Falu v. Secretary of Health and Human Services, 82-1447

• Decision Date: 29 March 1983
• Docket Number: No. 82-1447,82-1447
• Citation: 703 F.2d 24
• Parties: Daniela FALU, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

Page 24

703 F.2d 24

1 Soc.Sec.Rep.Ser. 333

Daniela FALU, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee.

No. 82-1447.

United States Court of Appeals First Circuit.

Submitted Oct. 8, 1982.

Decided March 29, 1983.

Rafael Carreras Valle, Rio Piedras, P.R., on brief for plaintiff, appellant.

Raymond L. Acosta, U.S. Atty., San Juan, P.R., J. Paul McGrath, Asst. Atty. Gen., Civil Division, Dept. of Justice, Washington, D.C., Annette H. Blum, Regional Atty., Washington, D.C., Annette Kasle, Asst. Regional Atty., Dept. of Health and Human Services, New York City, on brief for defendant, appellee.

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

PER CURIAM.

Daniella Falu appeals pursuant to 42 U.S.C. Sec. 405(g) from a judgment of the district court affirming the Secretary of Health and Human Services' denial of her second application for disability benefits. Falu claims that she is disabled under 42 U.S.C. Sec. 423(a) by back pain and nerves. She argues that the Secretary's decision is not supported by substantial evidence and requests that the case be remanded for a new hearing for "additional new evidence."

Falu is a 46-year-old woman with a high school education and some secretarial training who worked for 21 years as a spool assembler in an electronics factory. This job required that she remain seated for eight hours a day. In October 1976 she ceased working because of back pain. She was treated and evaluated in physical therapy at the State Insurance Fund (SIF). At that time the diagnosis was lumbosacral sprain related to her work. SIF records state that there were no findings of abnormality and treatment was not indicated. In June 1977, Falu returned to work but left in the middle of the second day because of the pain in her back. She returned to SIF, where in November 1977 a myelogram was performed. The results of that test were essentially negative although there was evidence of very old moderately severe scoliosis and possible degenerative changes in the discs. The discharge note recommended that Falu return to her normal activities.

On January 16, 1978 Falu submitted her first application for disability benefits, claiming that she was disabled as a result of a lumbosacral sprain. The Social Security Administration (SSA) denied this application on February 2, 1978; on March 17, 1978 it denied reconsideration. Falu did not appeal.

In March 1979 Falu reapplied for disability benefits, this time claiming that she was disabled because of her "nerves and back." The SSA disapproved this claim. In her request for reconsideration Falu claimed that she couldn't concentrate on anything because she was constantly preoccupied by the pain which radiated from her neck to her back. Reconsideration was denied. Falu sought and was granted a hearing before an administrative law judge (ALJ). The ALJ found that although Falu could not return to her former work because it required continual sitting and adherence to strict production standards, she could do noncompetitive sedentary, light or moderate work in jobs that would not require frequent lifting, bending, carrying, or prolonged sitting and in which she would not be subject to strict production or rapid execution requirements. On the basis of testimony from the vocational expert, he found that such jobs exist in the Puerto Rico economy. The ALJ therefore affirmed the Secretary's decision. The ALJ also found that any claim to disability for the period covered by her first application was barred by res judicata.

Falu appealed to the district court. Her complaint, filed on October 20, 1980, sought relief on the ground that the Secretary's decision was not supported by substantial evidence. According to the docket sheet, on March 31, 1981 she filed a memorandum with an attachment. Neither the memorandum nor the attachment is included in the record before this court. The magistrate's August 1981 report states that Falu submitted sixteen pages of psychiatric reports dated from August 1980 to February 1981. We assume that the attachment may have been the psychiatric reports. The magistrate's report admonished counsel that the district court does not consider new evidence and recommended that the Secretary's decision be affirmed. Falu promptly filed an objection to the report. On March 9, 1982 she filed a motion to submit a June 1981 psychiatric evaluation from the Puerto Rico Industrial Commission in Spanish. The motion also requested a remand. On the same day, March 9, the court, after "thorough consideration of all the evidence ... as well as the Secretary's findings", entered judgment for the Secretary. The judgment was dated March 8, 1982. On March 16, 1982 the court denied Falu's March 9 motion as moot.

On appeal Falu argues that the Secretary's decision is not supported by substantial evidence in part because she suffers from exertional and non-exertional impairments. She claims that the district court erred in refusing to consider the psychiatric report(s) she submitted to it and that her case should be remanded for additional evidence. She also claims that res judicata should not preclude review of her first application because her mental condition prevented her from understanding that she had a right to appeal and because she had no notice prior to the hearing that res judicata would be an issue. She also objects to the preformulated evaluation paragraphs used by the ALJ. We shall consider these claims in turn.

To prevail on a request for a remand for new evidence, it is not enough merely to allege that there is such evidence. "The party seeking the remand must present to the court the evidence it hopes to submit in the administrative proceeding should remand be granted or at least a general showing of the nature of the evidence." King v. Califano, 599 F.2d 597, 599 (4th Cir.1979), citing Long v. Richardson, 334 F.Supp. 305, 306 (W.D.Va.1971); Bradley v. Califano, 573 F.2d 28, 31 (10th Cir.1978). This is required because we will grant the remand only if we conclude that the Secretary's decision might reasonably have been different had the new evidence been before him at the time of his decision. King, supra. The only new evidence in the record before this court is the June 1981 psychiatric evaluation in Spanish. The district court of Puerto Rico to which appellant moved to submit this report, requires that "[a]ll documents not in the English language which are presented to or filed in [that] Court, whether as evidence or otherwise, shall be accompanied at the time of presentation or filing by an English translation thereof." Rule 6, Rules of United States District Court for the District of Puerto Rico. No such translation was provided either below or on appeal. Nor has appellant provided to this court any part of the sixteen pages mentioned by the magistrate. It is appellant's duty "to insure inclusion in the record of all ... materials upon which [she] intend[s] to rely on appeal." United States v. Johnson, 584 F.2d 148, 156 n. 18 (6th Cir.1978), cert. denied, 440 U.S. 918, 99 S.Ct. 1239, 59 L.Ed.2d 469 (1979); Rivera Morales v. Benitez de Rexach, 541 F.2d 882, 884 n. 1 (1st Cir.1...