Budzko v. Social Security

[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]
United States Court of Appeals
For the First Circuit
No. 99-1932
ANTHONY BUDZKO,
Plaintiff, Appellant,
v.
SOCIAL SECURITY ADMINISTRATION COMMISSIONER,
Defendant, Appellee.
[Hon. Gene Carter, U.S. District Judge]
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
Before
Selya, Circuit Judge,
Campbell, Senior Circuit Judge,
and Boudin, Circuit Judge.
Francis M. Jackson and Jackson & MacNichol on brief for
appellant.
Jay P. McCloskey, United States Attorney, James M. Moore,
Assistant United States Attorney, and Michael E. Kerpan, Jr.,
Assistant Regional Counsel, Office of the Chief Counsel, Region
I, Social Security Administration, on brief for appellee.
June 26, 2000
Per Curiam. Claimant Anthony Budkzo appeals from
a decision of the district court upholding the determination
of an Administrate Law Judge ("ALJ") that claimant is
ineligible for continuing social security benefits because
substance abuse is material to his disability. See Contract
with America Advancement Act of 1996, Pub. L. 104-121 § 105,
110 Stat. 847, 852-55 (1996). Specifically, the ALJ
concluded that, if claimant's substance abuse problem were
to cease, he would have no severe mental or physical
impairment. Upon review of the briefs and record, we affirm
essentially for the reasons stated by the magistrate judge
in his May 11, 1999 report and recommended decision.
Without attempting to address each of claimant's arguments,
we add the following comments.
The district judge did not err in denying
claimant's motion to remand for the taking of additional
evidence. Pursuant to 42 U.S.C. § 405(g), the court may
order additional evidence to be taken before the
Commissioner "upon a showing that there is new evidence
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which is material and that there is good cause for the
failure to incorporate such evidence into the record in a
prior proceeding." In the instant case, the additional
evidence takes the form of a January 1999 letter, written by
an examining consultant some five months after claimant
initiated suit in the district court, in response to
questions relative to the consultant's 1992 evaluation
before the agency. Passing without deciding the question
whether the 1999 letter is "new" or "material," the evidence
rather clearly founders on the "good cause" requirement.
The mere fact that the date on the report postdates the
agency proceedings does not establish good cause. See Lisa
v. Secretary of Health & Human Servs., 940 F.2d 40, 45 (2d
Cir. 1991). Nor does the fact that claimant did not
anticipate the ALJ's negative ruling. Cf. Key v. Heckler,
754 F.2d 1545, 1551 (9th Cir. 1985) (explaining that the good
cause requirement would be meaningless if every time a
claimant lost before the agency he was free to seek out a
new expert witness who might better support his position).
We are persuaded that on the facts of this
particular case the report of Dr. Hoch, a non-examining
consultant, constitutes substantial evidence to support the
ALJ's conclusion regarding claimant's personality problems.
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Cf. Berrios Lopez v. Secretary of Health & Human Servs., 951
F.2d 427, 431 (1st Cir. 1991) (recognizing that the amount of
weight that can properly be given the conclusion of non-
testifying, non-examining physicians will vary with the
circumstances, including the nature of the illness and the
information provided the expert). Dr. Hoch concluded that
there is no personality disorder outside of alcoholism.
There is every indication that in reaching this conclusion
Dr. Hoch had available to him most, if not all, of the
medical evidence for his review. Claimant's medical records
reveal that a number of clinicians, over the years,
diagnosed solely a substance abuse problem and not also a
personality disorder. Under the circumstances, we reject
claimant's suggestion that Dr. Hoch's conclusion comes "out
of thin air."
Affirmed.
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