Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2002

Fisher v. Comm Social Security
Precedential or Non-Precedential:

Docket 1-2806




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Recommended Citation
"Fisher v. Comm Social Security" (2002). 2002 Decisions. Paper 107.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/107


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NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 01-2806


                           JAMES E. FISHER,
                                     Appellant

                                 v.

                      LARRY G. MASSANARI, ACTING
                   COMMISSIONER OF SOCIAL SECURITY



          On Appeal from the United States District Court
              for the Western District of Pennsylvania
                    (D.C. Civil No. 00-cv-00094)
         District Judge: Hon. D. Brooks Smith, Chief Judge


             Submitted Under Third Circuit LAR 34.1(a)
                          February 4, 2002

           Before:   SLOVITER, AMBRO, Circuit    Judges, and POLLAK, District
Judge

                       (Filed: Februry 5, 2002)



                   MEMORANDUM OPINION OF THE COURT


SLOVITER, Circuit Judge.
                                I.
     Claimant James Fisher appeals from the order of the District Court
affirming the
denial by the Commissioner of Social Security of his application for
Social Security
Income (SSI). Fisher alleged disability under SSI, primarily on the basis
of low back
pain resulting from a herniated disc combined with other medical problems.
His
application was denied administratively and on reconsideration. The
Administrative Law
Judge (ALJ) determined that Fisher had not met the standard of disability
to recover
benefits. He sought review of the ALJ decision before the Appeals Council
and
submitted additional medical evidence, but the Appeals Council denied
review. Fisher
then filed suit in the District Court which, as stated above, affirmed the
administrative
denial. Fisher filed a timely appeal.
                               II.
     Because we write solely for the parties, we need not set forth a
detailed recitation
of the background for this appeal and will limit our discussion to
resolution of the issues
presented. Fisher's principal complaint is that the District Court, in
determining whether
the ALJ's decision was supported by substantial evidence, did not consider
the additional
medical evidence he had submitted to the Appeals Council. In its ruling,
the District
Court followed the standard set forth in Matthews v. Apfel, 

(3d Cir. 2001),
for determining whether, on judicial review, an SSI claimant is entitled
to consideration
of additional medical evidence presented for the first time before the
Appeals Council.
Under that standard, when the Appeals Council has denied review, the
district court may
affirm, modify, or reverse the Commissioner's decision, with or without
remand, but
based only on the record before the ALJ. When the claimant seeks to rely
on evidence
that was not before the ALJ, the district court may remand to the
Commissioner, but only
if the evidence is new and material and if there was good cause why it was
not previously
presented to the ALJ. 

     Fisher vigorously disagrees with the Matthews opinion. However, our
Internal
Operating Procedures provide: "It is the tradition of this court that the
holding of a panel
in a reported opinion is binding on subsequent panels. Thus, no
subsequent panel
overrules the holding in a published opinion of a previous panel. Court
en banc
consideration is required to do so." 3d Cir. Internal Operating P. 9.1.
Fisher's argument
that some other courts differ is therefore not persuasive. We note that
decisions of the
Sixth, Seventh, and Eleventh Circuits follow the same path as we did in
Matthews. See
Falge v. Apfel, 

(11th Cir. 1998), Cotton v. Sullivan, 

(6th Cir.
1993), Eads v. Sec'y of Dep't of Health & Human Servs. (7th Cir. 1993).
     Fisher claims that because the ALJ and the Appeals Council "invited"
him to
submit additional evidence and the Appeals Council took the additional
evidence under
consideration in making its determination to deny review of the ALJ
decision, Matthews
cannot apply to this case. Fisher misunderstands the Matthews decision
and the
underlying statute. Section 405(g) of the Social Security Act states that
a district court
may "order additional evidence to be taken before the Secretary, 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 the record in a prior proceeding." 42
U.S.C.   405(g).
Matthews holds that when the Appeals Council has considered additional
evidence that
was not before the ALJ and denied review of the ALJ decision, the District
Court may
remand the case to the Commissioner to be considered with the additional
evidence only
if the evidence is new and material and if there is good cause why it was
not previously
presented to the ALJ. As Matthews points out, the "new and material
evidence is
transmitted with the record so that the district court will have before it
the evidence that
will be the subject of the remand if the claimant can show good cause why
such new and
material evidence was not submitted to the 

.
     The District Court held that Fisher failed to offer evidence showing
that the
additional medical evidence is material to his disability case or that
there was good cause
why the evidence was not submitted to the ALJ. Due to Fisher's failure to
raise this issue
at the District Court level, he has waived consideration of "good cause"
before this court.
                               III.
     The other argument Fisher raises on appeal is that critical findings
by the ALJ are
not supported by substantial evidence. Fisher hones in on the ALJ's
finding that Fisher's
testimony on the side-effects of his use of prescription medications and
the extent of his
depression was not entirely credible. In framing the questions for the
vocational expert,
the ALJ did take into account Fisher's subjective complaints about side
effects of
medication and his depression because the ALJ asked the vocational expert
a hypothetical
question assuming that the individual experienced some sleepiness and
drowsiness
associated with the use of medication and also experienced moderate
depression with
occasional moderate episodes of anxiety, as Fisher claimed he experienced.
It was from
the vocational expert's response that the ALJ concluded that Fisher
retained the ability to
perform a significant number of specific, unskilled, low-stress sedentary
and light jobs
nationwide. The ALJ based this determination on the objective medical
evidence found
in the record that Fisher was limited to low-stress work. Accordingly, we
cannot hold
that the District Court erred in holding the ALJ's decision was supported
by substantial
evidence.
                               IV.
     For the reasons set forth, we will affirm the decision of the
District Court.
___________________________

TO THE CLERK:

          Please file the foregoing opinion.



                    /s/ Dolores K. Sloviter
                    Circuit Judge