Falge v. Apfel

[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
FILED
------------------------------------------- U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 97-3279 08/14/98
Non-Argument Calendar THOMAS K. KAHN
CLERK
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D. C. Docket No. 95-760-Civ-T-99E
JAY C. FALGE, JR.,
Plaintiff-Appellant,
versus
KENNETH S. APFEL, Commissioner,
Social Security Administration,
Defendant-Appellee.
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Appeal from the United States District Court
for the Middle District of Florida
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(August 14, 1998)
Before EDMONDSON, BLACK and HULL, Circuit Judges.
EDMONDSON, Circuit Judge:
Jay Falge, Jr. appeals the district court’s order affirming
the Commissioner’s denial of Falge’s applications for
disability benefits, 42 U.S.C. § 405(g), and supplemental
security income, 42 U.S.C. § 1382(c)(3). We affirm.
Background
Falge applied for disability benefits and supplemental
security income after an automobile accident, that occurred on
18 February 1992, allegedly left him with neck and back injuries.
Falge claims that the accident left him with a pinched nerve in
his neck and bulging discs in his back, causing severe
headaches.
Before the accident, Falge worked as an air conditioner
mechanic and as a sheet metal worker. Falge has a high school
2
education and four years of vocational training. At the time of
the accident, Falge was 48 years old.
After the initial denial of Falge’s application for benefits,
Falge requested a hearing. A hearing was scheduled before an
Administrative Law Judge (ALJ). As a result of the hearing, the
ALJ decided that Falge was not “disabled” as defined in the
Social Security Act and, thus, that Falge was not entitled to the
requested benefits.1 Falge requested review of this decision by
the Appeals Council of the Social Security Administration (AC).
The AC denied review of Falge’s claim.2
1
The ALJ determined that Falge could perform sedentary work
activities, precluding a finding of disability. Sedentary work is work
that involves lifting no more than 10 pounds at a time, sitting, and
occasional walking and standing. See 20 C.F.R. § 404.1567.
2
The AC has discretion not to review denials of benefits by ALJs. See
20 C.F.R. § 404.967 (“The Appeals Council may deny or dismiss the
request for review, or it may grant the request and either issue a decision
or remand the case to an administrative law judge.”); 20 C.F.R. §
416.1467 (same).
3
Falge states in his brief that, at the hearing before the ALJ,
no vocational or medical expert testimony about Falge’s
physical capabilities for employment was presented. But many
medical records and written opinions documenting treatment
and diagnosis of Falge’s medical condition (including some
physical limitations due to the injuries) were provided to the
ALJ. After the ALJ’s decision -- but before the AC’s denial of
review -- Falge produced an additional doctor’s report, by Dr.
Inga, describing Falge’s physical limitations.3
3
Dr. Inga was one of many of Falge’s treating physicians. In
general, Dr. Inga’s report stated that Falge was limited in his lifting
and carrying abilities and that activities such as climbing, balancing,
stooping, crawling and kneeling should be done by Falge only
occasionally. Two earlier reports prepared by Dr. Inga were
presented to the ALJ.
4
The AC, after considering the new evidence of Dr. Inga’s
report,4 denied review. The district court then affirmed the
ALJ’s decision to deny benefits.
Discussion
A “final” decision of the Secretary of the Social Security
Administration is subject to judicial review. See 42 U.S.C. §
405(g). “When the Appeals Council grants review, the Appeals
Council decision is reviewable as the final decision of the
Secretary[, but w]hen the Appeals Council denies review, the
decision of the ALJ becomes the final decision of the
Secretary.” Keeton v. Department of Health and Human Servs.,
21 F.3d 1064, 1066 (11th Cir. 1994).
4
New evidence is specifically permitted to be provided to the AC if
the evidence is both new and material. See 20 C.F.R. § 404.970(b).
This new evidence is then evaluated by the AC to determine whether a
basis exists for changing the ALJ’s decision.
5
An ALJ’s decision will be reversed only if the decision is
not supported by substantial evidence. See Barron v. Sullivan,
924 F.2d 227, 229-30 (11th Cir. 1991). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 91
S.Ct. 1420, 1427 (1971) (quoting Consolidated Edison Co. v.
NLRB, 59 S.Ct. 206, 217 (1938)). In other words, substantial
evidence is “more than a mere scintilla.” Id. We review de novo
the district court’s judgment that substantial evidence supports
the ALJ’s decision.
When evidence has been presented to the AC that was not
presented to the ALJ (new evidence), we have already
concluded that the new evidence is part of the record on
appeal.5 See Keeton, 21 F.3d at 1066-67. But until now, we
5
At least one circuit, the Sixth Circuit, excludes this new evidence
from the record entirely. See Cotton v. Sullivan, 2 F.3d 692, 696 (6th
Cir. 1993); see also Willis v. Secretary of Health and Human Servs.,
727 F.2d 551, 553-54 (6th Cir. 1984) (suggesting the record is closed
at the ALJ level when the AC denies review).
6
have not directly answered the next question: What
consideration should be afforded that new evidence by
reviewing courts when the AC denied review of the ALJ’s
decision?
The circuits addressing this question have followed
different approaches. Some circuits have concluded that
courts should review the ALJ’s decision for substantial
evidence “on the record as a whole, including the new evidence
submitted after the determination was made [by the ALJ].” See,
e.g., Riley v. Shalala, 18 F.3d 619, 622 (8th Cir. 1994); O’Dell v.
Shalala, 44 F.3d 855, 859 (10th Cir. 1994). But those circuits do
recognize the difficulty posed by reviewing evidence never
presented to the ALJ: “Of necessity, that means that we must
speculate to some extent on how the administrative law judge
would have weighed the newly submitted reports if they had
been available for the original hearing. We consider this to be
a peculiar task for a reviewing court.” Riley, 18 F.3d at 622. We
7
agree that this speculation would be a peculiar task: reviewing
courts would be placed in the unfamiliar position of acting as
fact finders.
We think the better approach is the approach taken by the
Seventh Circuit in Eads v. Secretary of Dep’t of Health and
Human Servs., 983 F.2d 815 (7th Cir. 1993); and we adopt today
that general approach as the law of this circuit. The Seventh
Circuit wrote these words about new evidence:
[T]he new evidence is a part of the administrative
record that goes to the district court in the judicial
review proceeding, and then to this court if there is an
appeal. It might seem therefore that the district judge
and we would be free to consider the new evidence
that was before the Appeals Council in deciding
whether the decision denying benefits was supported
by the record as a whole. And of course this is right
when the Council has accepted the case for review
and made a decision on the merits, based on all the
evidence before it . . . [but i]t is wrong when the
Council has refused to review the case. For then the
decision reviewed in the courts is the decision of the
administrative law judge. . . . The correctness of that
decision depends on the evidence that was before
him. . . . He cannot be faulted for having failed to
weigh evidence never presented to him . . . .
8
Eads, 983 F.2d at 817.6 Thus, this will be our rule: when the
AC has denied review, we will look only to the evidence actually
presented to the ALJ in determining whether the ALJ’s decision
is supported by substantial evidence.
In different kinds of cases, however, we will consider
evidence submitted only to the AC. For example, 42 U.S.C. §
405(g) permits courts to remand a case to the Social Security
Administration for consideration of newly discovered evidence.
To succeed on a claim that remand is appropriate, Falge would
have had to show that (1) new, noncumulative evidence exists,
6
Keeton cites Eads as one of the circuits holding “that the
administrative record does not include the new evidence first
submitted to the Appeals Council.” Keeton, 21 F.3d at 1067 (citing
983 F.2d at 817-18). But Keeton then quotes the passage of Eads
that explains that “the new evidence is a part of the administrative
record that goes to the district court in the judicial review
proceeding, and then to this court if there is an appeal.” Id.(quoting Eads, 983 F.2d at 817). A close reading of Eads shows that
the Seventh Circuit includes the new evidence in the administrative
record going to reviewing courts, but the Seventh Circuit does not
consider that new evidence presented only to the AC when reviewing
the ALJ’s decision. Eads, 983 F.2d at 817-18.
9
(2) the evidence is material such that a reasonable possibility
exists that the new evidence would change the administrative
result, and (3) good cause exists for the applicant’s failure to
submit the evidence at the appropriate administrative level.
See Cannon v. Bowen, 858 F.2d 1541 (11th Cir. 1988); see also
Keeton, 21 F.3d at 1067 (court may remand to Secretary if new
evidence is material and good cause exists for failure to
incorporate the evidence in the record during proceedings
before the ALJ).7 But, Falge has provided no reason -- no good
cause -- why Dr. Inga’s report was not made available during
proceedings before the ALJ.8
7
In Keeton, the applicant appealed the AC’s characterization of
his new evidence as cumulative. Keeton remands for the district
court to apply the test for 405(g) remand because “[i]n reviewing the
decision of the Appeals Council, the district court erroneously
believed it could consider only evidence presented to the ALJ.” 21
F.3d at 1068 (emphasis added). Keeton expressly declines to address
the applicant’s other challenges to the AC’s denial of review and the
ALJ’s denial of benefits. Id.Dr. Inga’s new report is dated 11 May 1994 (before the
8
hearing), but the report does not seem to have actually been
10
We accept that, if an applicant can show good cause for
his failure to introduce evidence during a hearing before the
ALJ (even if the evidence was available to the applicant before
the ALJ’s decision) courts may consider that evidence in
deciding whether the case should be remanded for further
administrative proceedings to include the new evidence. But
again, that kind of case is not before us. Falge has neither
shown nor alleged good cause for his failure to introduce Dr.
Inga’s May 1994 report during the hearing before the ALJ.
And, we can think of another kind of case where we will
consider evidence submitted only to the AC. “When the
Appeals Council refuses to consider new evidence submitted
to it and denies review, that decision [the denial of review] is .
. . subject to judicial review because it amounts to an error of
prepared until December 1994 (after the ALJ decision). The
opinions set out in the report, however, seem to have been
based on medical examinations and tests conducted before
the ALJ rendered his decision.
11
law.” Keeton, 21 F.3d at 1066. To review the AC’s denial of
review, courts will have to look at the pertinent evidence to
determine if the evidence is new and material, the kind of
evidence the AC must consider in making its decision whether
to review an ALJ’s decision. See 20 C.F.R. § 404.970(b)
(“Appeals Council shall evaluate the entire record including the
new and material evidence submitted to it if it relates to the
period on or before the date of the administrative law judge
hearing decision.”) (emphasis added); 20 C.F.R. § 416.1470(b)
(same).
In this case, however, Falge does not seem to appeal the
AC’s decision to deny review. Instead Falge appeals only the
ALJ’s decision to deny benefits and the district court’s
affirmance of that denial, claiming the decision is not supported
by substantial evidence. So, we need not consider the new
evidence of Dr. Inga’s report in the light of the AC’s denial of
review. In other words, the issue before us is not whether the
12
AC correctly determined if the evidence was new and material,9
but instead whether the ALJ’s decision is supported by
substantial evidence.
Thus, we will look at only the evidence that was before the
ALJ. Doing so, we conclude that the ALJ’s decision that Falge
can perform a full range of sedentary work activity is supported
by substantial evidence. Although Falge was somewhat
physically limited,10 much medical evidence existed to support
the ALJ’s finding that Falge could still perform sedentary work.
At least 4 doctors, other than Dr. Inga, evaluated Falge’s
condition. Those doctors placed no limitations on Falge’s work
9
This issue was probably not raised on appeal, and if raised
would lack merit, because the record seems to show
affirmatively that the AC did consider this evidence when it
denied review.
One doctor suggested limiting Falge’s activity to light desk work
10
with no lifting over 10 pounds and with no extreme positions of the
head. Suggestions like this one are entirely consistent with a
determination that Falge can perform a full range of sedentary work
and, thus, that Falge does not suffer from a disability.
13
activities that are inconsistent with a finding that Falge was
able to perform sedentary work. The only arguably contrary
evidence included reports of nonmedical doctors, a
chiropractor and a PhD. The ALJ was permitted to accord less
weight to chiropractors, and other nonmedical doctors, than to
medical doctors. And, although we do not consider the May
1994 report of Dr. Inga, two prior reports from Dr. Inga were
before the ALJ and were consistent with the ALJ’s conclusion
that Falge suffered from no disability. We conclude that the
ALJ’s decision is supported by substantial evidence.
AFFIRMED.
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