Mills v. Apfel

• Decision Date: 12 January 2001
• Docket Number: No. 00-1446,00-1446
• Citation: 244 F.3d 1
• Parties: (1st Cir. 2001) WANDA MILLS, Plaintiff, Appellant, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant, Appellee. Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

244 F.3d 1 (1st Cir. 2001)

WANDA MILLS, Plaintiff, Appellant, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant, Appellee.

No. 00-1446

United States Court of Appeals For the First Circuit

Heard January 12, 2001

Decided March 22, 2001

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MAINE

[Hon. D. Brock Hornby, U.S. District Judge] Francis M. Jackson with whom Jackson & MacNichol was on brief for appellant.

Richard Fox, Assistant Regional Counsel, Office of the Chief Counsel, Region I, Social Security Administration, with whom Jay P. McCloskey, United States Attorney, James M. Moore, Assistant United States Attorney, and Robert J. Triba, Chief Counsel, Region I, were on brief for appellee.

Before Boudin, Stahl and Lynch, Circuit Judges.

BOUDIN, Circuit Judge.

This is an appeal from a denial of social security benefits for disability and presents an issue on which the circuits are divided, namely, the treatment of proffers of new evidence on administrative review after the initial administrative decision. The claimant is Wanda Mills. Her present application for benefits was filed on December 23, 1996, and ultimately a hearing before an administrative law judge ("ALJ") was held on November 17, 1997, at which Mills was represented by counsel.

At the hearing, the controlling question was whether Mills was subject to a "disability," which had lasted or could be expected to last at least 12 months and which created an "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 423(d)(1)(A) (1994). Complex regulations, administered by the Commissioner of Social Security (the "Commissioner"), prescribe substantive standards and a five-step protocol for making a disability decision. Goodermote v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir. 1982); 20 C.F.R. §§ 404.1520, 416.920 (physical impairments); 404.1520(a), 416.920(a) (mental impairments) (2000).¹

On April 7, 1998, the ALJ issued his decision rejecting Mills' claim. He found that Mills, born in 1955, had a high school equivalency diploma (her formal education ended in 9th grade). Her work history included brief stints as an assembly line worker making small medicine bottles, and as a laundry worker and chambermaid in a motel, but she had not worked since late 1993. She had previous bouts of alcoholism and of treatment for it, but had not used alcohol since November 1996. The ALJ then discussed the physical and mental health evidence on which Mills principally relied to show her disability.

On the physical side, she claimed right knee pain based on a 1979 injury to the patella and said that the knee sometimes gave out. But the medical examination showed no tenderness and good stability, save for some unsteadiness in arising. The examining doctor found that there was no objective evidence of injury but that Mills "may have 'mild' arthritis of her right knee." The ALJ did not consider this a severe impairment whether considered alone or in conjunction with other symptoms. He also rejected Mills' claims of lower back pain as unsupported by any objective medical evidence.

As to mental health, Mills said that she was subject to panic disorder but a consulting psychologist said that her symptoms did not amount to panic disorder and the ALJ said that this claim was not established by objective evidence. The ALJ agreed that the evidence did show that Mills suffered from "a dysthymic disorder," a form of depression that is less than major; but the ALJ said that Mills was able to care for her personal needs and to manage her funds and do ordinary household tasks. He concluded that nothing prevented her from returning to a prior unskilled job as an assembly line worker or as a laundry worker in a motel.

Mills requested review by the Appeals Council, 20 C.F.R. § 416.1467, and submitted two new pieces of evidence. One was an October 8, 1998, "progress note" by Dr. Garnett; this physician confirmed the diagnosis of dysthymia, said that Mills was subject to panic disorder with agoraphobia, and prescribed an antidepressant. The other evidence was the report of a social worker, Ms. Joy, who saw Mills on November 30, 1998; Joy's assessment was that Mills was oriented and attentive but had poor memory and uncertain judgment. Joy recommended a psychiatric evaluation.

On January 21, 1999, the Appeals Council denied review, stating that the ALJ's decision stands "as the final decision" of the Commissioner of Social Security. 20 C.F.R. § 416.1481. The denial was signed by an administrative appeals judge who, on March 24, 1999, wrote Mills' lawyer a separate letter discussing the Garnett and Joy reports. The letter said that the findings in the reports were "consistent" with those in the record before the ALJ and "thus" did not provide a basis for disturbing the ALJ's decision. The letter said that the additional evidence would "be made part of the transcript in this case."

Mills filed a statutory review action in the district court, 42 U.S.C. § 405(g), where the matter was referred to a magistrate judge. In a recommended order on November 24, 1999, the magistrate judge urged that the Commissioner's decision be vacated and remanded for further proceedings. This recommendation rested primarily on the magistrate judge's view that the Garnett evidence created a conflict with the ALJ's view that Mills did not have a serious panic disorder and that a remand was needed to determine whether the panic disorder was present and, if so, whether its symptoms impaired Mills' capacity for work.

Alternatively, the magistrate judge said that the ALJ had erred in rejecting, without medical evidence, the earlier assessment of an examining physician consultant (Dr. Doane), that Mills "may" have knee problems sufficient to prevent standing for more than several hours at a time or walking more than a block without stopping; while the magistrate judge agreed that the condition was not shown to be severe, he deemed it relevant. Finally, the magistrate judge found that Mills had waived a claim that her prior work history was too sporadic to be used as a baseline in determining whether work was available to her.

On review of the Commissioner's objections, the district court rejected the magistrate judge's recommendation of a remand. Mills v. Apfel, 84 F. Supp. 2d 146, 148-49 (D. Me. 2000). In its decision, the district court said that the new evidence submitted to the Appeals Council could not be considered because that body's refusal to grant review left the ALJ's decision as the only one before the court and it had to be judged on the evidence before the ALJ. Id. at 148. As for the knee problem, the district court said that the Doane assessment was qualified ("may") and conflicted with the report of two non-examining doctors and, in any event, the ALJ could draw a common-sense inference that the condition was mild. Id. at 149. The court agreed with the magistrate judge that the claim of sporadic work history had been waived. Id. at 150.

On this appeal, Mills' counsel ably builds arguments around each of the three issues touched on by the district court. We begin with the most difficult, which concerns the evidence tendered to the Appeals Board after the ALJ decision. Because the Appeals Board "denied review" (at least nominally), the Commissioner says that we may review only the ALJ decision, judging it solely on the evidence presented to the ALJ. Four circuits have taken this position, at least in part; by contrast, five circuits say that judicial review tests all evidence submitted to the ALJ and to the Appeals Council, even if the latter declines to review the ALJ decision.²

For us, neither legal position, if treated as absolute, is entirely satisfactory. To weigh the new evidence as if it were before the ALJ would be, as one court fairly observed, a very "peculiar" enterprise, Riley, 18 F.3d at 622, and (to us) one that distorts analysis. The ALJ can hardly be expected to evaluate or account for the evidence that he never saw. At best, the reviewing court ends up asking and answering some other question without properly articulating it--which is a recipe for confusion (e.g., how likely is it that this evidence would alter the result if it had been before the ALJ).

The Commissioner has muddled the matter by directing that material new evidence may be provided to the Appeals Council and that such evidence becomes part of the record. 20 C.F.R. § 416.1470(b). Several circuits have relied on this regulation (or its counterpart in Part 404) to justify court review of the ALJ's decision based on the new evidence. E.g., O'Dell, 44 F.3d at 859. But this conflates the question whether the documents are part of "the record" with the question whether--if Appeals Council review is declined--they are part of the evidence against which the ALJ's decision should be tested in court. See Eads, 983 F.2d at 817. We doubt that the regulation was intended to resolve the latter issue.

Nor do we think that Mills' "review all the evidence" position is helped by Sims v. Apfel, 120 S. Ct. 2080 (2000). The Court there rejected a waiver claim and allowed a social security applicant to raise in court an issue not raised at the Appeals Council stage. Id. at 2086. But that is entirely different from failing to offer evidence in the first instance to the ALJ, which is far more disruptive of the review function. In any event, Justice O'Connor's "swing vote" in Sims rested on the distinct and narrow ground that the regulations there in question might have misled applicants as to the duty to raise issues in the Appeals Council. Id. at 2086-87 (O'Connor, J., concurring in part and concurring in the judgment). Thus, we agree with the Commissioner's view that we may review the ALJ decision solely on the evidence presented to the ALJ.

Yet we reject the other half of the Commissioner's...