Lopez-Cardona v. Secretary of Health and Human Services, LOPEZ-CARDON

• Decision Date: 13 November 1984
• Docket Number: P,LOPEZ-CARDON,No. 84-1420,84-1420
• Citation: 747 F.2d 1081
• Parties: , Unempl.Ins.Rep. CCH 15,596 Miguellaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 1081

747 F.2d 1081

7 Soc.Sec.Rep.Ser. 226, Unempl.Ins.Rep. CCH 15,596

Miguel LOPEZ-CARDONA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 84-1420.

United States Court of Appeals First Circuit.

Submitted Sept. 14, 1984.

Decided Nov. 13, 1984.

Salvador Medina de la Cruz, Rio Piedras, P.R., on brief for plaintiff, appellant.

Richard K. Willard, Acting Asst. Atty. Gen., Washington, D.C., Daniel F. Lopez Romo, U.S. Atty., Hato Rey, P.R., and Nathan Kobin, Atty., Dept. of Health and Human Services, Social Security Division, Washington, D.C., on brief for defendant, appellee.

Before CAMPBELL, Chief Judge, COFFIN and BOWNES, Circuit Judges.

PER CURIAM.

Claimant, born in 1939 and second grade educated, bases disability on a physical disorder (back, leg, neck pain) and a mental disorder. Claimant's private psychiatrist submitted three reports describing claimant's limitations and claimant testified to pain and nervousness. The Administrative Law Judge (ALJ) noted claimant trembled at the hearing, exhibited "an obvious physical discomfort," and "appeared in mental distress." He found "claimant's demeanor and testimony" "fully credible" and concluded claimant was disabled due to a severe mental condition. The Appeals Council on its own initiative reviewed the case and reversed, finding no severe impairment. This became the final decision of the Secretary. Since the Appeals Council disposed of the case at the second stage of its sequential evaluation process, see Goodermote v. Secretary of Health and Human Services, 690 F.2d 5, 6-7 (1st Cir.1982), it did not consider vocational factors.

Claimant's principal arguments are that (1) the Appeals Council's own regulations precluded it from reviewing the ALJ's decision and (2) the Appeals Council decision is not supported by substantial evidence.

1. Whether the Appeals Council was authorized to review the ALJ's decision.

Plaintiff argues the Appeals Council violated its own regulations by initiating review. The pertinent regulations are 20 C.F.R. Secs. 404.969, 404.970, which read, in material part, as follows:

"Sec. 404.969 Appeals Council initiates review.

Anytime within 60 days after the date of a hearing decision or dismissal, the Appeals Council itself may decide to review the action that was taken."

"Sec. 404.970 Cases the Appeals Council will review.

(a) The Appeals Council will review a case if--

(1) There appears to be an abuse of discretion by the administrative law judge;

(2) There is an error of law;

(3) The action, findings or conclusions of the administrative law judge are not supported by substantial evidence; or

(4) There is a broad policy or procedural issue that may affect the general public interest."

The Appeals Council referred to Sec. 404.970(a)(3), lack of substantial evidence. Plaintiff argues that the ALJ's decision was not unsupported by substantial evidence--plaintiff's testimony as well as one of his doctor's evaluations supported it--and that therefore the Appeals Council was not authorized to review the decision.

While plaintiff's position has found some support in dicta, Wood v. Schweiker, 537 F.Supp. 660, 667 (D.S.C.1982) (suggesting Appeals Council's power to review is limited to the four situations enumerated in 20 C.F.R. Sec. 404.970); see also Bohr v. Schweiker, 565 F.Supp. 610, 611 (E.D.Penn.1983), the eighth circuit, as well as a district court, have rejected it. Baker v. Heckler, 730 F.2d 1147 (8th Cir.1984); Taylor v. Heckler, 576 F.Supp. 1172, 1174 (N.D.Calif.1983). The latter courts have given deference to the Secretary's construction of the regulations, have noted that a restrictive interpretation of "own motion" review could interfere with the Secretary's monitoring of the department and the administration of claims, and have concluded that 20 C.F.R. Sec. 404.970's enumeration of situations when the Appeals Council "will" review a case is not exclusive of all the situations when, under 20 C.F.R. Sec. 404.969, the Appeals Council "may" undertake further review.

Generally, in an intra-agency appeal, the agency has all the powers it would have had in making the initial decision unless it limits the issues by notice or regulation. See 3 Davis Administrative Law Treatise Sec. 14:19 (1980). Clearer language is needed before we would find an agency meant to give up its powers, and thus we agree with the eighth circuit's interpretation of the regulations. Hence, even though the ALJ's decision was supported by substantial...