[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]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,

,

, 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

(g), the court may

order additional evidence to be taken before the

Commissioner "upon a showing that there is new evidence

-2- 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.,

(2d

Cir. 1991). Nor does the fact that claimant did not

anticipate the ALJ's negative ruling. Cf. Key v. Heckler,

(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.

-3- Cf. Berrios Lopez v. Secretary of Health & Human Servs.,

(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.

-4-