Evangelista v. Secretary of Health and Human Services, 87-1058

• Decision Date: 11 August 1987
• Docket Number: No. 87-1058,87-1058
• Citation: 826 F.2d 136
• Parties: , Unempl.Ins.Rep. CCH 17,493 Samuel C. EVANGELISTA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 136

826 F.2d 136

18 Soc.Sec.Rep.Ser. 711, Unempl.Ins.Rep. CCH 17,493

Samuel C. EVANGELISTA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 87-1058.

United States Court of Appeals, First Circuit.

Submitted June 5, 1987.

Decided Aug. 11, 1987.

William R. Sullivan and Sullivan & Sullivan, Wakefield, Mass., on brief, for plaintiff, appellant.

Paul Germanotta, Asst. Gen. Counsel, Dept. of Health and Human Services, Frank L. McNamara, Jr., U.S. Atty., and Peter E. Gelhaar, Asst. U.S. Atty., Boston, Mass., on brief, for defendant, appellee.

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

SELYA, Circuit Judge.

Claimant Samuel C. Evangelista appeals from a decision of the United States District Court for the District of Massachusetts. The district court refused to remand this social security case to the Secretary of Health and Human Services (Secretary) for the taking of new evidence, and dismissed the complaint. Evangelista argues that he satisfied the requirements for remand under 42 U.S.C. Sec. 405(g). In conjunction therewith, he maintains that the Secretary's decision denying him benefits was not supported by substantial evidence. So, he says, the district court erred. We disagree.

I

On March 8, 1978, Evangelista initiated an application for disability insurance benefits, alleging an inability to work since April 6, 1976 on account of low back pain. Following a hearing before an administrative law judge (ALJ) at which Evangelista was represented by counsel, his claim was denied. The ALJ determined that, although Evangelista suffered from a severe medical impairment, his age, education, work experience, and residual functional capacity were such that he could not be considered as "disabled" within the meaning of the Social Security Act. See 20 C.F.R. Sec. 404.1520(f). The claimant did not seek judicial review and the decision became final.

On May 18, 1983 Evangelista filed a second application in which he claimed an inability to work since July 22, 1982 because of an assortment of factors (including back pain, hypertension, and cardiac problems). Because his insured status had expired at the end of 1980, Evangelista bore the burden of establishing that he became disabled within the meaning of the Act prior to December 31, 1980. A hearing was held on December 1, 1983 before the same ALJ. Evangelista, notwithstanding his earlier experience with the system and a specific reminder by the ALJ that he was entitled to counsel, elected to act as his own advocate.

Evidence presented at the hearing disclosed that the claimant was then fifty-six years of age, weighed 228 pounds and had a tenth grade education. He worked in manufacturing as a warehouse manager and traffic manager for a quarter of a century (until 1974), and as part owner and chief operator of a gift shop between 1974 and 1978. He contracted a back problem in March 1976. Since then, Evangelista had been treated, both in and out of hospitals and clinics, for a wide array of physical ailments. He testified, inter alia, that persistent lumbosacral pain and breathing trouble prevented him from working since 1978. His wife added her version of the plaintiff's travails and a prodigious quantity of medical evidence was introduced. ¹

Early in 1984, the ALJ issued a decision in which he determined that the claimant, though afflicted with a variety of ills, had no "impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulation No. 4." Focusing on the decisive end-of-eligibility date (December 31, 1980), the ALJ opined that Evangelista "was probably not able to perform his past relevant work," but that his subjective complaints during this span were overstated, that is, at variance with the objective medical data. The ALJ concluded that, at the end of 1980, Evangelista had both the residual functional capacity and the requisite skills to satisfy the physical demands of sedentary work. ² Considering claimant's age, education and work experience, as well as his exertional capacity, and applying Rule 201.11 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 and 20 C.F.R. Sec. 404.1569, the ALJ ascertained that the appellant was "not disabled" within the meaning of the Act. This determination, the ALJ believed, withstood one final test: Evangelista's nonexertional impairments did not significantly compromise his ability to perform the full range of sedentary work occupations.

After the Appeals Council denied claimant's request for review of the decision, Evangelista secured counsel and claimed an appeal to the district court. In lieu of filing a motion for summary judgment as requested by the court, Evangelista sought to have the case remanded to the Secretary for the taking of new evidence pursuant to 42 U.S.C. Sec. 405(g). In a thoughtful memorandum and order dated December 11, 1985, the district court denied the motion for remand and dismissed the appeal.

II

The controlling statute provides in pertinent part that the court "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 the failure to incorporate such evidence into the record in a prior proceeding...." 42 U.S.C. Sec. 405(g). In this case, the new evidence, supposedly "material," takes the form of an opinion rendered by Dr. Earl F. Hoerner, who describes himself as "a licensed physician specializing in orthopedics, musculoskeletal evaluation, rehabilitation and evaluation." The doctor first appeared on the scene June 10, 1985, subsequent not only to the Secretary's final decision, but some nine months after suit had been instituted in the district court. The inference is inescapable that appellant's counsel retained him to evaluate the case. Based on the evidence contained in the administrative record and a physical examination which he conducted in June 1985 (including associated laboratory testing), Dr. Hoerner, in an affidavit appended to the motion for remand, stated that, since 1978, Evangelista had been:

unable to carry out work activities within his job specification and job demands. Also, because of the degree and extent of his permanent disability he demonstrates little if any work capacity that would enable him to transfer his educational and vocational skills and training to another vocational pursuit.

Evangelista's claimed entitlement to a remand has two aspects. He must convince us, first, that the Hoerner evidence is both "new" and "material," as those terms are used in the statute. Second, he must show that there was a legally adequate reason (presumably, his lack of legal representation) for neglecting to present expert evaluative opinion such as that belatedly supplied by Dr. Hoerner. In other words, Evangelista must demonstrate that Dr. Hoerner's findings and conclusions comprise fresh (and important) grist for the Secretary's mill, and that claimant's pro se status constitutes the "good cause" which Sec. 405(g) requires for the failure seasonably to have offered the evidence.

A. Newness/Materiality.

Under 42 U.S.C. Sec. 405(g), remand is appropriate only where the court determines that further evidence is necessary to develop the facts of the case fully, that such evidence is not cumulative, and that consideration of it is essential to a fair hearing. Scott v. Califano, 462 F.Supp. 240, 242 (N.D.Ill.1978). The mere existence of evidence in addition to that submitted before the hearing examiner will not constitute sufficient cause for remand. Teal v. Mathews, 425 F.Supp. 474, 481 (D.Md.1976). Rather, to qualify under the new/material standard, the discovered data must be meaningful--neither pleonastic nor irrelevant to the basis for the earlier decision.

The attempt to fit the Hoerner evidence within these guidelines is an ill-conceived effort to shove a square peg into a round hole. The medical record compiled before the ALJ was voluminous, detailed, and complex. It spanned many years, and dealt with an array of ailments. Given the prolixity of the evidence actually considered, it can scarcely be suggested that the taking of additional evidence is necessary for a fuller development of the facts of the case, or that the presentation of yet another medical report is somehow essential to afford the claimant a fair hearing. Compare Scott v. Califano, 462 F.Supp. at 242-43. Although Dr. Hoerner arranges the factual particles contained in the record in a somewhat different pattern, his affidavit and report offers no new facts of any relevance. ³ In short, the evidence is derivative rather than direct. It results from a retained physician's evaluation of the identical medical reports which composed the administrative docket. That Dr. Hoerner happened to view this collection of data differently, that he happened to disagree with the conclusion reached by the ALJ, does not render the evidence which forms the basis for his opinion any less cumulative of what already appears in--indeed, comprises the totality of--the record. If a losing party could vault the "newness" hurdle of Sec. 405(g) merely by retaining an expert to reappraise the evidence and come up with a conclusion different from that reached by the hearing officer, then the criterion would be robbed of all meaning. A wide variety of evidence would be "new" in a sophisticated, enterprising world where there are often almost as many opinions as there are experts.

Though we view the lack of newness as dispositive on this furculum of the test, we remark that materiality is likewise a problem. We have held that remand is indicated only if, were the proposed new evidence to be considered, the Secretary's decision "might reasonably have been different." Falu v. Secretary of Health and Human Services, 703 F.2d 24, 27 (1st Cir.1983). In this case, both the ALJ...