DORSEY v. HECKLER

THORNBERRY, Circuit Judge:

Mary Dorsey, a fifty-two year old woman who claims various physical and psychological ailments have disabled her from pursuing gainful employment, appeals from a district court affirmance of the Secretary of Health and Human Services' (the Secretary's) denial of her disability1 and supplemental security income2 claims under the Social Security Act (the "Act"), and the denial of her Motion to Remand for consideration of new medical evidence regarding mental ailments.3 The decision below is in part affirmed, but will be remanded for consideration by the Secretary of new medical evidence pertaining to Dorsey's mental condition. Finding substantial evidence to support the Secretary's determination with respect to Dorsey's claims arising out of, or related to, her 1975 left leg injury, we affirm those portions of the administrative determination below which are not inconsistent with reconsideration of Dorsey's claims in light of previously unpresented medical evidence of serious mental ailments. We conclude that the magistrate erred in failing to remand Dorsey's case for further consideration by the Secretary since the evidence submitted to the district court was (i) new, (ii) material, and (iii) could not have been incorporated into the record in a prior proceeding. Since a reasonable possibility existed that such evidence would have changed the outcome of the Secretary's determination, we remand.

I. Facts.

Mary Dorsey has a tenth grade education, and worked for approximately eighteen years, until 1971, as a sewing machine operator. She has since been employed as a hospital dietician's assistant and as manager of a bakery.4

In October 1975, Dorsey broke her left leg, which she contends healed badly, leaving her in constant disabling pain in the leg itself, as well as in her hip and back. She also ascribes a "nervous" condition, originally diagnosed as "chronic anxiety" and "depression" by her primary treating physician, Dr. John Lee, at least in part to the injury and its aftermath.

For present purposes, it will suffice to say that Dorsey's claims of physical ailments related to her 1975 leg injury have been subjected to extensive medical and administrative evaluation since the accident. Dorsey initially sought Title II and SSI benefits shortly after the accident, but the applications were denied. On hearing before an administrative law judge (ALJ), she was granted a closed period of disability from October 1975 until June 1977. Dorsey was also awarded SSI benefits from March 18, 1976 through June 1977. This decision was not contested beyond the administrative review level, and is not now before us on appeal. [The Appeals Council denied her request for review on March 5, 1979 and an appeal to federal district court was not taken.] Dorsey again filed applications for Title II benefits and SSI on January 26, 1978. On January 30, 1979, an administrative law judge issued a decision finding that since June 21, 1977, claimant had not been disabled and was not entitled to Title II benefits or SSI. This decision became a final decision on January 30, 1979, after the Appeals Council denied review and claimant did not pursue a court review. Thus, the previous decisions, granting claimant a closed period of benefits and denying benefits from June 21, 1977 to January 30, 1979, became final. Since the previous decisions were not reopened, these decisions are final and are not now before us on appeal.

The present proceeding was commenced November 9, 1979, when Dorsey filed new applications for disability insurance and supplemental security income benefits. These applications were denied February 15, 1980, and Dorsey sought and obtained de novo review and a hearing before an ALJ on May 2, 1980. On July 9, 1980, following a consultative examination of Dorsey by an orthopedic surgeon performed at the ALJ's request, a decision was entered denying Dorsey's claims. Upon consideration of conflicting medical evidence from Dr. John Lee (a family practice specialist and the plaintiff's primary treating physician), Dr. James Hughs (Chief of Orthopedic Surgery at Mississippi Medical Center, also named by Dorsey as her doctor), Dr. W. Lamar Wilkerson (a chiropractor, not in the 1979 American Medical Directory), and Dr. John Gassaway (the orthopedic surgeon retained at the ALJ's request), as well as testimony by Dorsey herself, and the record from prior proceedings, the ALJ determined that she was not under a "disability" within the meaning of the Social Security Act since "there were no objective findings presented that would prevent her from returning to the type of work that she performed as a dietician's assistant."5

With respect to Dorsey's claim of mental disability, the ALJ observed the paucity of evidence in the record before him providing support for this claim:

Dorsey requested a review of the ALJ's decision on July 16, 1980. This was denied by the Appeals Council on August 11, 1980, either immediately before or immediately after her release from St. Dominic Hospital in Jackson, Mississippi, where she had been admitted on July 30, 1980, complaining of hallucinations, anxiety, and depression.6

On August 29, 1980 (two and a half weeks after the Appeals Council decision, and at most, twenty days after Dorsey's release from her hospitalization), an action was brought in federal district court appealing the Appeals Council determination. In a letter dated September 3, 1980, and addressed to the Mississippi State Disability Determination Services in Jackson, Dorsey's treating physician, Dr. Lee, outlined the August hospitalization and stated that Dorsey was now at home under his care, and totally disabled. On the basis of Dr. Lee's diagnosis, and the August hospitalization, Dorsey's counsel moved in November 1980 to have the entire case remanded to the Secretary for consideration of the new medical evidence concerning Dorsey's psychological condition. Hospital records and Dr. Lee's letter were appended to the motion. No answer was ever filed by the Secretary, and the motion was never scheduled for hearing.

The record contains no explanation of the lengthy delay before the magistrate ruled upon Dorsey's appeal filed in district court on August 29, 1980 and her motion to remand filed on November 17, 1980. More than a year and a half passed before the motion to remand was considered at all, and then only in the context of the magistrate's opinion and order. The government first filed an answer in December 1980, and moved in March 1981 for a summary affirmance of the Secretary's decision. Dorsey renewed her motion to remand on April 23, 1981, appending an additional letter from Dr. Lee (dated April 15, 1981, and stating that her disabling mental condition had not improved). No opposition was filed by the government, and the motion was never scheduled for hearing. On May 17, 1982, more than one year later, the magistrate issued an opinion and order denying Dorsey's appeal and motion to remand.

In its opinion, the magistrate denied Dorsey's motion to remand in a single paragraph, suggesting that "the additional medical evidence should have been presented to the Appeals Council pursuant to Regulation 404.970."7 In support of his denial, the magistrate cited 42 U.S.C. § 405(g), and our recent decision in Chaney v. Schweiker, 659 F.2d 676 (5th Cir.1981), concluding without further explanation that "there is no new material evidence and good cause for remanding this action...."

II. Issues.

On appeal, Dorsey contends (1) that the ALJ gave undue emphasis to the opinions of Dr. Gassaway (the orthopedic surgeon who examined Dorsey at the ALJ's request) and insufficient consideration to subjective evidence of pain and disability; (2) that the magistrate and Appeals Council erred by uncritically affirming, or "rubber-stamping," the ALJ's decision; (3) that testimony by a vocational expert was necessary to establish what jobs in the national economy Dorsey could perform; and (4) that the magistrate erred by failing to remand the case to the Secretary for consideration of new material evidence of disability.

III. Analysis.

A. General Legal Principles Applicable to Determinations by the Secretary

In reviewing decisions by the Secretary, the scope of this court's review is limited to determining whether substantial evidence exists in the record to support the decision that the plaintiff is not under a "disability" as defined by the Social Security Act. Olson v. Schweiker, 663 F.2d 593, 595 (5th Cir.1981). The appellate court must scrutinize the entire record to determine whether such evidence does exist, Millet v. Schweiker, 662 F.2d 1199, 1201 (5th Cir.1981), but it may not reweigh the evidence or substitute its judgment for that of the Secretary. Perez v. Schweiker, 653 F.2d 997, 999 (5th Cir.1981). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support the conclusion. Id., 653 F.2d at 999; Anderson v. Schweiker, 651 F.2d 306, 308 (5th Cir.1981).

One seeking a period of disability or disability insurance benefits must show that he is unable to "engage in any substantial gainful activity by reason of any medical determinable physical or mental impairment which can be expected to result in death or which has lasted or which can be expected to last for a continuous period of not less than twelve months...." 42 U.S.C. § 423(d)(1)(A). The burden is upon the claimant to demonstrate that he is no longer capable of performing his past work. Wilkinson v. Schweiker, 640 F.2d 743, 744 (5th Cir.1981). If the claimant carries this burden, the burden then shifts to the Secretary to show that the claimant is capable of engaging in some other type of substantial gainful employment. Ferguson v. Schweiker, 641 F.2d 243, 246 (5th Cir.1981); Rivers v. Schweiker, 684 F.2d 1144, 1151 (5th Cir.1982); Millet v. Schweiker, 662 F.2d at 1201; Perez v. Schweiker, 653 F.2d at 999.

We note further that in a case like this one where an appeal is taken from a summary determination in favor of the Secretary, the review function of this court is akin to that of the district court. Our review must be made independently and without the assumption that the district court acted correctly. Olson v. Schweiker, 663 F.2d at 595; McDaniel v. Harris, 639 F.2d 1386, 1388 (5th Cir.1981).

B. Substantial Evidence Supported the Determinations of the Secretary

(1) The ALJ's Evaluation of Subjective Evidence of Pain and of Conflicting Medical Testimony

In reviewing the ALJ's evaluation of Dorsey's allegedly disabling pain in the face of conflicting medical testimony, we reiterate that it is not necessary that we reach the same conclusion ourselves. Ordinarily, substantial weight must be given to the opinion, diagnosis and medical evidence of the claimant's treating physician. Perez v. Schweiker, 653 F.2d at 1001. It is also well established that pain alone can be disabling, even when its existence is unsupported by objective evidence. Wiggins v. Schweiker, 679 F.2d 1387, 1390 (11th Cir.1982); Benson v. Schweiker, 652 F.2d 406, 408-09 (5th Cir.1981). Viewing the record before us in light of these principles, we cannot say that the ALJ's determination in resolving the conflicting evidence was not supported by substantial evidence. The ALJ carefully considered the testimony of all four doctors:

Similarly, the ALJ thoughtfully considered the effect to be given Dorsey's testimony that she continued to suffer constant and severely disabling pain. Finding that Dorsey's contentions were either contradicted or largely unsupported by medical and other evidence (including his own observation of the witness throughout the course of the hearings), the ALJ made every effort to give Dorsey's testimony due weight in his determination:

The ALJ concluded that Dorsey was capable of performing her previous work as a dietician's assistant, and was therefore not disabled within the meaning of the Social Security Act. References to 20 CFR §§ 404.1520(e) and 416.920(e) indicate that although the ALJ believed Dorsey suffered impairments, he nonetheless concluded that they were insufficient to prevent her from meeting the physical and mental demands of her past relevant work.8

(2) Appellate Review of the ALJ Determination Below

Dorsey next contends that the appellate proceedings below "rubber-stamped" the ALJ's decision. Accepting Dorsey's view that the findings of the ALJ may not be blindly accepted, she has nevertheless failed to substantiate her claim that the Appeals Council and the magistrate did in fact do so.

(3) The Need to Show Dorsey's Capacity for "Other Work"

Since we conclude that substantial evidence existed to support the ALJ's conclusion that Dorsey was not disabled, and was capable of returning to past relevant work, the Secretary was under no obligation to demonstrate, with or without expert vocational testimony, Dorsey's capacity to perform any other work. See 20 CFR §§ 404.1520 and 416.920. See Rivers v. Schweiker, supra, 684 F.2d at 1154-55 (even where inability to engage in former employment is demonstrated, direct vocational testimony may not be necessary).

C. The Magistrate's Failure to Remand for Consideration of New Evidence Regarding Dorsey's Mental Condition.

Dorsey contends that her August 1980 hospitalizations and treating physician's diagnoses of complete mental disability (made in September 1980, and then again in April 1981) warranted remand to the Secretary for further consideration of his determination in light of the new evidence pursuant to 42 U.S.C. § 405(g). We agree.

On June 9, 1980, partly in an effort to stem the growing tide of unjustified federal court ordered remands, Congress amended 42 U.S.C. § 405(g). S.Rep. No. 408, 96th Cong., 2d Sess. 58-59, reprinted in 1980 U.S.Code Cong. & Ad.News 1277, 1336-37. The relaxed "good cause" standard for remand of disability benefits cases was replaced by the present requirement that evidence be (1) "new," (2) "material," and (3) that good cause be shown for the failure to incorporate such evidence into the record in a prior proceeding. In evaluating the materiality requirement under the 1980 amendment this court has held that it is no longer enough that the new evidence be relevant and probative, since much relevant and probative evidence is "of limited value and insufficient to justify the administrative costs and delay of a new hearing." Chaney v. Schweiker, 659 F.2d at 679. Rather, we have concluded that remand is justified only where there is a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination had it been before him. Id.9

Nevertheless, "[a]lthough § 405(g) of the Social Security Act limits the scope of this court's review of the Secretary's final decision, this provision is not as restrictive as a literal reading might initially suggest." Essig v. Secretary of Health & Human Services, 531 F.Supp. 55, 57 (E.D.N.Y.1981). This Court has repeatedly observed that "[t]he Social Security Act is to be broadly construed and liberally applied." Williams v. Califano, 590 F.2d 1332, 1334 (5th Cir.1979) (quoting Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir.1975)).10 See also Parks v. Harris, 614 F.2d 83, 84-85 (5th Cir.1980); Taylor v. Harris, 505 F.Supp. 153, 154 (E.D.Tex.1981).

Consistent with this view of the Act, a final decision by the Secretary will be upheld by this court if it is supported by substantial evidence "on the record as a whole." Cutler, 516 F.2d at 1285. See also Millet v. Schweiker, 662 F.2d at 1201 (duty to scrutinize record in its entirety). It is clear, therefore, that where

Essig, 531 F.Supp. at 57 (citations omitted) (emphasis added).

The regulations promulgated by the Secretary under the Act emphasize this need to examine the totality of the evidence. See 20 C.F.R. §§ 404.1520, 416.920 ("[w]e consider all material facts to determine whether you are disabled"). See also Hogan v. Schweiker, 532 F.Supp. 639, 645 (D.Colo.1982) (case remanded where ALJ failed to give full consideration to all relevant facts in the case as required by the regulations).

The need to consider all the available evidence in the record is particularly strong when a claimant has two or more impairments. Thus, under the regulations controlling the evaluation of disability, the Secretary "can combine unrelated impairments to see if together they are severe enough to keep [the claimant] from doing substantial gainful activity." 20 C.F.R. §§ 404.1522, 416.922. The courts have strictly construed these regulations in the claimant's favor. "Since the Secretary must evaluate the evidence in relation to the particular individual seeking benefits, where there are several illnesses suffered simultaneously by the claimant, the combined effect of the impairment must be considered before the Secretary denies the payment of disability benefits." Bittel v. Richardson, 441 F.2d 1193, 1195 (3rd Cir.1971) (citing Dillon v. Celebrezze, 345 F.2d 753, 755-57 (5th Cir.1965)) (emphasis added). See also Wiggins v. Schweiker, 679 F.2d 1387, 1392 (11th Cir.1982); Brenem v. Harris, 621 F.2d 688, 690 (5th Cir.1980); Champion v. Califano, 440 F.Supp. 1014, 1018 (D.D.C.1977) ("combined effects must be considered for the Act seeks to administer relief to the whole man and not simply to serve as a vehicle for the separate clinical analysis of individual ailments.") (emphasis added). Accord Simms v. Schweiker, 552 F.Supp. 415, 418 (E.D.Pa.1982).

Finally, considerations of fairness and efficiency may enter into a decision whether to remand a case to the Secretary in the face of new medical evidence. Thus, in Ferguson v. Schweiker, 641 F.2d 243 (5th Cir.1981), this court stated: "We ... find that considerations of fairness and efficiency, together with the rule that impairments must be considered in toto, require the Secretary to consider all the evidence — including evidence of events occurring after the initial administrative hearing — in deciding the case on remand." Id. at 250 n. 9 (emphasis added).

With these principles in mind, we now turn to the facts before us. Since there can be little dispute that the evidence Dorsey sought to present was both new and excusably delayed (fulfilling the first and third conditions of the new standard, we consider these elements first.

We begin by noting that the ALJ did not explicitly find that Dorsey was mentally sound, but that the scanty evidence in the record failed to substantiate her contention that she was mentally unsound and therefore disabled. On July 9, 1980, the time of the ALJ's decision, one would have been hard-pressed to conclude otherwise. Since the onset of Dorsey's debilitating mental symptoms and her subsequent hospitalization only occurred after this date, during the pendency of the Appeals Council review, there can be little question that such evidence was "new" within the meaning of 42 U.S.C. § 405(g).

The Appeals Council's review, the onset symptoms, and Dorsey's hospitalization all appear to have occurred at about the same time. Dorsey was released from the hospital on August 9, 1980 at the very earliest, just two days before the Appeals Council handed down its decision. We have little difficulty finding that this limited opportunity to present the new evidence to the Appeals Council fulfills the good cause requirement for failure to incorporate the evidence in the prior proceeding under Section 405(g). Since no more (and probably less) than three weeks passed between Dorsey's release from the hospital and the initiation of her district court action, the record indicates that she made every effort to present the new medical evidence at the earliest possible opportunity.

The Secretary urges us to affirm by arguing that even if the ALJ had considered the new evidence, he would still have denied Dorsey benefits under her current application, that is, that the new evidence is not material as that term is defined in Chaney. First, the Secretary contends that Dorsey is not entitled to SSI benefits because the new evidence regarding her mental condition was merely cumulative, and could not furnish a basis for a remand. The Secretary further argues that Dorsey is not entitled to Title II benefits because she has failed to demonstrate a disability between January and December of 1979.11

Because Dorsey's Title II and Title XVI claims for benefits in light of the new evidence are based on separate periods of eligibility, and therefore on potentially separate evidence, we now must examine these claims individually.

(a) Title XVI benefits

In contrast to eligibility for benefits under Title II, see part b infra, there is no eligibility period requirement for the receipt of SSI benefits. The regulations provide that an application for SSI benefits remains effective from the date of application to the date of final decision by the Secretary, or the date of court review, whichever is later:

20 C.F.R. § 416.330 (emphasis added). A determination of disability is clearly one of the eligibility requirements for SSI benefits. 20 C.F.R. § 416.202. Accordingly, we must consider whether there was evidence in the record at any point between July 9, 1980 (the date of the ALJ's decision) and May 17, 1982 (the date the magistrate handed down his opinion and order denying Dorsey's motion to remand) supporting the magistrate's finding that there is no new material evidence and good cause for remand.12

A careful review of the evidence, especially the new evidence submitted after the ALJ's decision, indicates that the magistrate's opinion and order are incorrect. The new evidence, consisting of reports by Dorsey's treating physician, Dr. Lee, to the effect that Dorsey was totally disabled and at home under his care, and the report by Dr. Ruff stating that Dorsey was an alcoholic and "almost certainly had DT's [delirium tremens, or hallucinations] recently and still may have them," persuade us that there is a reasonable possibility that the Secretary's determination would have been different had this evidence been before him. As noted above, "[i]t is well settled that ... the opinion, diagnosis and medical evidence of the treating physician, especially when the consultation has been over a considerable length of time, should be accorded considerable weight." Perez v. Schweiker, 653 F.2d 997, 1001 (5th Cir.1981) (citations omitted). See also Wiggins v. Schweiker, 679 F.2d 1387, 1389-90 (5th Cir.1982). The new medical information bears directly on Dorsey's claim of mental impairment, evidence of which was absent from the administrative proceedings. Moreover, it is clear that the ALJ did not have an opportunity to assess the cumulative or combined effect of Dorsey's impairments. Viewed in this light, we conclude that this new evidence, highly relevant to an evaluation of disability might well have led the ALJ to reach a different conclusion on Dorsey's claim. It follows that when the magistrate was presented with this new evidence, he should have remanded the matter to the Secretary for reconsideration.

The Secretary relies on Barnard v. Secretary of Health and Human Services, 515 F.Supp. 690, 694 (D.Md.1981), for its assertion that the new evidence, indicating a change or a worsening in Dorsey's condition, cannot serve as a basis for remand under the 1980 amendment to section 405(g) because it is cumulative of evidence already available to the ALJ. Barnard, however, involved a situation markedly different from the one before us. In that case, the district court found that the ALJ "had available medical reports ... [which] were reasonably contemporaneous with the disability determination." 515 F.Supp. at 694. In our case, on the other hand, the ALJ determined that Dorsey's claims of mental disability were merely unsupported by the available evidence. There was simply not sufficient evidence in the record at the time the ALJ made his determinations for him to find that Dorsey was not mentally sound. The relevant evidence on this point only became available in July and August of 1980.13

We conclude that the new evidence is not cumulative of prior evidence already in the record. We therefore remand this case to the ALJ so that he may determine on the basis of both the new and the available evidence in the record the date on which Dorsey's physical and mental impairments, singly or in combination, precluded her from engaging in substantial gainful employment. The ALJ may also receive such additional evidence as may be relevant to Dorsey's mental condition as a basis for forwarding benefits under the present application.14

(b) Title II Benefits

As mentioned earlier, the Secretary contends that Dorsey's eligibility for Title II benefits, as determined by her earnings, expired on December 31, 1979. It is clear that on July 9, 1980, the date the ALJ handed down its decision, the evidence in the record failed to substantiate Dorsey's claim that she was mentally unsound. Moreover, the only evidence of mental unsoundness which could support a finding of disability consists of Dorsey's condition after July 9, 1980. Therefore, if the Secretary's determination that Dorsey's eligibility expired on December 31, 1979, is correct, there can be no doubt that Dorsey is not entitled to Title II benefits based on her current application, because she has not demonstrated that she was under a disability between January 30, 1979 and December 31, 1979.

Our review of the record shows that there were, in effect, two determinations by an ALJ regarding Dorsey's eligibility for Title II benefits. In a decision dated January 30, 1979, the ALJ found that Dorsey met the special earnings requirements of the Act at least until September 30, 1982. However, in a subsequent decision dated July 9, 1980, the ALJ found that Dorsey last met the earnings requirements of the Act on December 31, 1979.15

We have found no document in the record explaining this discrepancy. During oral argument, the Secretary stated that "[the discrepancy was due to an] error on the face of the record, and may be changed by the Secretary pursuant to the regulations — it was. The correct date is December 31, 1979." The regulations governing the determination of insured status under Title II are found in 20 C.F.R. §§ 404.130 et seq. Ordinarily,

42 U.S.C.A. § 405(h) (West Supp.1982). The review referred to in section 405(h) as "hereinafter provided" is that described in section 405(g) of the Act. A determination becomes the Secretary's "final decision" when the claimant either exhausts or abandons his claim. 20 C.F.R. § 404.900 et seq. Nonetheless, the Secretary may reopen a claim under §§ 404.987-.988 under various conditions. For example, a case may be reopened "at any time" to correct a clerical error. 20 C.F.R. § 404.988(c). Also, the Secretary may reopen for "good cause" within four years. Section 404.988. A clerical error in the computation of benefits is deemed good cause. Section 404.989(a)(2). However, there can be no good cause if the only reason for reopening a claim is a change in the legal interpretation or administrative ruling upon which a decision was based. Section 404.989(b). We have not been able to ascertain from the record the reason for the Secretary's decision to change Dorsey's period of eligibility. Given our disposition of the SSI claim, we believe that the ALJ should resolve this issue and document it appropriately. This resolution would not be unduly burdensome for the ALJ, would clarify an apparent inconsistency in the record, and would be just in view of its importance to Dorsey's eligibility for Title II benefits.

IV. Conclusion

For the reasons mentioned above, we REMAND this case to the Secretary for proceedings consistent with this opinion.