of Health and Human Services for consideration of newly discovered evidence. Because McAbee has failed to establish the materiality of the proffered new evidence, we affirm.

I.

McAbee, a former mechanic and heavy equipment operator, applied for social security disability insurance benefits on December 27, 1995. In his claim for benefits, McAbee stated that he had been unable to work since September 27, 1994, as a result of debilitating headaches and pain in his right arm, shoulder, and neck. McAbee’s initial application for disability insurance benefits and his request for reconsideration were denied.

McAbee thereafter made a timely request for a hearing before an administrative law judge (ALJ). At the hearing, McAbee testified that he suffered from “arm pain most constantly,” and from headaches almost daily. He described his headaches as typically “just a dull ache” that intensified when he became active. McAbee also testified that he could take out the trash, mow the grass, and occasionally pull weeds, but that he was incapable of fishing, driving long distances, or performing any tasks that required him to lie on his back, reach over his head, or stand for eight hours a day.

The medical records from McAbee’s treating and examining physicians corroborate McAbee’s account of pain in his right arm, shoulder, and neck. The medical records reflect that McAbee made at least 25 visits to treating physicians for such pain from November 1993 through the date of the ALJ hearing in August 1997. In the course of these visits, doctors determined that McAbee suffered from an 8-12% impairment of his upper right extremity, but were unable to diagnose the cause of his arm, shoulder, and neck pain. By 1995, the doctors reported that McAbee had reached maximum improvement and consistently recommended that McAbee either return to work, subject to certain restrictions, or enter vocational rehabilitation to prepare him for another line of work.

*128 The medical records provide less support for McAbee’s account of debilitating headaches. McAbee testified at the hearing that he had suffered from headaches since 1992 or 1993, but the medical records reflect that McAbee did not complain of headaches until February 1996. According to the medical records, this February 1996 visit is the only time that McAbee complained of headaches in the four years prior to the hearing before the ALJ, and, moreover, McAbee did not visit a doctor again until January 1997, almost one full year later.

A consulting medical examiner, Dr. Schwartz, evaluated McAbee in April 1997 and determined that McAbee remained capable of sitting, standing, walking, stooping, crouching, kneeling, and crawling. The consulting examiner also concluded that McAbee was limited to lifting or carrying 20-25 pounds and could not engage in repetitive pushing or pulling. Dr. Schwartz noted McAbee’s complaints of upper extremity pain and weakness; he did not note any complaint of headaches by McAbee.

A vocational expert, after considering McAbee’s medical records, testimony, educational level, and work experience, testified at the hearing regarding other jobs existing in the regional economy that McAbee remained capable of performing. This expert stated that pain in McAbee’s right arm, shoulder, and neck would not prevent him from performing the duties of a packer, cashier/clerk, and security person, and that thousands of these jobs existed within South Carolina. The expert also testified, however, that if McAbee had the headaches he described, they “would be debilitating in nature” and would cause problems of absenteeism, lack of concentration, and inability to complete tasks in a timely fashion. The ALJ agreed at the hearing to allow McAbee twenty days to produce additional medical evidence. McAbee subsequently submitted, and the ALJ considered, additional evidence consisting of a psychological evaluation and x-ray evaluations showing “minimal degenerative changes in[McAbee’s] right wrist and right shoulder.”

The ALJ issued his opinion on December 16, 1997. He found that McAbee’s right arm, shoulder, and neck pain, although “severe,” did not prevent McAbee from performing “light duty” or “sedentary” work. In addition, the ALJ found that McAbee’s headaches were not “medically determinable ‘severe’ impairments.” The ALJ found that McAbee’s failure to “receive [ ] or even seek treatment for his headaches” weighed against a finding that McAbee’s headaches were a “severe” impairment. The ALJ concluded that McAbee therefore was not qualified for disability insurance benefits.

McAbee filed a request for review with the Appeals Council. The Appeals Council denied the request on March 9, 1999, and adopted the ALJ’s decision as the decision of the Commissioner.

McAbee then filed for judicial review in the district court, which referred the case to a magistrate judge. At the hearing before the magistrate judge, McAbee identified new evidence that he argued warranted remand to the Secretary for consideration. The new evidence consisted of a signed statement, dated March 27, 1999, from Dr. Larry Bowman, an orthopaedic specialist who had treated McAbee from April 1995 through January 1999, and a “rediscovered” Hepatitis C diagnosis. McAbee argued that this “newly discovered evidence” constituted the necessary medical support for his headache claims.

Dr. Bowman’s statement, drafted primarily by McAbee’s lawyer with blanks that had been filled in by Bowman, reported that McAbee “has had debilitating *129 headaches” and that “[w]hile the exact mechanism that causes these headaches has not been identified,” McAbee was suffering from “chrome myofascial pain.” Dr. Bowman added, in his own handwriting, that McAbee’s Hepatitis C condition “limits most medications that have any effect on improving symptoms.” McAbee was first diagnosed with Hepatitis C after donating blood in 1990, but McAbee did not ask the ALJ to consider this evidence as a cause of McAbee’s condition, and McAbee “rediscovered” that he was suffering from the condition only after tests conducted in 1998 revealed high enzyme levels. Thus, the “rediscovered” Hepatitis C diagnosis was new evidence insofar as the condition was, after 1998, purported to cause headaches or limit available treatment for head-aches.

The magistrate judge issued a report and recommendation in which he recommended remand based on the new evidence. The district court rejected the magistrate judge’s recommendation and instead held that McAbee had failed to establish “good cause” for his failure to present his evidence at an earlier stage of the proceedings. The court found that McAbee possessed both the factual basis for Dr. Bowman’s 1999 statement and the new documentation of McAbee’s Hepatitis C condition prior to the Appeals Council’s ruling on March 9, 1999, and therefore should have submitted the evidence to the Appeals Council for consideration. This appeal followed.

II.

McAbee concedes that there was insufficient evidence at the hearing before the ALJ to support a determination of disability. The sole issue on appeal is therefore whether McAbee’s “new evidence,” consisting of Dr. Bowman’s 1999 statement and the Hepatitis C diagnosis, warrants a remand to the Secretary for a new hearing.

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