Caulder v. Bowen

• Decision Date: 17 June 1986
• Docket Number: No. 85-7349,85-7349
• Citation: 791 F.2d 872
• Parties: , Unempl.Ins.Rep. CCH 16,830 L.G. CAULDER, Jr., Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 872

791 F.2d 872

13 Soc.Sec.Rep.Ser. 397, Unempl.Ins.Rep. CCH 16,830

L.G. CAULDER, Jr., Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 85-7349.

United States Court of Appeals, Eleventh Circuit.

June 17, 1986.

Willie V. Miller, Ann Patterson Leonard, Fort Oglethorpe, Ga., for plaintiff-appellant.

Frank W. Donaldson, U.S. Atty., Mary P. Thornton, Birmingham, Ala., for defendant-appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before KRAVITCH and HATCHETT, Circuit Judges, and MORGAN, Senior Circuit Judge.

KRAVITCH, Circuit Judge:

L.G. Caulder, Jr. appeals from a district court order affirming the denial of his claim to disability benefits by the Secretary of Health and Human Services (the "Secretary"). We reverse the district court and remand to that court with instructions to remand the case to the Secretary for consideration of the new medical evidence which Caulder proffered to the district court. This court has jurisdiction to review the district court's decision under 28 U.S.C. Sec. 1291.

I. BACKGROUND OF CLAIM AND ADMINISTRATIVE PROCEEDINGS

L.G. Caulder, Jr. filed a claim on July 1, 1983, for a period of disability and for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. Secs. 416(i) and 423, alleging an onset date of April, 1983. Caulder claims that he is disabled due to advanced emphysema and back and leg problems.

Caulder proceeded through the administrative process, culminating in a hearing before an Administrative Law Judge ("ALJ") on March 22, 1984. Caulder and his wife testified that he no longer works, experiences shortness of breath, cannot perform household chores, and can walk only 100 to 200 yards before stopping to rest. Caulder's work history includes experience as a heavy equipment operator, a supervisor in the construction industry, a printing pressman, and a service station manager. He completed the eighth grade of school. According to Caulder, he stepped down from a supervisory position to operator work in 1978-79, taking a 50% pay cut on the advice of his doctor due to emphysema. During 1980, he did not work for three quarters because of illness, but returned to work when his brother gave him a job in which, according to Caulder, "he did not actually have to earn his way." In May 1981, Caulder was hospitalized for chronic obstructive pulmonary disease (COPD). Caulder asserts that he ceased working altogether in April, 1983, due to advanced emphysema and back and leg problems. He filed his claim for a period of disability and disability insurance benefits on July 1, 1983. Caulder was 52 years old at the time of the hearing.

The medical evidence presented at the hearing included reports from physicians concerning both Caulder's breathing problems and his back and leg complaints. Because the decision to remand this case is based in part on the new medical evidence's relevance to and affect on the ALJ's findings, we set forth a summary of the various medical reports that were part of the administrative record.

Dr. Elmore, Caulder's treating physician, provided reports dated July 16 and August 19, 1983, which indicate that he first saw Caulder in January, 1981, and was currently seeing him approximately every three months. Dr. Elmore described Caulder as so short of breath that he could not tolerate any exertion, nor could he stand on his legs for long because of cramping, therefore placing him under a severe disability that precludes his working. Dr. Elmore diagnosed emphysema, relying on the clinical and laboratory findings in reports of specialists to whom he had sent Caulder in 1981 for further testing. Dr. Avery received the referral and apparently arranged for Caulder to be hospitalized for testing and for his examination by Dr. Berglund, a cardiologist. Dr. Berglund's clinical impression of Caulder's breathing problem in his report dated May 5, 1981, was COPD, probably severe, and he suggested minor coronary artery disease. Dr. Hixson interpreted the pulmonary function test given on that date and stated that it indicated moderate non-reversible obstructive ventilatory impairment, and was consistent with advanced emphysema. Dr. Avery interpreted the results of the pulmonary Caulder's back and leg problems were diagnosed by Dr. Elmore as progressive and peripheral neuropathy affecting the lower extremities. As noted above, Dr. Elmore opined that the combination of this problem with the breathing problem rendered Caulder unable to work. In September, 1983, Dr. Taylor examined Caulder concerning his increasing difficulty with his legs and found good dorsalis pulsations with good femoral pulsations, but he prescribed medication and noted that he would get a vascular consultation. Dr. Rollins, a neurologist, examined Caulder on October 25, 1983, and disagreed with Dr. Elmore's diagnosis of peripheral neuropathy. His impression was that Caulder has either intermittent claudication of the lower extremities or claudication of the spinal roots in the back. Dr. Rollins recommended that Caulder undergo a lumbar myelogram and arteriogram to ascertain if his diagnosis was correct and whether the conditions would be amenable to surgical treatments as he believed. Caulder first tried medication before submitting to the hospitalization and testing. After the medication proved unsuccessful, Caulder returned to Dr. Rollins for the tests.

function test as indicative of moderately severe COPD, not significantly reversible by bronchodilator therapy. In July, 1983, Dr. Reddy administered a pulmonary function test to Caulder and found moderate COPD.

The ALJ rendered his opinion on Caulder's claim prior to Caulder's return to Dr. Rollins, however. Caulder's attorney filed the request for review by the Appeals Council as required within the 60 days following the ALJ's opinion. At that time, Caulder had just entered the hospital and the results of the tests were not yet available.

In his decision issued on April 30, 1984, the ALJ found that Caulder had a history of COPD and a back impairment, but that he did not meet the severity standard of the Social Security Act and therefore was not disabled. The ALJ refused to give Dr. Elmore's opinion the considerable weight ordinarily given to a treating physician, Wilson v. Heckler, 734 F.2d 513, 518 (11th Cir.1984), especially a physician who has treated a patient over a significant length of time, Perez v. Schweiker, 653 F.2d 997, 1001 (5th Cir. Unit A 1981), ¹ because he found that the evidence as a whole did not justify Dr. Elmore's opinion. The ALJ found that Dr. Elmore did not submit clinical or laboratory findings to substantiate his diagnosis, apparently not considering the specialists' reports referenced in Dr. Elmore's reports as adequate. The ALJ also referred to selected portions of the other medical reports. He discounted Dr. Reddy's diagnosis of COPD because he found that it was "apparently based on the claimant's subjective remarks rather than the objective findings which were essentially negligible," and referred to Social Security Ruling 82-55 which would classify such levels standing alone as not severe. The ALJ concluded that the evidence did not substantiate progressively worsening emphysema.

As to Caulder's back and leg problems, the ALJ report is less than clear. ² Although the report states at one point that "a consultative neurologist stressed that the claimant does have" peripheral neuropathy, the context of the opinion indicates that this is a misstatement and that in fact the ALJ relied on Dr. Rollins' finding that Caulder does not have peripheral neuropathy. As noted above, Rollins had recognized that Caulder was suffering from an ailment, albeit misdiagnosed, and had recommended further testing to correctly identify the problem. The ALJ report also erred in noting that Rollins had doubted that either problem would be amenable to surgical treatment. In fact, Rollins' report indicates that at that time he had thought Once the ALJ found that Caulder was not suffering from a severe impairment, singly or in combination, he stopped the sequential evaluation. The Appeals Council denied Caulder's request for review of the ALJ decision, making the ALJ determination the final decision of the Secretary subject to review in federal court.

                that either would be amenable to treatment.  In conclusion, the ALJ stated that "there is no indication that the claimant sought further evaluation as recommended.  Physical examination of the lower extremities has been essentially negative and without medical data to the contrary, the evidence fails to show an incapacitating vascular problem."    At the hearing the ALJ questioned Caulder as to whether he had ever undergone a lumbar myelogram or an arteriogram.  When Caulder responded negatively, the ALJ did not inquire whether Caulder planned to do so in the future so that the decision should be postponed and the results included in the record.  The ALJ discounted Caulder's allegations of pain, as well as his wife's testimony about his pain, finding that they were not supported by the evidence
                

Caulder then commenced this action in federal district court under the jurisdiction of 42 U.S.C. Sec. 405(c). By that time, Caulder had undergone the myelogram and presented the results of that test to the district court. He requested the district court to remand the case to the Secretary for consideration of the new evidence. The district court held that it had no jurisdiction to consider the additional evidence and affirmed the denial of benefits.

II. QUESTIONS ON APPEAL

A. Consideration of Evidence Not Presented During the Administrative Proceedings

Caulder's dispositive claim at this point is his request that the case be remanded to the Secretary for consideration of the new evidence proffered to the district court consisting of the results of the medical...