Samuel C. EVANGELISTA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee

826 F.2d 136, 1987 U.S. App. LEXIS 10642, 18 Soc. Serv. Rev. 711
CourtCourt of Appeals for the First Circuit
DecidedAugust 11, 1987
Docket87-1058
StatusPublished
Cited by494 cases

This text of 826 F.2d 136 (Samuel C. EVANGELISTA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Samuel C. EVANGELISTA, Plaintiff, Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant, Appellee, 826 F.2d 136, 1987 U.S. App. LEXIS 10642, 18 Soc. Serv. Rev. 711 (1st Cir. 1987).

Opinion

*138 SELYA, Circuit Judge.

Claimant Samuel C. Evangelista appeals from a decision of the United States District Court for the District of Massachusetts. The district court refused to remand this social security case to the Secretary of Health and Human Services (Secretary) for the taking of new evidence, and dismissed the complaint. Evangelista argues that he satisfied the requirements for remand under 42 U.S.C. § 405(g). In conjunction therewith, he maintains that the Secretary’s decision denying him benefits was not supported by substantial evidence. So, he says, the district court erred. We disagree.

I

On March 8, 1978, Evangelista initiated an application for disability insurance benefits, alleging an inability to work since April 6, 1976 on' account of low back pain. Following a hearing before an administrative law judge (AU) at which Evangelista was represented by counsel, his claim was denied. The AU determined that, although Evangelista suffered from a severe medical impairment, his age, education, work experience, and residual functional capacity were such that he could not be considered as “disabled” within the meaning of the Social Security Act. See 20 C.F.R. § 404.1520(f). The claimant did not seek judicial review and the decision became final.

On May 18, 1983 Evangelista filed a second application in which he claimed an inability to work since July 22, 1982 because of an assortment of factors (including back pain, hypertension, and cardiac problems). Because his insured status had expired at the end of 1980, Evangelista bore the burden of establishing that he became disabled within the meaning of the Act prior to December 31, 1980. A hearing was held on December 1, 1983 before the same AU. Evangelista, notwithstanding his earlier experience with the system and a specific reminder by the AU that he was entitled to counsel, elected to act as his own advocate.

Evidence presented at the hearing disclosed that the claimant was then fifty-six years of age, weighed 228 pounds and had a tenth grade education. He worked in manufacturing as a warehouse manager and traffic manager for a quarter of a century (until 1974), and as part owner and chief operator of a gift shop between 1974 and 1978. He contracted a back problem in March 1976. Since then, Evangelista had been treated, both in and out of hospitals and clinics, for a wide array of physical ailments. He testified, inter alia, that persistent lumbosacral pain and breathing trouble prevented him from working since 1978. His wife added her version of the plaintiffs travails and a prodigious quantity of medical evidence was introduced. 1

Early in 1984, the AU issued a decision in which he determined that the claimant, though afflicted with a variety of ills, had no “impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulation No. 4.” Focusing on the decisive end-of-eligibility date (December 31, 1980), the AU opined that Evangelista “was probably not able to perform his past relevant work,” but that his subjective complaints during this span were overstated, that is, at variance with the objective medical data. The AU concluded that, at the end of 1980, Evangelista had both the residual functional capacity and the requisite skills to satisfy the physical demands of sedentary work. 2 Considering claimant’s age, edu *139 cation, and work experience, as well as his exertional capacity, and applying Rule 201.-11 of the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2 and 20 C.F.R. § 404.1569, the ALT ascertained that the appellant was “not disabled” within the meaning of the Act. This determination, the AU believed, withstood one final test: Evangelista’s nonexertional impairments did not significantly compromise his ability to perform the full range of sedentary work occupations.

After the Appeals Council denied claimant’s request for review of the decision, Evangelista secured counsel and claimed an appeal to the district court. In lieu of filing a motion for summary judgment as requested by the court, Evangelista sought to have the case remanded to the Secretary for the taking of new evidence pursuant to 42 U.S.C. § 405(g). In a thoughtful memorandum and order dated December 11, 1985, the district court denied the motion for remand and dismissed the appeal.

II

The controlling statute provides in pertinent part 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 prior proceeding____” 42 U.S.C. § 405(g). In this case, the new evidence, supposedly “material,” takes the form of an opinion rendered by Dr. Earl F. Hoerner, who describes himself as “a licensed physician specializing in orthopedics, musculoskeletal evaluation, rehabilitation and evaluation.” The doctor first appeared on the scene June 10, 1985, subsequent not only to the Secretary’s final decision, but some nine months after suit had been instituted in the district court. The inference is inescapable that appellant’s counsel retained him to evaluate the case. Based on the evidence contained in the administrative record and a physical examination which he conducted in June 1985 (including associated laboratory testing), Dr. Hoerner, in an affidavit appended to the motion for remand, stated that, since 1978, Evangelista had been:

unable to carry out work activities within his job specification and job demands. Also, because of the degree and extent of his permanent disability he demonstrates little if any work capacity that would enable him to transfer his educational and vocational skills and training to another vocational pursuit.

Evangelista’s claimed entitlement to a remand has two aspects. He must convince us, first, that the Hoerner evidence is both “new” and “material,” as those terms are used in the statute. Second, he must show that there was a legally adequate reason (presumably, his lack of legal representation) for neglecting to present expert evaluative opinion such as that belatedly supplied by Dr. Hoerner. In other words, Evangelista must demonstrate that Dr. Hoerner’s findings and conclusions comprise fresh (and important) grist for the Secretary’s mill, and that claimant’s pro se status constitutes the “good cause” which § 405(g) requires for the failure seasonably to have offered the evidence.

A. Newness/Materiality.

Under 42 U.S.C.

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826 F.2d 136, 1987 U.S. App. LEXIS 10642, 18 Soc. Serv. Rev. 711, Counsel Stack Legal Research, https://law.counselstack.com/opinion/samuel-c-evangelista-plaintiff-appellant-v-secretary-of-health-and-ca1-1987.