Cummings v. Bowen, 87 C 5167.

• Decision Date: 13 January 1988
• Docket Number: No. 87 C 5167.,87 C 5167.
• Citation: 677 F. Supp. 975
• Parties: Dorothy A. CUMMINGS, Plaintiff, v. Otis R. BOWEN, M.D., Defendant.
• Court: U.S. District Court — Northern District of Illinois

677 F. Supp. 975

Dorothy A. CUMMINGS, Plaintiff, v. Otis R. BOWEN, M.D., Defendant.

No. 87 C 5167.

United States District Court, N.D. Illinois, E.D.

January 13, 1988.

Frederick J. Daley, Chicago, Ill., for plaintiff.

Anton R. Valukas, U.S. Atty., Margaret C. Gordon, Asst. U.S. Atty., Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

SHADUR, District Judge.

Dorothy Cummings ("Cummings") sought social security disability benefits under 42 U.S.C. § 416(i)¹ due to injuries she sustained in a September 1983 automobile accident. Administrative Law Judge ("ALJ") Allyn Brooks eventually approved a closed period of benefits, ruling Cummings was disabled only through January 27, 1986. Cummings exhausted her administrative appeals and then brought this action against the Secretary of Health and Human Services ("Secretary").

Both sides have now moved for summary judgment based on the administrative record. For the reasons contained in this memorandum opinion and order, both motions are denied and the case is remanded to the Appeals Council for its consideration pursuant to 20 C.F.R. ("Reg.") § 404.970(b).

Background

At the time of her April 7, 1986 hearing before ALJ Brooks, Cummings was a 37-year-old woman with a ninth-grade education. She had worked as a housekeeper in hotels and as a nursing aide in a nursing home.

As the result of her September 25, 1983 automobile accident, Cummings suffered an extremely comminuted² fracture of the right femur, multiple fractures of the pelvis and a fractured right tibia (R. 55, 166). Those injuries required her hospitalization through December 12, 1983, when she was discharged in a spica body cast (id.). In January 1984 the cast was removed (R. 231), but she was then confined to a wheelchair for three months and since then has used either a cane or crutches to assist her (R. 88-90).

Cummings first applied for benefits in January 1985. That application was denied at the initial stages of review and she did not appeal (R. 119-21). When she applied again on May 9, 1985, benefits were again denied. She appealed and obtained a de novo hearing before the ALJ.

ALJ Brooks determined Cummings had been disabled from the date of her accident through January 27, 1986, by which time she had regained the "capacity to perform a wide range of sedentary work" (R. 57). Accordingly the ALJ treated Cummings' May application as a petition to reopen the January application, reopened that application and awarded benefits from September 25, 1983 through January 27, 1986 (R. 56, 58).

Cummings requested that the Appeals Council review the determination that she was no longer disabled. After she was allowed an extension to provide additional evidence supporting her claim (R. 5), she furnished a report by a registered clinical psychologist (the "Snyder Report") indicating she has low intelligence, marginal literacy and several emotional or psychological problems (R. 14-32). She also submitted an evaluation by a vocational specialist (the "Gentry Report") concluding, based on the evidence before the ALJ and the Snyder Report, that there were few if any jobs in the national economy Cummings could perform (R. 33-36).

On May 19, 1987 the Appeals Council declined to review ALJ Brooks' decision (R. 3-4). That decision thus became Secretary's final action, from which the present appeal is taken.

Appeals Council Denial of Review

Secretary's regulation defining when the Appeals Council should grant review of an ALJ's determination says (Reg. § 404.970):

(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.

(b) If new and material evidence is submitted with the request for review, the Appeals Council shall evaluate the entire record. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently in the record.

That clearly sets out two different standards, one applicable where "new and material evidence" is submitted and one where it is not.

Though Cummings submitted additional evidence (the Snyder and Gentry Reports) to the Appeals Council, it nevertheless denied review, telling Cummings her case met none of the four criteria applicable under Reg. § 404.970(a)(R. 3). While the Appeals Council did not explicitly state Cummings' additional evidence was not new and material, that conclusion is implicit in its reference to Reg. § 404.970(a) rather than 404.970(b).³ Secretary now defends the Appeals Council's action on that ground.

It is difficult to imagine any valid characterization of the additional evidence as either not new or not material. Both reports were generated after ALJ Brooks' decision—they are clearly "new." And they are just as clearly "material" to a determination whether Cummings was disabled as defined in the Act:

1. The Snyder Report opines she met listings 12.07 and 12.08 for disability.

2. The Gentry Report says that there are very few occupations in the national economy for which she is able.

Had ALJ Brooks been provided those reports at the time of the hearing, the determination might well have been different.⁴ Thus the additional information fits the classic test of materiality.

Secretary argues the two reports are not material because they involve alleged disabling conditions not presented to the ALJ. In that respect Secretary relies primarily on the 1980 amendments to Section 402(j)(2):

An application for any monthly benefits under this section filed before the first month in which the applicant satisfies the requirements for such benefits shall be deemed a valid application (and shall be deemed to have been filed in such first month) only if the applicant satisfies the requirements for such benefits before the Secretary makes a final decision on the application and no request under section 405(b) of this title for notice and opportunity for a hearing thereon is made or, if such a request is made, before a decision based upon the evidence adduced at the hearing is made (regardless of whether such decision becomes the final decision of the Secretary).

Secretary correctly notes that amendment was enacted to prevent "floating" applications, in which evidence of a worsening condition is brought forward after the ALJ reaches a decision (see S.Rep. No. 408, 96th Cong., 2d Sess. 57, reprinted in 1979 U.S.Code Cong. & Ad.News 1335). But by its own terms Section 402(j)(2) is inapplicable to Cummings' claim. She was already eligible for benefits in the month she filed her application,⁵ so she does not need to rely on that Section because of becoming eligible only at a later date. Moreover, she does not seek to introduce evidence of a new or worsened condition, but rather of her condition at the time ALJ Brooks determined she was no longer disabled. Were Section 402(j)(2) read to preclude the Appeals Council from considering new and material evidence of a claimant's condition at the time of the ALJ's decision, the provisions of Reg. § 404.970(b) governing the Council's treatment of just such evidence would be rendered nugatory. For at least those two reasons, the Secretary's reliance on Section 402(j)(2) is totally misplaced.

Secretary also points (albeit obliquely) to Section 405(g) as precluding consideration of the Snyder and Gentry Reports:

The court may ... remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and that there is good cause for failure to incorporate such evidence into the record in a prior proceeding.

That provision had also been amended in 1980 in an effort to limit the circumstances under which a district court may remand to the Secretary for consideration of "new evidence." Before 1980 a district court could remand at any time "on good cause shown," without the claimant specifically showing he or she had good cause for not presenting the evidence earlier. Secretary is right in saying Cummings cannot show good cause for failing to present the evidence at her hearing.⁶ If then the Snyder and Gentry Reports are "new evidence" within Section 405(g)'s intended sense, Cummings' claim cannot be remanded for Secretary to consider them.

That treatment of evidence already tendered to Secretary before the case is brought to a district court would prove too much. It would leave no means to correct the Appeals Council's erroneous exclusion of such evidence. Section 405(g) requires a claimant to show good cause for failing to introduce evidence "in a prior proceeding," not simply at the ALJ hearing level. Here Cummings did try to introduce this evidence before Secretary, and the Appeals Council's error in refusing to consider it certainly constitutes good cause for Cummings' inability to include it in the record.

While Cummings may not have had good cause for waiting to raise this issue until requesting review by the Appeals Council, there is no good cause requirement for presenting new evidence at that level.⁷ Indeed it will be recalled the Appeals Council specifically allowed Cummings an extension of time to adduce new evidence. In sum, Section 405(g) also does not bar remand for Secretary to consider the effects of the Snyder and Gentry Reports on his determination.⁸

Plainly, then, Secretary's present decision cannot stand. It remains necessary to consider whether remand or outright reversal is the appropriate outcome. In that respect the starting point for analysis is the fact that when the Appeals Council denied review, ALJ Brooks' decision became Secretary's final action. If that...