UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

FRED L. SALLING,

Plaintiff-Appellant,

v.

No. 99-1772

KENNETH S. APFEL, COMMISSIONER OF

SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

for the Western District of Virginia, at Big Stone Gap.

James P. Jones, District Judge.

(CA-98-109-2-B)

Submitted: October 29, 1999

Decided: November 15, 1999

Before HAMILTON, MICHAEL, and MOTZ, Circuit Judges.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

Terry G. Kilgore, Gate City, Virginia, for Appellant. James A. Winn,

Chief Counsel, Region III, Patricia M. Smith, Deputy Chief Counsel,

David F. Chermol, Assistant Regional Counsel, Office of the General

Counsel, SOCIAL SECURITY ADMINISTRATION; Robert P.

Crouch, Jr., United States Attorney, Julie C. Dudley, Assistant United

States Attorney, Roanoke, Virginia, for Appellee.

_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See

Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Fred L. Salling appeals the decision of the district court granting

summary judgment to the Commissioner of Social Security, and

upholding the denial of Salling's claim for a period of disability and

application for disability insurance benefits under Title II of the

Social Security Act, 42 U.S.C.A. §§ 401-433 (West Supp. 1999) (the

"Act"). Salling applied for benefits on February 5, 1996, alleging disability since December 20, 1995, and received a hearing before an

administrative law judge ("ALJ"). By decision dated May 20, 1997,

the ALJ found that Salling was not disabled within the meaning of the

Act. Specifically, the ALJ found that Salling has residual functional

capacity to perform light work, as defined in the applicable regulations.

Salling filed a request for review of the hearing decision on May

30, 1997, and subsequently submitted additional evidence on his

behalf. Specifically, Salling's attorney submitted a letter dated September 29, 1997, to which he attached a letter from Salling's treating

physician, Dr. Winegar, dated September 18, 1997. In his letter, Dr.

Winegar identified Salling's history of low back pain due to degenerative disc disease and spinal stenosis. Dr. Winegar noted that Salling

had suffered a "recent flare up" which necessitated medical attention

and resulted in Salling being "very limited as far as work activity,"

but he failed to specify a more exact date either for the flare-up or the

medical attention. He noted that Salling could be expected to have

continued flare-ups of back pain with minimal activity. He opined

that Salling was "totally disabled due to the condition of his back after

surgery" because more intermittent "flare-ups" of his back condition

were "anticipated."

The Social Security Administration's Appeals Council denied

review, finding that the additional evidence Salling submitted was not

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material to the question of disability covered by the ALJ's decision

because it failed to date back to before the date of the ALJ's decision.

Consequently, the ALJ's opinion constitutes the final decision of the

Commissioner.

Salling filed a complaint in the district court, claiming that the

Appeals Council erred in failing to adequately consider the additional

medical evidence presented to it following the ALJ's hearing decision. Salling also filed in the district court a letter, stating that "the

Commissioner's decision is not supported by substantial evidence or

. . . should be reversed and the case remanded." In the letter, Salling

challenged the ALJ's decision based solely on the extra-record evidence he attached to his letter, the same evidence he submitted to the

Appeals Council when he sought review. In response, the Commissioner filed a motion for summary judgment asking that the district

court affirm the ALJ's decision and deny Salling's request for a

remand.

After reviewing the additional evidence Salling submitted, the district court found that the Commissioner's decision was supported by

substantial evidence, and that plaintiff's counsel's letter of September

29, 1997, merely summarized the attached opinion of Dr. Winegar

and its purported relevance to Salling's case. It also found that a plain

reading of Dr. Winegar's letter demonstrated that it lacks the time reference to properly date back to before the ALJ's decision, because Dr.

Winegar provides no date for the "recent" flare-up nor for Salling's

visit to his physician. Also, the district court determined that in light

of the September 18, 1997, date of the letter, a"recent" occurrence

of back pain cannot plausibly be read to date back to May 20, 1997,

or before.

In his appeal before this court, Salling claims only that the Commissioner's decision regarding his effective date of disability as June

20, 1998, is not supported by substantial evidence in light of the September 18, 1997, medical opinion of his treating physician, Dr. Winegar. Stated differently, Salling does not challenge the Commissioner's

decision in and of itself, but rather takes issue with the decisions of

the Appeals Council and the district court that the additional evidence

Salling submitted on review was not material to his case.

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Title 42 of the United States Code provides that a district court

"may at any time order additional evidence to be taken before the

Commissioner of Social Security" where there has been a showing

that there is "new evidence," which is material and that there exists

good cause for the party's failure to incorporate the evidence into the

record in a prior proceeding. See 42 U.S.C.A. § 405(g) (West Supp.

1999). The additional evidence must be new, material, and relate to

the period on or before the date of the ALJ's decision. See Wilkins v.

Secretary, Dep't of Health & Human Servs., 953 F.2d 93, 95-96 (4th

Cir. 1991) (en banc). "Evidence is material if there is a reasonable

possibility that the new evidence would have changed the outcome."

Id. at 96 (citation omitted).

In this case, the relevant time period is from December 20, 1995,

Salling's alleged disability onset date, to the ALJ's decision date,

May 20, 1997. We find that the district court properly held that,

because the evidence contained in Dr. Winegar's letter of September

18, 1997, did not relate to the period on or before the date of the

ALJ's hearing decision, it cannot change the outcome in this case, and

thus is not material. Id. at 95-96. Accordingly, because Dr. Winegar's

September 18, 1997, letter does not constitute material new evidence,

no remand was warranted. See 42 U.S.C.A.§ 405(g); Wilkins, 953

F.2d at 95-96.

Because Salling has not otherwise challenged the ALJ's decision

as being unsupported by substantial evidence either before the

Appeals Council, the district court, or in his brief in this court, we

affirm, on the reasoning of the district court, its decision that the

Commissioner's decision is supported by substantial evidence, and

that the correct law was applied. See 42 U.S.C.A. § 405(g); Hays v.

Sullivan, 907 F.2d 1453, 1456 (4th Cir. 1990). We dispense with oral

argument because the facts and legal contentions are adequately presented in the materials before the Court and argument would not aid

the decisional process.

AFFIRMED

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