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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

No. 01-1361

DANIEL FRICKER

v.

*WILLIAM A. HALTER, ACTING COMMISSIONER OF SOCIAL SECURITY

Appellant

*{Pursuant to F.R.A.P. 43(c)}

Appeal from the United States District Co urt for the Eastern District of Pennsylvani a (D.C. Civil Action No. 00-cv-02796) District Judge: Honorable Marvin Katz

Submitted Pursuant to Third Circuit LAR 34. 1(a) December 6, 2001

Before: MANSMANN, ROTH and FUENTES, Circuit Judges

(Filed January 3, 2002)

OPINION

ROTH, Circuit Judge: Defendant Commissioner of Social Security appe als an Order of the U.S. District Court for the Eastern District of Pennsylvania, rev ersing the decision of the Administrative Law Judge (ALJ) to deny Plaintiff Da niel Fricker social security disability insurance (SSDI) benefits, and remanding the case with an order to award Fricker benefits. The Commissioner contends that t he District Court committed twoerrors. First, the District Court impermissibly co nsidered evidence which

had not been in the record before the ALJ but was submitted for the first time to the Appeals Council with Fricker's request for review. Second, the Dis trict Court erred by not treating the ALJ's findings as conclusive, even though they were supported by substantial evidence. For the reasons which follow, we will reverse the D istrict Court's Order and remand this case to the District Court to enter judgment in fav or of the Commissioner. I. Facts and Procedural History On September 16, 1996, Fricker filed an applic ation for SSDI benefits under 42 U.S.C. section 423 (2001), alleging that a back inj ury and related pain had disabled him since September 17, 1987. In this application, Fri cker averred that as of December 31, 1992, his date last insured, his disability rendere d him entirely unable to work. After the appropriate state agency denied, reconsidered and r e-denied his application, Fricker sought and was granted a hearing before an ALJ. During a May 18, 1998, hearing, the ALJ consid ered the testimony of Fricker and of a vocational expert, together with certain evide nce of Fricker's medical history. This evidence included various physicians' assessments o f Fricker's ability to work. Much of the medical evidence considered by the ALJ suggests that, as of the date Fricker was last insured, he was able to perform some types of work. See, e.g., Appendix at 114-17, 121, 131-33, 143-44, 287-365, 367-68, 486-89, 517, 529. An April 9, 1998, letter of Dr. Sofia Lam, considered by the ALJ stated, however, t hat Fricker "is not capable of performing any type of gainful employment at the pr esent time or in the future." (emphasis added). Based on the evidence before her , the ALJ found Fricker's allegations "excessive [and] not fully credible" and found Fric ker "capable of light and sedentary work." Accordingly, the ALJ denied Fricker's reque st for SSDI benefits. On June 2, 1998, six days before the ALJ's dec ision, Dr. Joseph Pongonis, a physician who had earlier provided an assessment su pporting Fricker's employability, wrote a letter stating "I feel that [Fricker] is un able to perform any type of work at this time or in the future." (emphasis added). The Pong onis Letter was not presented to the ALJ, and the ALJ did not consider it in rendering h er decision. Fricker presented thePongonis Letter for the first time to the Appeals C ouncil in connection

with a request for review of the ALJ's decision. The Appeals Council denied Fricker's request f or review, making the ALJ's decision the final decision of the Commissioner. S ee 20 C.F.R.  404.955, 404.981, 422.210 (2001). See also Sims v. Apfel, 530 U.S. 1 03, 106 (2000). Thereafter, Fricker commenced this civil action by filing a complaint w ith the District Court pursuant to 42 U.S.C.  405(g) (2001). On December 11, 2000, the District Court denied the Commissioner's motion for summary judgment and gran ted Fricker's motion for summary judgment. In reaching its decision, the Di strict Court considered and relied upon the Pongonis Letter which had been presented f or the first time to the Appeals Council. II. Jurisdiction and Standards of Revie w The District Court had jurisdiction over Frick er's request for judicial review of the Commissioner's denial of SSDI benefits pursuant to 42 U.S.C. section 405(g) (2001). Because the District Court's December 11, 2000 Orde r was a final judgment that disposed of all of the parties' claims, we have jur isdiction over the instant appeal pursuant to 28 U.S.C.  1291 (2001). We exercise plenary review over the question of whether it was proper for the District Court to con sider evidence not before the ALJ. See Matthews v. Apfel, 239 F.3d 589, 591 (3d Cir. 2001) (citing Tubari Ltd., Inc. v. NLRB, 959 F.2d 451, 453 (3d Cir. 1992)). We review de no vo the issue of whether the Commissioner's denial of benefits was supported by substantial evidence. See Plummer v. Apfel, 186 F.3d 422, 427 (3rd Cir. 1999) ("The r ole of this Court is identical to that of the District Court, namely to determine whether the re is substantial evidence to support the Commissioner's decision."). III. Discussion The first issue raised in this appeal - whethe r the District Court erred by considering evidence not before the ALJ - is contro lled by our decision in Matthews v. Apfel. In Matthews, we held that "when [a] claiman t seeks to rely on evidence that was not before the ALJ, the district court may remand t o the Commissioner but only if theevidence is new and material and if there was good cause why it was not

previously presented to the ALJ." Matthews, 239 F.3d at 593 ( citing Keeton v. DHHS, 21 F.3d 1064, 1067 (11th Cir. 1994); Newhouse v. Heckler, 7 53 F.2d 283, 286 (3d Cir. 1985)). See also 42 U.S.C.  405(g) (2001) ("[The District Court] may at any ti me order additional evidence to be taken before the Commissi oner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into t he record in a prior proceeding."). Fricker and the District Court relied on the Pongon is Letter, which was not brought before the ALJ. However, Fricker has not shown tha t the Pongonis Letter was new, that it referred to the relevant period when Fricker was insured, or that there was good cause for failing to present it to the ALJ. Therefore, t he District Court erred when it considered and relied upon the Pongonis Letter. Turning to the second of Commissioner's object ions - the District Court's determination that the ALJ's findings were not supp orted by substantial evidence - we also find error. As we noted in Plummer, we are "b ound by the ALJ's findings of fact if they are supported by substantial evidence in the r ecord." Plummer, 186 F.3d at 427 (citing 42 U.S.C.  405(g); Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986)). For purposes of our review, substantial evidence means "such relevant evidence

as a reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). We find that a reasonable mind certainly might accept as adequate the ample medical evidence suggesting Fricker's employability as of his date l ast insured. We note, moreover, that the Lam and Pongonis letters referred not to the pe riod on or before December 31, 1992, when Fricker was last insured, but to a date over f ive years later. For these reasons, we find that the ALJ's findings regarding Fricker's em ployability are conclusive. We will, therefore, reverse the District Court 's Order and remand this case to the District Court with directions to enter an order gr anting judgment in favor of the Commissioner.TO THE CLERK:

Please file the foregoing Opinion.

By the Court,

/s/ Jane R. Roth Circuit Ju dge