UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONALD R. McABEE, 

Plaintiff-Appellant,

v.

WILLIAM A. HALTER, Acting

Commissioner of Social Security,

Defendant-Appellee,  No. 00-2198

and

DONNA E. SHALALA, SECRETARY,

UNITED STATES DEPARTMENT OF

HEALTH AND HUMAN SERVICES,

Defendant. 

Appeal from the United States District Court

for the District of South Carolina, at Florence.

Henry M. Herlong, District Judge.

(CA-99-1508-4-20BF)

Argued: September 26, 2001

Decided: October 19, 2001

Before MOTZ, TRAXLER, and GREGORY, Circuit Judges.

Affirmed by unpublished per curiam opinion. 

COUNSEL

ARGUED: David F. Stoddard, WALDREP & STODDARD, Anderson, South Carolina, for Appellant. William Thomas Dawson, Assis-
tant Regional Counsel, Office of the General Counsel, SOCIAL

SECURITY ADMINISTRATION, Denver, Colorado, for Appellee.

ON BRIEF: Frank W. Hunger, Assistant Attorney General, J. Rene

Josey, United States Attorney, John Berkley Grimball, Assistant

United States Attorney, Deana R. Ertl-Lombardi, Regional Chief

Counsel, Region VIII, Office of the General Counsel, SOCIAL

SECURITY ADMINISTRATION, Denver, Colorado, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c). 

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

2 MCABEE v. HALTER
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. 

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

MCABEE v. HALTER 3
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 headaches" and that "[w]hile the exact mechanism that causes these headaches has not been identified," McAbee

4 MCABEE v. HALTER
was suffering from "chronic 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 headaches. 

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. A

reviewing court can remand only if the claimant establishes that the

new evidence "is material and that there is good cause for the failure

to incorporate such evidence into the record in a prior proceeding."

42 U.S.C. § 405(g) (1994). 

Evidence is material "if there is a reasonable possibility that the

new evidence would have changed the outcome." Wilkins v. Secretary, 952 F.2d 93, 96 (4th Cir. 1991) (en banc) (citation omitted);

accord Borders v. Heckler, 777 F.2d 954, 955-56 (4th Cir. 1985).

McAbee’s new evidence therefore must constitute objective medical

MCABEE v. HALTER 5
evidence of a condition that "could reasonably produce the pain or

other symptoms alleged." 42 U.S.C. § 423(d)(5)(A) (1994). In addition, McAbee must establish that this evidence, when considered in

conjunction with all evidence, "would lead to a conclusion that the

individual is under a disability" within the meaning of the Social

Security Act. Id. Put another way, McAbee’s new evidence must not

only provide an objective medical basis for the headaches, but must

also be sufficient, in light of the record, to alter the ALJ’s determination as to "the effect of pain on a claimant’s ability to function." Foster v. Heckler, 780 F.2d 1125, 1128 (4th Cir. 1986) (citing Myers v.

Califano, 611 F.2d 980 (4th Cir. 1980)). 

Even assuming that the evidence as to the effect of Hepatitis C

combined with Dr. Bowman’s 1999 new diagnosis of "chronic myofascial pain" reasonably could be understood to identify a source of

debilitating, untreatable headaches, McAbee’s evidence does not support a finding of "disability" in light of the other evidence properly

considered by the ALJ. Dr. Bowman’s 1999 statement as to "chronic

myofascial pain" failed to place his diagnosis as to McAbee’s "debilitating headaches" in the relevant time period, which includes only the

time period prior to the ALJ hearing, i.e., 1992 or 1993 through

August, 1997. Even more significantly, Dr. Bowman’s conclusory

statement does not suffice to outweigh the reports he and other physicians dictated contemporaneously with their treatment of McAbee

during the relevant time period. Craig v. Chater, 76 F.3d 585, 590

(4th Cir. 1996) (stating that a physician’s opinion should be accorded

"significantly less weight" if it "is not supported by the clinical evidence or if it is inconsistent with other substantial evidence"); 20

C.F.R. § 416.927(c)(2) (2001) (providing that all evidence is weighed

when a medical opinion "is inconsistent with other evidence or is

inherently inconsistent"). 

Dr. Bowman’s 1999 statement reports that McAbee suffers from

"debilitating headaches" that "even prevent light exertion." These

statements are inconsistent with those contained in his prior reports,

in which Dr. Bowman makes only one passing reference to a "headache," states that McAbee has reached maximum improvement, and

recommends that McAbee "attempt [to] return to full duty . . . with

a splint" or "consider vocational rehabilitation." Dr. Bowman’s 1999

statement is also contradicted by medical reports from McAbee’s

6 MCABEE v. HALTER
other treating and examining physicians, who concluded, as Dr. Bowman had in his prior reports, that McAbee was capable of returning

either to his present job or to another line of work. See Hays v. Sullivan, 907 F.2d 1453, 1458 (4th Cir. 1990) (crediting statements by two

physicians recommending that the claimant return to work). These

earlier medical reports are inconsistent with Dr. Bowman’s assertion

in 1999 that McAbee was then suffering from "debilitating headaches" that presented such a substantial barrier to employment that

McAbee was "disabled." 

McAbee’s Hepatitis C conclusion also does not suggest that McAbee suffered from debilitating headaches constituting a "disability."

First, there is no evidence that McAbee’s Hepatitis C was ever considered in treatment decisions during the relevant time period. Therefore, the limiting effect of Hepatitis C on available remedies could not

have contributed to the headaches or to the inability to control them.

Moreover, McAbee’s own testimony at the hearing, which must be

considered in conjunction with any new evidence, virtually forecloses

finding that McAbee suffered debilitating headaches that constituted

a "disability." Although McAbee described headaches that were sporadically painful, he also testified at the hearing that his headaches,

in fact, were often "just a dull ache" and that he remained capable of

participating in various activities inconsistent with a "severe" disability. Mickles v. Shalala, 29 F.3d 918, 921 (4th Cir. 1994) (rejecting

claimant’s subjective reports of pain where she was able to perform

various household chores incompatible with "disability" under the

Act). McAbee did not explain why, when he made numerous visits to

treating and examining physicians during the relevant time period, he

did not seek treatment for headaches until 1996, at least three years

after their alleged onset. Nor does he explain why the records document that even in 1996 he complained only once of a "headache" and

that this was his sole complaint of a headache prior to the ALJ hearing. Id. (affirming denial of benefits where claimant sought treatment

only through "one trip to the emergency room for her tension headaches"). For these reasons, McAbee’s new evidence does not begin to

demonstrate that the ALJ, equipped with such evidence, would have

reached a different conclusion with respect to the effect of such pain

on McAbee’s residual functioning capacity. See Foster v. Heckler,

780 F.2d 1125, 1130 (4th Cir. 1986) (citation omitted). Because we

MCABEE v. HALTER 7
therefore hold that McAbee has failed to show that his "newly discovered evidence" is material, we need not reach the issue of whether

McAbee established "good cause" for his failure to present the evidence to the Appeals Council. 

III.

For these reasons, the district court’s judgment denying remand to

the Secretary of Health and Human Services is

AFFIRMED.

8 MCABEE v. HALTER