UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RUTH E. HART,

Plaintiff-Appellant,

v.

No. 98-2350

KENNETH S. APFEL, COMMISSIONER OF

SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Middle District of North Carolina, at Rockingham.

James A. Beaty, Jr., District Judge.

(CA-97-122-3)

Submitted: February 23, 1999

Decided: June 7, 1999

Before ERVIN, NIEMEYER, and WILLIAMS, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

John F. Eichorn, Rockingham, North Carolina, for Appellant. Frank

W. Hunger, Assistant Attorney General, Walter C. Holton, Jr., United

States Attorney, Gill P. Beck, Assistant United States Attorney, Mary

Ann Sloan, Chief Counsel, Region IV, Dennis R. Williams, Deputy

Chief Counsel, Ronald Lamar Paxton, Assistant Regional Counsel,

John C. Stoner, Assistant Regional Counsel, Office of the General

Counsel, SOCIAL SECURITY ADMINISTRATION, Atlanta, Georgia, for Appellee.
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Ruth E. Hart appeals the district court's order and judgment adopting the recommendation of the magistrate judge, granting summary

judgment to the Commissioner, denying Hart's motion for summary

judgment, and affirming the Commissioner's decision denying Hart's

application for disability insurance benefits. This appeal concerns the

effect of new evidence submitted to the Appeals Council. Hart contends that a review of the record as a whole, including the new evidence, establishes that the Commissioner's final decision is not

supported by substantial evidence. Finding no reversible error, we

affirm.

Hart was born in July 1946 and has a high school education. She

formerly worked in a drapery factory as a quality control inspector,

charge back worker, and sewing machine operator. She stopped working in November 1993. The relevant period for Hart's application for

disability benefits spans from the alleged onset of disability, on

November 8, 1993, to the date of the administrative law judge's

("ALJ") decision, February 21, 1996. Hart alleged she was disabled

due to carpal tunnel syndrome and residual effects from ulnar and

medial nerve surgery on both elbows.

The evidence before the ALJ established the following. In November 1993, Hart had surgery for carpal tunnel syndrome. The residual

effects after surgery included limits on her ability to lift and carry

objects. Specifically, Hart reported pain in her right shoulder and she

lost some grip strength in her right wrist. Otherwise, she had a full

range of motion in both shoulders.

Because of her persistent complaints of pain, Hart was referred to

Dr. Austin, a rheumatologist. Austin concluded that the pain was due

to systemic lupus erythematosus and related synovitis.* According to

_________________________________________________________________

*Lupus erythematosus is an illness causing skin lesions. See STEDMAN'S

MEDICAL DICTIONARY 1000 (26th ed. 1995). Synovitis is an inflammation

 2
Austin, Hart reported that she experienced numbness in her hands and

pain in her right shoulder. Austin observed full range of motion in her

right shoulder and a slight loss of range of motion in her left shoulder.

Hart had a slight loss of range of motion in her knees with some pain.

Austin treated her with injections of pain medication.

At the hearing, Hart testified that whenever she used her hands,

such as for driving or writing letters, her hands would swell and her

fingers would cramp. She also complained of constant pain in her

arms, shoulders, and knees. The pain in her knees occurred when she

was in motion, such as climbing a set of stairs. At times, Hart

claimed, her left arm would feel limp and numb. She also had problems reaching overhead with her right arm. Hart stated that medication controlled the pain and moving her arm helped relieve the

numbness. Hart also claimed that she could only stand for a half an

hour or sit for an hour before she began to feel pain. She also claimed

that she could not lift more than fifteen pounds.

Hart admitted that she could bend down to pick objects up off the

floor and could walk a block. She stated that she did all the housework at home, but had trouble making the beds, sweeping the floor,

standing at the sink washing dishes, or carrying full bags of groceries.

The ALJ applied the sequential five step analysis found at 20

C.F.R. § 404.1520 (1998). The ALJ found that Hart: (1) had not

engaged in substantial gainful employment since the onset of her

alleged disability; (2) had a severe impairment; (3) did not have an

impairment that meets or equals medical criteria warranting a finding

of disability without considering vocational factors; (4) but did have

an impairment which prevented her from performing her past relevant

work because of her limitations with regard to lifting; and (5) had the

full residual functional capacity to perform the full range of sedentary

work.

The ALJ concluded that Hart had the residual functional capacity

to perform the physical exertion requirements of work except for lifting and carrying more than ten pounds on an occasional basis or

_________________________________________________________________

of a synovial membrane, usually that of a joint. See id. at 1746.

 3
standing and walking more than two hours in an eight hour day. The

ALJ also concluded that there were no non-exertional limitations. The

ALJ found that Hart's testimony regarding her pain was credible, but

that the pain was not so disabling that it prevented her from engaging

in work activities. Because the ALJ found that Hart did not have any

non-exertional limitations, he used the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpt. P, App. 2 (1998) ("grids") to determine that Hart was not disabled. The decision denying benefits was

issued on February 21, 1996.

Hart requested review by the Appeals Council. She submitted two

additional treatment notes from Austin. The notes referred to examinations conducted on April 3, 1996, and May 15, 1996.

On April 3, 1996, Hart saw Austin on an emergency visit due to

"dramatically worsening pain in both wrists and knees." (Administrative Record ("AR") at 186). He diagnosed degenerative bone disease

at the patellofemoral joint of both knees as a cause of the knee pain.

Previously, the pain had been attributed to the lupus. He observed

"dramatic effusion and clear excessive heat in both knees, along with

subpatella crepitance." Austin found that the synovitis had "settled

down fairly well, but incompletely." (Id.) He concluded that Hart's

pain in her knees was related to either the lupus or advanced degenerative arthritis. Austin also found that Hart's hips were fully mobile,

her ankles were not inflamed, she had intact wrists with motion loss

that was not marked and no sign of degenerative bone disease, the

elbows fully extended, the shoulders were fully mobile, and she

developed a forearm rash with little activity. Austin injected Hart's

knees with a pain reliever. He opined that if the pain in the knees did

not subside, Hart would have to have a surgical consultation. Austin

also opined that Hart was "totally disabled for gainful employment

due to a multitude of factors." (AR at 187).

Hart returned to Austin on May 15, 1996. The pain in her knees

reappeared one week after her previous visit, leading Austin to conclude that the pain was caused by the degenerative disease. According

to Austin, the pain occurs when Hart gets up from a seated position

or "walks around for awhile." (AR at 188). He also found that Hart's

knees "are improved and not symptomatic." (Id.) After a physical

examination, he found that Hart had weak grip strength, no sign of

 4
synovitis in her wrists, the elbows fully extended, the shoulders and

hips were fully mobile, and she had "a marked crepitance in the subpatella area of each knee, with a small effusion but no excessive

heat." (Id.) Austin concluded that Hart's hand cramping was an ongoing symptom that would not improve, and that her knees were not

symptomatic enough to warrant knee surgery at that time, but would

require it in the future. He again opined that Hart was totally disabled

for gainful employment.

The Appeals Council considered the new evidence consisting of

Austin's notes and concluded that the new evidence did not provide

a basis for changing the ALJ's decision. Accordingly, the Appeals

Council denied Hart's request for review.

In the district court, the magistrate judge concluded that the only

aspect of Austin's reports that could be considered new evidence was

the diagnosis of degenerative arthritis. According to the magistrate

judge, the manifestation of this illness as recorded by Austin did not

provide a basis for changing the ALJ's decision. Furthermore, the

magistrate judge found that Austin's opinion that Hart was totally disabled was not of special significance, specifically because Austin did

not explain how Hart's impairments imposed functional limitations on

her ability to do work-related activities. The district court reviewed

Hart's objections de novo and adopted the magistrate judge's recommendation to grant summary judgment to the Commissioner, deny

summary judgment to Hart, and dismiss the action.

Hart concedes that the ALJ's decision is supported by substantial

evidence when considering only the evidence before the ALJ. Hart

argues, however, that a review of the record as a whole, including the

new evidence, establishes that the denial of benefits was not supported by substantial evidence. She contends that the new evidence

consists of the diagnosis of degenerative bone disease, the condition

of her hands and wrists, and Austin's opinion of her disability.

This court must determine whether the Commissioner's findings

are supported by substantial evidence, see Richardson v. Perales, 402

U.S. 389, 390, 401 (1971), and whether the correct legal standards

were applied. See Hays v. Sullivan, 907 F.2d 1453, 1456 (4th Cir.

1990). Substantial evidence is that evidence which"`a reasonable

 5
mind might accept as adequate to support a conclusion.'" Perales,

402 U.S. at 401 (quoting Consolidated Edison Co. v. NLRB, 306 U.S.

292, 300 (1939)). When the record includes new evidence, as in the

instant case, our review is of the whole record, including the new evidence, in order to determine whether substantial evidence supports the

Commissioner's findings. See Wilkins v. Secretary, Dep't of Health

& Human Servs., 953 F.2d 93, 96 (4th Cir. 1991).

Pursuant to 20 C.F.R. § 404.970(b) (1998), the Appeals Council

shall consider evidence submitted with a request for review if the evidence is new, material, and "relates to the period on or before the date

of the [ALJ's] hearing decision." The Appeals Council must then

evaluate the entire record including the new and material evidence

and determine whether the ALJ's findings are contrary to the weight

of the evidence.

The evidence submitted to the Appeals Council consisted of both

new and cumulative evidence and an assessment of Hart's condition

that did not relate to her condition during the period before the ALJ's

decision. Austin's notes consisted of a restatement of symptoms contained in reports submitted to the ALJ, a description of worsening

symptoms, an illness not previously diagnosed but possibly present

prior to the ALJ's decision, and, for the first time, an opinion that

Hart was totally disabled.

Substantial evidence supports the ALJ's findings even if we consider the new diagnosis of degenerative bone disease in the knees as

a source of Hart's problems with her knees. Despite the new diagnosis, the symptoms remained the same. Hart had nearly full range of

motion in her knees, albeit with limits on walking and standing for a

significant length of time. The ALJ considered this evidence when

determining that Hart could perform sedentary work that did not

require her to stand or walk for more than two hours in an eight hour

day. Even with a different diagnosis, there was adequate evidence

supporting the ALJ's findings.

Hart also contends that if the ALJ had Austin's notes, he would

have found that Hart had arthritis of a major weight-bearing joint, a

listed impairment sufficient to warrant finding her disabled. See 20

C.F.R. pt. 404, Subpt. P, App. 1, § 1.03 (1998). This issue was not

 6
raised before the magistrate judge below and thus, is not properly

before this court. See Bregman, Berbert & Schwartz, L.L.C. v. United

States, 145 F.3d 664, 670 n.8 (4th Cir. 1998) (declining to consider

alternative argument because it was not raised below and appellant

failed to show an exceptional circumstance that prevented it from so

doing).

Furthermore, Hart does not properly support this contention

because the record does not include the necessary X-ray evidence

showing "either significant joint space narrowing or significant bony

destruction." 20 C.F.R. pt. 404, Subpt. P, App. 1, § 1.03(A).

Hart contends that Austin's notes also included new evidence

regarding her wrists and hands. Austin's findings regarding Hart's

wrists and hands were, for the most part, cumulative. The symptoms

were reported previously by Austin and others. The ALJ considered

these reports and Hart's own complaints of numbness and cramping.

Austin's new notes described a progressively worsening situation

with regard to Hart's grip strength in her wrists. No note was made

of grip strength in Austin's reports filed prior to the ALJ's decision.

The ALJ did, however, review the objective medical evidence that

was in the record concerning Hart's grip strength and concluded that

it did not prevent Hart from performing sedentary work. (AR at 15,

136). Austin's findings about Hart's grip strength do not relate back

to the period prior to the ALJ's decision. Since the evidence concerning Hart's wrists and hands was either cumulative or not relevant to

the period prior to the ALJ's decision, it should not be considered

new evidence. See 20 C.F.R. § 404.970(b).

Hart also contends that because Austin's notes submitted to the

Appeals Council describe a non-exertional limitation with regard to

her ability to manipulate objects due to the decrease in grip strength,

the ALJ erred in using the grids to determine that Hart was not disabled. However, because this evidence does not relate back, it is not

relevant to the ALJ's decision to use the grids. See id.

As for Austin's opinion that Hart was totally disabled, there is no

evidence that this opinion relates back to the period of time prior to

the ALJ's decision. See id. A physician's opinion regarding a claimant's disability must be either supported by clinical evidence or con-

 7
sistent with other substantial evidence, otherwise it is accorded

significantly less weight. See Craig v. Chater , 76 F.3d 585, 590 (4th

Cir. 1996). The evidence for the relevant period of time does not support Austin's conclusion. Furthermore, Hart's own testimony refutes

a finding of total disability. The ALJ properly concluded that, based

on Hart's own description of the extent of her limitations with regard

to standing, sitting and walking, she was able to perform sedentary

work.

We affirm the district court's order. We dispense with oral argument because the facts and legal contentions are adequately presented

in the material before the court and argument would not aid the decisional process.

AFFIRMED

 8