Smith v. Bowen

• Decision Date: 07 July 1986
• Docket Number: No. 85-8818,85-8818
• Citation: 792 F.2d 1547
• Parties: Annie Lois SMITH, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1547

792 F.2d 1547

14 Soc.Sec.Rep.Ser. 75

Annie Lois SMITH, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services,

Defendant-Appellee.

No. 85-8818.

United States Court of Appeals, Eleventh Circuit.

July 7, 1986.

Betty Walker-Lanier, Tifton, Ga., for plaintiff-appellant.

Jack Hood, Asst. U.S. Atty., Macon, Ga., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Georgia.

Before TJOFLAT and KRAVITCH, Circuit Judges, and DUMBAULD ^*, Senior District Judge.

CORRECTED

KRAVITCH, Circuit Judge:

Annie Lois Smith appeals from the district court's order granting a motion for summary judgment filed by the Secretary of Health and Human Services (the "Secretary"). The district court concluded that there is substantial evidence in the record to support the Secretary's determination that Smith is not entitled to Supplemental Security Income ("SSI") under 42 U.S.C. Secs. 1381 et seq., because she is not disabled within the terms of the Social Security Act. Also before this court is a motion by the Secretary to dismiss the appeal and remand the case to the Secretary for reconsideration of Smith's claim under new regulations applicable to cases involving claims of mental impairment. The motion was not filed until six days prior to the date on which oral argument before this court was scheduled to take place. Smith has filed a response opposing the Secretary's motion. In her brief filed prior to the Secretary's motion, however, Smith had requested as an alternative that we remand the case to the Secretary for consideration of new evidence that she had proffered to the district court, in the event we did not invalidate the Secretary's administrative decision outright. We believe that justice requires reversal of the district court and remand of the case to the Secretary to assess Smith's claim afresh in light of the new evidence. We set forth below the grounds upon which our decision is based ¹ in order to The parties' arguments in their briefs to this court are as follows. Smith's central claim is that she is suffering from disabling chronic low back pain resulting from degenerative disc disease and failed surgical back syndrome. Her principal legal argument concerns the appropriate standard for evaluating claims based on pain under Sec. 3(a)(1) of the Social Security Disability Benefits Reform Act of 1984 (the "DBRA"), Pub.L. No. 98-460, 98 Stat. 1794, 1799 (amending Sec. 223(d)(5) of the Social Security Act, 42 U.S.C. Sec. 423(d)(5) and Sec. 1382c(a)(3)(H)). Smith also contends that the Secretary erred in applying the medical-vocational guidelines to her claim, in failing to give individual consideration to her age as it affects her ability to adapt, and in failing to order a psychiatric consultative examination to fully and fairly develop the record. Finally, Smith argues that the district court erred in not remanding the case to the Secretary based on the new evidence she proffered to the district court. The Secretary argues that under the applicable pain standard, Smith has not provided adequate evidence to prevail. He asserts that pain is an exertional impairment to which the medical-vocational guidelines are properly applied, and that Smith has not established good cause to justify a remand of her case.

expedite the proceedings before the Administrative Law Judge (the "ALJ") on remand, and to clarify that our disposition of this appeal is not premised on the grounds presented by the Secretary.

The district judge's order stated that the only issue before him was whether the Secretary's decision was supported by substantial evidence. He summarized the evidence that was before the ALJ in one paragraph, concluded that the decision of the Secretary was adequately supported, and granted summary judgment to the Secretary.

Smith correctly contends that judicial review of the substantial evidence necessarily includes a determination of whether the Secretary applied the proper legal standard in evaluating a claimant's case. The Secretary's repeated statement in his brief and at oral argument, that the only issue before the courts is whether the Secretary's decision is supported by substantial evidence, is inaccurate. In Wiggins v. Schweiker, 679 F.2d 1387, 1389 (11th Cir.1982), this court responded to a similar error by the Secretary. We stated that while our review of the Secretary's factual findings is limited to determining whether those findings are supported by substantial evidence, our review of his conclusions of law is not so limited. We again:

emphasize this point because of an apparent misperception of our role reflected in the brief of the appellee [Secretary]. The appellant has clearly raised several objections to the legal standards employed by the ALJ, yet the appellee's brief argues that the only issue before the court is whether there is substantial evidence in the record to support the decision of the ALJ. Where an error of law has been made that might have affected the disposition of the case, this court cannot fulfill its statutory and constitutional duty to review the decision of the administrative agency by simply deferring to the factual findings of the ALJ.

Wiggins v. Schweiker, 679 F.2d at 1389 n. 3.

Hence, we find the district court's order inadequate in that it does not address legal issues raised by Smith--the standard for assessing allegations of pain, or the legality of applying the medical-vocational guidelines to this case. It fails to address Smith's proffer of new medical evidence and request for a remand. Furthermore, the district court's order focuses exclusively on the evidence that was before the ALJ and does not reflect any view on the Appeals Council's decision that the new evidence presented to it did not provide a basis for changing the ALJ decision. Because the district court failed to resolve the legal issues in this case, we conclude that remand of this case is required.

I. REMAND TO THE SECRETARY

We first address the basis of Smith's request for a remand of her case, and then turn to the grounds set forth by the Secretary in his motion.

A. The Claimant's New Evidence

The Secretary's denial of Smith's claim became a final administrative decision in November, 1984, when the Appeals Council denied Smith's request for review of the ALJ's decision. In December of 1984, Smith was hospitalized for four days during which she underwent a neurolysis and laminectomy. Smith attached to her memorandum in response to the Secretary's answer to her complaint in district court, copies of the physician reports of this hospitalization and notes on post-operative visits, the evidence being submitted for the court's consideration of remand of the case. The district court granted the Secretary's motion for summary judgment without mentioning Smith's request for a remand.

As we have stated previously, "the judicial determination of whether remand is necessary is a de novo proceeding." Cherry v. Heckler, 760 F.2d 1186, 1194 (11th Cir.1985). In that case, we also set forth the standard for such a determination. The claimant must establish that: (1) there is new, noncumulative evidence; (2) the evidence is "material," that is, relevant and probative so that there is a reasonable possibility that it would change the administrative result, and (3) there is good cause for the failure to submit the evidence at the administrative level. See also Wright v. Heckler, 734 F.2d 696 (11th Cir.1984).

We find that the evidence that Smith proffered to the district court is not cumulative in that it reflects the results of new surgery which she underwent. Smith has established good cause for failure to submit the evidence at the administrative level because it did not exist at that time. Cherry v. Heckler, 760 F.2d at 1192. The hospitalization and surgery occurred during the course of Smith's ongoing effort to seek medical treatment to alleviate her pain. The new evidence is relative and probative to the extent that it relates to the physical impairment which Smith alleges gives rise to her disabling pain. Whether there is a reasonable possibility that it would change the administrative result is not as apparent. Each time a claimant undergoes new medical treatment, the results of that treatment do not automatically necessitate a remand of the case. We find that on the facts of this case, however, there is a reasonable possibility that the new evidence would alter the decision because it relates to the dispositive issue in the case. It may substantiate Smith's contention that the alleged organic medical condition that gives rise to her pain persists beyond her earlier surgery and treatments. The results of this recent treatment and examination might provide Smith with medical signs and findings to establish the existence of an objective medical impairment that could reasonably be expected to produce the pain of which she complains. See Landry v. Heckler, 782 F.2d 1551, 1553 (11th Cir.1986). There is also a reasonable possibility that this evidence of the claimant subjecting herself to continued medical treatment of a serious nature would effectively counter the impression of malingering expressed by the ALJ as justification for questioning the credibility of the claimant's description of the severity of her pain. Finally, there is a reasonable possibility that this evidence, when considered in combination with the other recent evidence of her morphine epidural block and electroshock treatments which was not adequately evaluated by the Secretary as discussed below, would change the administrative outcome. Having met the Cherry criteria, Smith is entitled to a remand for the consideration by the Secretary of the new evidence.

Our decision to remand the case is reinforced by Smith's assertion that the record developed by the ALJ at her hearing was inadequate as to her possible mental health problem. Smith also had raised this charge...