Wilson v. Apfel

• Decision Date: 15 March 1999
• Docket Number: No. 98-2684,98-2684
• Citation: 179 F.3d 1276
• Parties: Thelma WILSON, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee. Non-Argument Calendar.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1276

179 F.3d 1276

Thelma WILSON, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee.

No. 98-2684

Non-Argument Calendar.

United States Court of Appeals Eleventh Circuit.

March 15, 1999.

Michael Alan Steinberg, Tampa, FL, for Plaintiff-Appellant.

Marilynn B. Kelm, Mary Rice, Asst. Regional Counsel, Social Security Adm., Office of Gen. Counsel, Region IV, Atlanta, GA, for Defendant-Appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before TJOFLAT, ANDERSON and EDMONDSON, Circuit Judges.

PER CURIAM:

Thelma Wilson, acting on behalf of her infant daughter Anastasia El-Amin, appeals the Commissioner of Social Security's denial of supplemental security income benefits to Anastasia. Anastasia suffers from sickle cell anemia, which she claims entitles her to receive benefits. However, the Social Security Administration's administrative law judge ("ALJ") found that Anastasia did not suffer from a "severe impairment" as is necessary to qualify for supplemental security income benefits under the Social Security Act. The Social Security Administration's Appeals Council let the ALJ's ruling stand as the final decision. The district court, adopting the report and recommendation of a magistrate judge, affirmed the ALJ's ruling.

The law that controls whether a child under 18 is disabled changed significantly in the period after the ALJ rendered his decision. Personal Responsibility and Work Opportunity Reconciliation Act, Pub.L. No. 104-193, § 211, 110 Stat. 2105, 2188 (1996). The intervening legislation specifically provides that it applies to cases that had not been "finally adjudicated" at the time of enactment, which includes the instant case because it awaited judicial review at that time. Id. § 211(d)(1)(A)(I), 110 Stat. at 2190. However, it is readily apparent that this change of law does not alter the outcome in this case. The new law tightens rather than expands the definition of "disabled" with respect to children under 18, with the result that any child considered not disabled under the old law is necessarily considered not disabled under the new law as well. ¹ Nelson v. Apfel, 131 F.3d 1228, 1234 (7th Cir.1997); Jamerson v. Chater, 112 F.3d 1064, 1065-66 (9th Cir.1997). Therefore, if the ALJ's findings in the instant case were supported by substantial evidence his determination that Anastasia was not disabled is controlling even under the new law.

Wilson appeals on three issues: (I) whether the ALJ erred in determining that Anastasia did not have a severe impairment; (ii) whether the ALJ erred by failing to develop the record fully and fairly; and (iii) whether the Commissioner caused Anastasia prejudice by not making Wilson aware of new and material evidence until after the district court's decision. On the first issue, our review is limited to whether the ALJ's decision is supported by substantial evidence. 42 U.S.C. § 405(g); Martin v. Sullivan, 894 F.2d 1520, 1529 (11th Cir.1990). We agree with the district court and magistrate judge that it was so supported. A severe impairment is one that is more than "a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations." 20 C.F.R. § 416.924(c). ² Anastasia undoubtedly suffered from sickle cell anemia. However, substantial medical evidence in the record supports a conclusion that she manifested few symptoms of the disease and that her cognitive, social, and motor development were normal or close to normal during the relevant time period. Substantial evidence also supports the ALJ's finding that Anastasia's occasional episodes of hospitalization did not demonstrate a "severe impairment."

On the second issue, Wilson is correct that the ALJ has a duty to develop the record fully and fairly. Graham v. Apfel, 129 F.3d 1420, 1422-23 (11th Cir.1997). But we cannot agree with her that the ALJ was obligated to seek independent, additional expert medical testimony before concluding that Anastasia's impairment was not severe. On the contrary, the record, which included the opinions of several physicians including that of Dr. Cameron Tebbi who treated Anastasia, was sufficient for a decision and additional expert testimony was unnecessary.

Third, Wilson argues that new evidence which came into her possession after the district court's decision requires reconsideration of the denial of benefits. This claim is made for the first time on appeal, as it involves information not previously known by Wilson. The new evidence consists of an Office of Disability Determinations form completed by Dr. Teresa Felten on March 29, 1996, indicating that Anastasia met Listings 107.05(A) and (D), either of which would entitle her to benefits pursuant to the third step of the sequential analysis. The new evidence is not properly before the court as it is merely attached as an appendix to Wilson's brief. ³ See Cherry v. Heckler, 760 F.2d 1186, 1193 (11th Cir.1985) (court's review limited to the certified record). Moreover, this evidence is irrelevant. We review the decision of the ALJ as to whether the claimant was entitled to benefits during a specific period of time, which period was necessarily prior to the date of the ALJ's decision. ⁴ The ALJ's decision in this case was rendered on March 28, 1995. While Dr. Felten's opinion one year later may be relevant to whether a deterioration in Anastasia's condition subsequently entitled her to benefits, it is simply not probative of any issue in this case. ⁵

For the foregoing reasons, the judgment of the district court affirming the...