DocketNumber： 94-1609
Filed Date： 12/28/1994
Status： Precedential
Modified Date： 9/21/2015
December 28, 1994 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
____________________
No. 94-1609
JAIME DELGADO,
Plaintiff, Appellant,
v.
SECRETARY OF HEALTH AND HUMAN SERVICES,
Defendant, Appellee.
____________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Carmen C. Cerezo, U.S. District Judge] ___________________
____________________
Before
Cyr, Circuit Judge, _____________
Bownes, Senior Circuit Judge, and ____________________
Stahl, Circuit Judge. _____________
____________________
Fabio A. Roman Garcia on brief for appellant. _____________________
Guillermo Gil, United States Attorney, Maria Hortensia Rios, _____________ ______________________
Assistant United States Attorney, and Robert M. Peckrill, Assistant ___________________
Regional Counsel, Department of Health & Human Services, on brief for
appellee.
____________________
____________________
Per Curiam. Plaintiff-appellant Jamie Delgado appeals __________
from a district court judgment affirming the decision of the
Secretary of Health and Human Services denying his
application for disability insurance benefits. For the
reasons that follow, we vacate the judgment below and remand
the case.
I.
Delgado was born on June 13, 1944. He completed
approximately three years of school, but cannot read or
write. For approximately twenty-five years, Delgado worked
at La Estrella bakery, gradually progressing to the jobs of
baker and confectioner. In 1986, he stopped working when the
owner of the bakery died and the bakery shut down.
Thereafter, he worked for a few weeks at another bakery, but
was dismissed because his "[right] foot got swollen, and [he]
missed work . . . " He has not worked since then, and he
alleges a disability onset date of December 30, 1986.
Delgado was insured through December 31, 1991.
On September 21, 1989, Delgado filed an application for
benefits alleging that he is disabled due to a right leg
injury. In a subsequently filed disability report, Delgado
alleged that after breaking his ankle on February 2, 1984, he
could no longer work full days at the bakery. He complained
that eventually he had to stop working entirely because his
leg swells when he stands up for long periods of time. He
-3-
also complained that since the accident, he has experienced
pain and numbness in his right hand.
The Social Security Administration denied Delgado's
application initially and on reconsideration. On October 5,
1990, Delgado obtained a hearing before an Administrative Law
Judge (ALJ). Delgado and a medical expert testified. On
October 24, 1990, the ALJ determined that Delgado is not
disabled. The Appeals Council, however, accepted review and
remanded the case to the ALJ for further proceedings. A
second hearing, held on October 22, 1991, included the
testimony of a vocational expert. Delgado was represented
by counsel at both hearings.
The medical record before the ALJ is well-summarized in
his reports. Briefly, Delgado suffered a crush injury to his
right hand, in 1969, which resulted in some loss of motion.
On February 9, 1984, Delgado slipped at work, suffered an
undisplaced spiral fracture in his right ankle, and was
treated at El Buen Hospital under the auspices of the State
Insurance Fund. Records from the Fund disclose that on
January 19, 1990, Delgado was examined by a peripherovascular
surgeon in connection with complaints of pain and swelling in
his right ankle. The examination revealed a well-oriented,
middle-aged man, in no acute distress, and without
significant edema.
-4-
On November 13, 1989, Delgado was seen by Dr. Paul
Kindy, a consultative orthopedic physician. He noted that
Delgado complained of pain and swelling in the right ankle,
pain in both knees, and weakness and pain in the right hand.
The examination revealed some loss of motion in the right
wrist and thumb, as well as in the right ankle. Both knees
had a full range of motion and good strength. Delgado's
ability to squat, however, was limited to fifty percent of
normal due to ankle and knee pain. The consulting physician
diagnosed a crush injury deformity of the right hand with
partial wrist and thumb motion loss; a healed fracture in the
right ankle with partial loss of motion and weakness; and
paint and crepitus (a crackling sound) in both knees.1
Delgado testified that if he stands up for a few hours,
he experiences pain and swelling in his right ankle and leg,
as well as in both knees. The swelling is alleviated if he
lies down. Although the pain in his leg is "terrible," he
obtains some relief when he lies down. He also takes Tylenol
or Panadol to relieve the pain. He can walk for up to one-
half hour and can sit for up to an hour and a half. During
the day, he walks to the park, talks to neighbors, and
____________________
1. The record also contains two assessments of Delgado's
residual functional capacity prepared by non-examining
medical consultants. These consultants concluded that
Delgado has manipulative and postural limitations, but can
lift or carry fifty pounds occasionally and twenty-five
pounds frequently, can stand or walk about six hours in a
workday, and can sit about six hours in a workday.
-5-
watches television or listens to the radio. Delgado
testified that he sometimes does chores such as washing
windows or weeding, but that he is bothered by pain and
swelling in his legs the next day.
The medical expert (ME) opined that Delgado's condition
does not meet or equal any of the listed impairments. The ME
testified, however, that Delgado needs to alternate positions
and that his hand injury limits his ability to perform fine
manipulative activities, such as jewelry work. Based on
Delgado's subjective allegations of knee pain, the ME further
testified that Delgado is limited to lifting or carrying
twenty pounds. The ME also observed that the medications
Delgado testified he takes to relieve pain are for light to
moderate pain.
The Vocational Expert (VE) identified various jobs which
Delgado could perform in the clothing and pharmaceutical
industries, including spot cleaner, garment bagger, garment
inspector, bottle washer, and box assembler. According to
the VE, these jobs are light or sedentary work, do not
require fine manipulative ability, and permit alternation of
positions at will. The VE also testified that mild to
moderate pain would not interfere with Delgado's ability to
perform these jobs.
Following the second hearing, the ALJ again determined
that Delgado is not disabled. The ALJ found that Delgado's
-6-
musculoskeletal condition is severe and that he is unable to
perform his past work. However, the ALJ concluded that
Delgado has the residual functional capacity to perform the
full range of light or sedentary work, reduced by limitation
of motion of the right hand or wrist. The ALJ further
concluded that Delgado's complaint of pain is not credible to
the degree of severity alleged. Finally, the ALJ ruled that,
based on the testimony of the vocational expert and
application of the Grid, Delgado is not disabled at step five
of the sequential analysis because there are other jobs that
he can perform.
The Appeals Council denied review on September 23, 1992.
Delgado appealed to the district court and requested a remand
to the Secretary for the taking of new evidence pursuant to
42 U.S.C. 405(g). The additional evidence proffered to the
district court discloses that after the ALJ's determination
of no disability, Delgado was diagnosed as suffering from
rheumatoid arthritis in his hands, hips, knees, ankles, and
feet. Dr. Jose Castro-Rodriguez, who saw Delgado between
February 12, 1992 and April 29, 1992, treated Delgado with
anti-inflammatory drugs. Dr. Roberto Rivera-Rivera, who
treated Delgado between May 13, 1992 and September 9, 1992,
also employed drug therapy, but noted poor response. On
September 23, 1992, Delgado was seen by an orthopedic
surgeon, Dr. Juan J. Bibiloni-Rodriguez. In a letter dated
-7-
November 12, 1992, Dr. Bibiloni-Rodriguez reported that
Delgado's knees, hips, and right ankle required surgical
intervention. Dr. Bibiloni-Rodriguez also opined that
Delgado was totally disabled. Hospital records, as well as
the surgeon's progress notes, reveal that Delgado underwent a
left total knee replacement on or about November 9, 1992.
Delgado's prognosis upon leaving the hospital was good. On
February 11, 1993, Delgado underwent a right total knee
replacement.
The district court affirmed the Secretary's decision.
This appeal followed.
II.
Delgado raises two arguments. First, he contends that
the Secretary failed to adequately develop the record by
ordering tests which would determine the cause of his knee
complaints. Second, he argues that the district court erred
in failing to remand the case in light of the proffered new
evidence. Because we are persuaded that a remand was
required for consideration of the proffered evidence, we need
not address the first issue.
The controlling statute provides 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
-8-
prior proceeding . . . " 42 U.S.C. 405(g). A remand is
appropriate when "further evidence is necessary to develop
the facts of the case fully . . . and consideration of it is
essential to a fair hearing." Evangelista v. Secretary of ___________ _____________
Health & Human Services, 826 F.2d 136, 139 (1st Cir. 1987). _______________________
We have clarified that a remand is indicated when, "were the
proposed new evidence to be considered, the Secretary's
decision ``might reasonably have been different.'" Id. at 140 __
(quoting Falu v. Secretary of Health & Human Services, 703 ____ ______________________________________
F.2d 24, 27 (1st Cir. 1983)).
The additional evidence is plainly new. The ALJ did not
have before him evidence that Delgado was suffering from
rheumatoid arthritis, much less that his condition required
surgical intervention. We also find that the "good cause"
requirement is met because the evidence was unavailable to
incorporate into the administrative proceedings. See Wilson ___ ______
v. Secretary of Health & Human Services, 733 F.2d 1181, 1182 ____________________________________
(6th Cir. 1984); Bilodeau v. Shalala, 856 F. Supp. 18, 20-21 ________ _______
(D. Mass. 1994).
Finally, we are persuaded that the proffered evidence is
material. The diagnosis of rheumatoid arthritis, as well as
evidence that Delgado's condition degenerated to the extent
of requiring surgery, shed new light on the symptoms Delgado
alleged and the seriousness of his condition as it existed at
the time the ALJ made his determination. See Lisa v. ___ ____
-9-
Secretary of Health & Human Services, 940 F.2d 40, 44-45 (2d _____________________________________
Cir. 1991) (evidence that claimant suffered from
fibromyalgia, a rheumatic disease, was material because it
suggested that claimant had an impairment substantially more
severe than previously diagnosed). Most notably, a
significant part of Delgado's claimed disability consisted of
his complaint of "terrible" pain. The ALJ concluded that
this complaint was not fully credible because, among other
reasons, it was not supported by the evidence of record. The
new evidence may alter this conclusion. See Geigle v. ___ ______
Sullivan, 961 F.2d 1395, 1397 (8th Cir. 1992) (MRI test ________
result, which showed that claimant had herniated disc, was
material because it provided objective medical support for
claimant's subjective complaints); Borders v. Heckler, 777 _______ _______
F.2d 954, 955-56 (4th Cir. 1985) (evidence of post-hearing
operation on claimant's back relevant to question whether
back condition was disabling, as well as supportive of
subjective claim of disabling pain).
We conclude that the proffered records must be presented
to the Secretary to afford her the opportunity to reassess
Delgado's application. Accordingly, the judgment of the
district court is vacated and the case remanded to the
district court with directions to enter an order remanding to
the Secretary for further proceedings consistent with this
opinion. Vacated and remanded. _______ ________
-10-
Madelyn C. GEIGLE, Appellant, v. Louis W. SULLIVAN, M.D., ... , 961 F.2d 1395 ( 1992 )
Marilyn LISA, Plaintiff-Appellant, v. SECRETARY OF the ... , 940 F.2d 40 ( 1991 )
Samuel C. EVANGELISTA, Plaintiff, Appellant, v. SECRETARY ... , 826 F.2d 136 ( 1987 )
Lamar WILSON, Plaintiff-Appellant, v. SECRETARY OF HEALTH ... , 733 F.2d 1181 ( 1984 )