Culbertson v. Shalala

• Decision Date: 01 August 1994
• Docket Number: No. 93-3656,93-3656
• Citation: 30 F.3d 934
• Parties: , Unempl.Ins.Rep. (CCH) P 14038B Max CULBERTSON, Appellant, v. Donna E. SHALALA, Secretary of the Department of Health and Human Services, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 934

30 F.3d 934

45 Soc.Sec.Rep.Ser. 169, Unempl.Ins.Rep. (CCH) P 14038B

Max CULBERTSON, Appellant, v. Donna E. SHALALA, Secretary of the Department of Health and Human Services, Appellee.

No. 93-3656.

United States Court of Appeals Eighth Circuit.

Submitted April 12, 1994.

Decided Aug. 1, 1994.

Stephen Speicher, Lincoln, NE, argued, for appellant.

Daniel A. Morris, Omaha, NE, argued, for appellee.

Before RICHARD S. ARNOLD, Chief Judge, HENLEY, Senior Circuit Judge, and MAGILL, Circuit Judge.

HENLEY, Senior Circuit Judge.

Max Culbertson appeals the district court's ¹ order upholding his disability onset date as determined by the Secretary of Health and Human Services (the Secretary). We affirm.

I.

Culbertson submitted his first application for benefits on October 7, 1987. The Secretary denied the application without a hearing, and subsequently denied reconsideration. Less than twelve months later, Culbertson filed a second application that was also originally denied. However, he requested and received a hearing, after which an administrative law judge (the first ALJ) determined that Culbertson had been disabled since February 1, 1984. The first ALJ refused to reopen Culbertson's first application because he had failed to demonstrate good cause for such action. Culbertson appealed this refusal to reopen, and the Appeals Council held that the first ALJ committed legal error by requiring a good cause showing before reopening the first application. However, because the hearing tapes had been lost, the Appeals Council was unable to review the record. It therefore remanded with directions to conduct a second hearing.

After the second hearing, a different administrative law judge (the second ALJ) determined that the original application would be reopened. However, the second ALJ found Culbertson to have been disabled only since February 11, 1988, over four years later than the onset date found by the first ALJ. ² The Appeals Council refused review of the second ALJ's finding, so that determination became the final decision of the Secretary. Culbertson then filed suit in the district court, which upheld the Secretary's decision. The court found first that the Secretary had authority to remand for an entirely new evidentiary hearing. It then concluded that substantial evidence supported the second ALJ's findings.

II.

Before challenging the second ALJ's factual finding as to the disability onset date, Culbertson contests the Appeals Council's decision to remand his case for a new evidentiary hearing. ³ He claims the remand violated the Social Security Act and the due process and equal protection clauses of the Constitution. Moreover, he contends the Appeals Council lacked authority under its own regulations to remand in the particular circumstances of this case. We begin by considering and rejecting this assertion.

Much of Culbertson's reasoning depends upon his conclusion that the Appeals Council was limited to review of the issues he specifically raised. However, we have held that the Appeals Council has authority to expand the scope of its review whenever a claimant attempts to limit the issues on appeal. Clift v. Sullivan, 927 F.2d 367, 368 (8th Cir.1991); see also Gronda v. Secretary of Health & Human Services, 856 F.2d 36, 39 (6th Cir.1988), cert. denied, 489 U.S. 1052, 109 S.Ct. 1312, 103 L.Ed.2d 581 (1989); Kennedy v. Bowen, 814 F.2d 1523, 1527 (11th Cir.1987); De Long v. Heckler, 771 F.2d 266, 267-68 (7th Cir.1985); Oldham v. Secretary of Health & Human Services, 718 F.2d 507, 510 (1st Cir.1983). Generally, the only requirement is that the Appeals Council provide notice of its intention to do so. Clift, 927 F.2d at 368. Consequently, so long as notice is given, the Appeals Council may review any issue in a case, including the onset date or even the very basic question of disability. As part of that review the Appeals Council may vacate the ALJ's decision and remand for new hearings. 20 C.F.R. Secs. 404.977(a), 404.979 (1993). This is true even when the original record is incomplete because hearing tapes are lost or inaudible. See Fleshman v. Sullivan, 933 F.2d 674, 675 (8th Cir.1991); Bivines v. Bowen, 833 F.2d 293, 295 (11th Cir.1987).

Here, the Secretary provided Culbertson with a Notice of Favorable Decision immediately after the first ALJ's decision. That notice provided in part as follows When you appeal, you request the Appeals Council to review the decision. If the Appeals Council grants your request, it will review the entire record in your case. It will review those parts of the decision which you think are wrong. It will also review those parts which you think are correct and may make them unfavorable or less favorable to you. You will receive a new decision.

(Emphasis added.) Moreover, the Appeals Council's remand order stated:

In reviewing the case from the standpoint of reopening and revision, the Administrative Law Judge should find pertinent information in Regulation 404.988. Further, the Administrative Law Judge will arrange for a supplemental hearing and will give further consideration to the issues raised in this case and will afford the claimant the opportunity to present further evidence in support of his claim.

We note in particular that the remand order required a supplemental hearing as to the "issues in this case," not as to the reopening issue alone. Moreover, had the Appeals Council not intended to expand its review, it could have decided the reopening issue itself and thereby have avoided the burden and expense of a remand. We conclude that the Appeals Council clearly intended to conduct a complete review of Culbertson's claim and sufficiently notified him of that intent. The latter conclusion is supported by the following exchange at the second hearing:

ALJ: Well, basically, from reading it[,] it ... kind of appears to me that they wanted me to do a full hearing and make a decision over the entire matter. Isn't that your understanding also....

[CULBERTSON'S] ATTY: It's ... my understanding that's what they want.

Because notice was given, the Secretary had authority under the applicable regulations to expand the scope of review and remand for new hearings.

Notwithstanding the Appeals Council's authority under the regulations to act as it did, Culbertson asserts it violated both the Social Security Act and the Constitution by exercising such authority in this case. We disagree and reject each of Culbertson's contentions.

First, Culbertson contends the Secretary acted arbitrarily and thereby violated the Congressional mandate to "establish by regulation uniform standards which shall be applied at all levels of determination, review, and adjudication in determining whether individuals are under disabilities as defined in sections 416(i) or 423(d) of this title." 42 U.S.C. Sec. 421(k)(1) (1991). However, the Appeals Council did not act arbitrarily, for it vacated the first ALJ's decision because the hearing tapes had been lost, thus rendering impossible any meaningful review of the first ALJ's findings.

Second, Culbertson contends the Secretary violated the due process clause of the fifth amendment by penalizing him for exercising his right of appeal. However, even had Culbertson not appealed the first ALJ's refusal to reopen, the Appeals Council had authority to review his claim and either remand for new hearings or reverse the first ALJ outright. 20 C.F.R. Secs. 404.969, 404.977, 404.979. We cannot conclude that Culbertson was penalized for appealing simply because the Appeals Council did what it could have done absent that appeal. Moreover, Culbertson cannot claim ignorance of the possible consequences of his appeal, for the Notice of Favorable Decision expressly notified him that the Appeals Council would review every aspect of his claim. In these circumstances, there is no due process violation. See Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir.1992), cert. denied, --- U.S. ----, 113 S.Ct. 1294, 122 L.Ed.2d 685 (1993).

Third, Culbertson claims the Secretary violated equal protection by arbitrarily placing him in a worse position than an identical claimant whose ALJ applied correct legal standards. But again, the Appeals Council did not act arbitrarily. Moreover, even if the equal protection clause is implicated, the decision to remand clearly advanced the Secretary's legitimate concern that disability benefits be paid only to those who qualify for such benefits.

III.

In addition to challenging the legality of the remand order, Culbertson directly contests the Secretary's finding as to his disability onset date. Our review in this regard is limited to determining whether the second ALJ's decision is supported by substantial evidence on the record as a whole. Jackson v. Bowen, 873 F.2d 1111, 1113 (8th Cir.1989). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Reed v. Sullivan, 988 F.2d 812, 814 (8th Cir.1993). This standard is " 'something less than the weight of the evidence and it allows for the possibility of drawing two inconsistent conclusions, thus it embodies a zone of choice within which the Secretary may decide to grant or deny benefits without being subject to reversal on appeal.' " Turley v. Sullivan, 939 F.2d 524, 528 (8th Cir.1991) (quoting Bland v. Bowen, 861 F.2d 533, 535 (8th Cir.1988)). Consequently, "even if we might have weighed the evidence differently, we may not reverse the Secretary's decision when there is enough evidence in the record to support either outcome." Browning v. Sullivan, 958 F.2d 817, 822 (8th Cir.1992).

We have reviewed the record as a whole and find substantial evidence therein to support the second ALJ's finding that Culbertson was not disabled prior to February 11, 1988. We note, as did the second ALJ and the district court, that there is very little evidence supporting Culbertson's argument to the contrary. For instance, though...