Unpublished Disposition, 935 F.2d 274 (9th Cir. 1988)

MEMORANDUM^** 

Larry McNally appeals the magistrate's decision affirming the denial of his application for disability benefits by the Secretary of Health and Human Services (Secretary). We affirm.

McNally sustained an injury to his left hip and pelvis in an automobile accident in 1973. While working as a bus driver his back was injured in 1977 and 1979. McNally has not been employed since February 9, 1979. He claims to be disabled from this date to the present.

On October 27, 1986, McNally filed his most recent application for benefits alleging that he became disabled on February 9, 1979. He pursued this application to a hearing before an ALJ. The ALJ determined that McNally was insured through September 30,1984, and thus potentially eligible to receive disability benefits based on his condition prior to that date. The ALJ determined that McNally was not disabled and thus not eligible for benefits. On October 28, 1988, the Appeals Council declined to review McNally's case.

McNally sought judicial review of the Secretary's adverse determination in district court. By consent of the parties the case was tried before a magistrate. The magistrate granted summary judgment in favor of the Secretary. On appeal to this court McNally advances numerous arguments for reversal and remand.

A. McNally's Current Application for Benefits.

1. Validity of the Secretary's Determination.

McNally claims that the Secretary's denial of his third application for disability benefits should be reversed or remanded for further factual findings because of several alleged deficiencies in the proceedings before the ALJ and in the ALJ's decision. The Secretary's decision to deny benefits will be disturbed only when it is not supported by substantial evidence or if it is based on legal error. Bates v. Sullivan, 894 F.2d 1059, 1061 (9th Cir. 1990). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). We must review the record as a whole and consider both adverse and supporting evidence. Bates, 894 F.2d at 1061.

We have reviewed the record and find McNally's claims without merit. The decision of the Secretary denying McNally's claim is supported by substantial evidence and is not invalid because of any claimed procedural irregularities.

2. Consideration of New Evidence.

McNally asks the panel to remand this case to the Secretary for consideration of new evidence. 42 U.S.C. § 405(g) provides that remand is appropriate only upon a showing that the new evidence is "material" and that there is "good cause" for the failure to introduce the evidence in a prior proceeding.

McNally's new evidence consists of an assessment of his mental condition prior to September 30, 1984 by Dr. Roscoe B. Martin, an assessment of his mental condition prior to September 30, 1984 by Dr. W.J. Morrissey, and a declaration by McNally regarding his mental and physical condition.

McNally states that this evidence did not exist at any prior point in these proceedings. However, he fails to provide any explanation why this information was not solicited previously. McNally has not shown that good cause exists for his failure to solicit and introduce this evidence at an earlier stage in this proceeding. Clem v. Sullivan, 894 F.2d 328, 332-33 (9th Cir. 1990) (no remand because good cause for failure to procure evidence earlier not shown). We decline to remand this case to the Secretary for consideration of new evidence.

B. Reopening of McNally's Prior Applications.

McNally's most recent application for disability insurance payments listed February 9, 1979 as the time when he became unable to work. The ALJ reviewing this application noted McNally's two previous applications for disability insurance benefits. The first application was denied by an ALJ on May 13, 1980. The second application was denied on July 28, 1982 at the initial application stage. In his denial, of McNally's third and most recent application for disability insurance payments, the ALJ refused to consider McNally's claims for benefits based on the period prior to July 28, 1982. He held that these claims were precluded because the issue of McNally's eligibility prior to this date was decided in the prior applications. The ALJ declined to reopen these claims.

McNally admits that the Secretary's refusal (here acting through the ALJ) to reopen a case is generally not subject to judicial review. Califano v. Sanders, 430 U.S. 99 (1977). However, on appeal, McNally argues for the first time that the ALJ's refusal to reopen his previous applications violates the due process clause of the fifth amendment.

Specifically, McNally argues that, in light of his mental state, the May 13, 1980 and the July 28, 1982 notices informing him that his applications for benefits were denied did not clearly indicate that if no request for reconsideration was made, the denial was final. Thus he says it was unfair for the ALJ to refuse to reopen these claims. This court has jurisdiction to review McNally's claim that he was denied due process. Id. at 109; Gonzalez v. Sullivan, 914 F.2d 1197, 1202-03 (1990); Panages v. Bowen, 871 F.2d 91, 93 (1989).

McNally did not raise this argument in the district court. (Gonzalez was not filed until after McNally's case was concluded in the district court.) Generally, the court of appeals will not consider arguments not raised in the district court. Copeland v. Bowen, 861 F.2d 536, 540 (9th Cir. 1988). Departure from this rule may sometimes be appropriate, but no facts have been presented in this case to justify a reversal of the district court's judgment.

Our review of the record indicates that McNally's condition has grown progressively worse from 1979 to the present. We found in part A.1. of this memorandum that the Secretary's decision that McNally is not entitled to disability benefits based on an evaluation of his status from July 28, 1982 to September 30, 1984 is supported by substantial evidence. Thus even if we were to remand McNally's tardy due process claims for factual findings, and even if the court on remand were to find that McNally's two prior notices denying his claims were defective, there is no reason to believe that McNally would be entitled to disability benefits on the basis of his condition prior to July 28, 1982. Consequently, we find that the goal of fairness to the litigants would not be significantly advanced by our consideration of McNally's due process claims. Principles of judicial economy counsel against our considering these claims raised for the first time on appeal. See United States v. Whitten, 706 F.2d 1000, 1012 (9th Cir. 1983), cert. denied, 465 U.S. 1100 (1984).

The Secretary's decision that McNally is not eligible for disability benefits is AFFIRMED.