Cotton v. Sullivan, 92-6392

• Decision Date: 13 August 1993
• Docket Number: No. 92-6392,92-6392
• Citation: Cotton v. Sullivan, 2 F.3d 692 (6th Cir. 1993)
• Parties: , Unempl.Ins.Rep. CCH 17463A Nancy A. COTTON, Plaintiff-Appellee, v. Louis W. SULLIVAN, Secretary, Health & Human Services, Defendant-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 692

2 F.3d 692

42 Soc.Sec.Rep.Ser. 116, Unempl.Ins.Rep. CCH 17463A

Nancy A. COTTON, Plaintiff-Appellee, v.Louis W. SULLIVAN, Secretary, Health & Human ServicesDefendant-Appellant.

No. 92-6392.

United States Court of Appeals Sixth Circuit.

Argued June 22, 1993.

Decided Aug. 13, 1993.

Robert E. Francis(argued and briefed), James S. Miller, Francis Law Office, Cadiz, KY, for plaintiff-appellee.

Joseph M. Whittle, U.S. Atty., W. Brady Miller, Asst. U.S. Atty., Office of the U.S. Atty., Louisville, KY, Susan Sleater(argued and briefed), Freddi Lipstein, U.S. Dept. of Justice, Civ. Div. Appellate Staff, Washington, DC, for defendant-appellant.

Before: MILBURN and BOGGS, Circuit Judges; and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

The Secretary of Health and Human Services appeals the district court's August 11, 1992 Order and Judgment awarding disability benefits to the claimant, Nancy A. Cotton.We reverse the district court for the following reasons.

I.

Thirty-five-year-old plaintiff-appelleeNancy A. Cotton("Cotton") injured her left leg when she caught her foot in a recliner while working as a housekeeper at a rest home on February 13, 1987.Cotton, a high school graduate with previous experience as a seamstress and sewing machine operator, has not worked since.

On August 5, 1987, Cotton applied for disability insurance benefits.Defendant-appellant Secretary of Health and Human Services ("Secretary") denied Cotton's application.After Cotton reapplied for disability insurance benefits on May 4, 1989, an Administrative Law Judge ("ALJ") conducted a hearing and subsequently denied Cotton's claim:

From a physical standpoint, the medical evidence demonstrates that the claimant has a history of musculoskeletal strain and residual discomfort from chrondromalacia [sic] of the knees....Despite the claimant's reports that she is unable to perform any work activity, the restrictions of the treating physicians are consistent and reflect an ability to perform at least light work activity not requiring repetitive bending, stooping, lifting activities, or climbing.The claimant does not have a physical impairment which would either meet or equal the criteria outlined in the appropriate Listings of Impairments.

....

The Administrative Law Judge sought the assistance of Dr. William Weiss[to evaluate] the severity of the claimant's mental functioning.After having [the] opportunity to observe the claimant at the hearing and hear her testimony, the medical expert opined a depressive syndrome with disturbances in appetite, sleep, and decreased energy.It is his opinion that the claimant does not have a major depressive syndrome[.]

Because of the claimant's testimony that she is able to do many activities when needed, including drive, light housework, and assisting in the care of her grandson, Dr. Weiss opined only moderate restriction of activities of daily living....The claimant's testimony that she drives when she has to or if [she] needs to suggests she has potential to manage her pain better than she is presently doing.The Administrative Law Judge concurs with the opinion of the medical expert and concludes that the claimant does have a severe impairment which does not meet or equal a listed impairment and requires a residual functional capacity assessment.

Based upon the opinions of the treating physicians, including Dr. Morehead and Dr. Davies, the claimant is physically capable of performing light work activity, in which she could avoid repetitive bent-knee positions of squatting, bending, stooping, or climbing....The Administrative Law Judge is persuaded that despite the claimant's testimony of severe pain, her activities of daily living reflecting an ability to do whatever she wishes, and the medical evidence support a residual functional capacity for at least light work activity.

Administrative Law Judge's March 6, 1990 Procedural History, Issues, and Decisionat 3-4.

Following the ALJ's decision, Cotton sought an administrative appeal before the Appeals Council, and submitted new assessments by Dr. Theodore Davies(Cotton's treating physician), social worker Gene King, and vocational expert James Adams in support thereof.The Appeals Council refused to review Cotton's claim:

Your representative states that in view of the medical assessments by Mr. King and Dr. Davies and the deposition by Mr. Adams, it is readily apparent that you cannot perform any type of sustained, gainful activity.He states that you cannot perform the jobs named by the vocational expert at the hearing.The Appeals Council has carefully considered these comments and the additional information but finds no reason to change the hearing decision.Although Mr. King states that you cannot maintain the responsibilities or stress of full-time employment, he also states your [sic] have a fair ability to handle stress.In the other 15 categories in which he rated your ability to do work-related activities, Mr. King indicated that you have good to very good/unlimited ability.Dr. Davies' assessment indicates that you can do less than a full range of sedentary work.This assessment differs not only from other medical assessments already of record, but from Dr. Davies' earlier assessment in which he stated you should avoid heavy bending, stooping and lifting.He included no medical findings in support of the new assessment or any explanation of why he changed his opinion.Mr. Adams based his conclusion that there is no work which you can do, on the above medical assessments.The Administrative Law Judge's decision was based on the written evidence of record, and the testimony elicited at the hearing, including your testimony and that of a medical expert and vocational expert.In response to a series of hypothetical questions, the vocational expert testified that there are other jobs which you can do.The Council finds that the hearing decision is supported by the record.

December 28, 1990Action of Appeals Council on Request for Reviewat 1-2.

Cotton appealed to the United States District Court for the Western District of Kentucky.Though the magistrate concluded that Cotton's claim could not be remanded to the Secretary because Cotton failed to demonstrate good cause for her failure to offer the new evidence at the administrative level, the magistrate concluded that the district court could consider the new evidence:

The Court cannot remand for consideration of evidence that is presented after the ALJ's decision but prior to Appeals Council action unless the plaintiff satisfies the requirements for remand set forth in 42 U.S.C. Sec. 405(g).She must show that the evidence is new, that it is material, and that there is good cause for the failure to incorporate it into the record at the administrative level.

The Sixth Circuit takes a "harder line" on the "good cause" test.The claimant must give a valid reason for failing to obtain relevant examinations prior to the hearing.

Here, the plaintiff has not addressed why she did not obtain the evidence from Mr. King, Mr. Adams, and Dr. Davies prior to the hearing before the ALJ.The court may not, therefore, remand for consideration of that evidence.The court itself may, however, consider the evidence.

Magistrate Judge's Reportat 8-9(citations omitted).

After considering the new evidence, the magistrate recommended that the Secretary's findings be reversed and that Cotton be awarded benefits.Notwithstanding the Secretary's exceptions to the Magistrate Judge's Report, the district court judge accepted the magistrate's recommendations and ordered that the Secretary pay Cotton benefits pursuant to her application.

The Secretary filed a timely notice of appeal challenging the district court's review of the new evidence that Cotton...