Frank Aubeuf v. Richard Schweiker, Secretary of Health and Human Services

APPENDIX AUBEUF, Plaintiff-Appellant,

Frank SCHWEIKER, Secretary

Richard Services,

Health and Human

Defendant-Appellee.

No. Docket 80-6190.

United Appeals, States Court of

Second Circuit.

Argued March 1981. 4,May

Decided

John Hogg, Hamilton, Y., S. N. for plain- tiff-appellant. Jones,

Nancy Atty., S. Asst. U. S. for the Y., N. D. Syracuse, Y., of N. N. George H. Lowe, Atty., U. S. for the N. D. of New York, Y., Syracuse, N. for defendant-appel- lee. MESKILL,

Before OAKES Circuit Judges, SAND,* Judge. District SAND, Judge. District appeals Frank Aubeuf from a judgment of the United States District Court for the York, Northern District of New Howard G. Munson, J., affirming the decision of the Secretary of Health and Human Services that Mr. Aubeuf is not entitled to disability benefits under 42 to supple- U.S.C. mental security income benefits under 42 1382c(a)(3)(A). U.S.C. argues Mr. Aubeuf that there sup- is no substantial evidence to port findings of the Administrative (ALJ) Law Judge suffering that he is not from disabling pain and that he retains the capacity engage functional in sustained work activity security person. as a We find, alia, applied inter the ALJ an legal erroneous standard and reverse with instructions remand matter Secretary for proceedings further in accord- ance with opinion. Background

I. August In applica- Mr. Aubeuf filed disability supple- tions for insurance and security mental appli- income benefits. His denied, and, hearing cations were after a * Sand, York, sitting by designation. Honorable Leonard B. United States Dis- Judge trict for the Southern District of New Council, Mr. Appeals and review Aubeuf’s primary treating physician Secretary affirmed that denial. Mr. Au- injury since his has been Dr. Brod.1 Dr. expert testified at the beuf and a vocational 19,1975 Brod’s office notes from December reports and office notes of through April 1978 were submitted to physicians various were submitted. the ALJ. Dr. early Brod’s notes indicate consistent back pain, hospitaliza several Aubeuf, year functionally a 33 old tions, and a course of treatment consisting man, injured August, illiterate his back in therapy, medication and exer lifting 1975 while a railroad tie in the February cise. In his 1976 through Au employment landscape course of his as a gust notes, Dr. Brod refers to Mr. hospitalized foreman. He was and under- walking program, pursuant therapy went exercise in the care of Dr. which he walking up to 15 per miles spring Brod. In the of 1976 he returned to However, day.2 Dr. Brod’s notes in Octo landscaping work. Mr. Aubeuf soon left ber, 1976 and job thereafter indicate personal this because of a that Mr. conflict and generally deteriorated, fear Aubeuf’s condition reinjuring of his back. He then plating worked in a with a few factory periods improvement.3 where he rein- No jured lifting heavy his back a rod. He was mention is made of walking therapy after again hospitalized 27, and unable to August work. Dr. 1976. Dr. Brod ultimately con again prescribed Brod program cluded, 21, exer- July 1977, on that the years two walking. cise and therapy conservative had been ineffec tive, and that possibility myelo of a 1976, September, In Mr. Aubeuf entered gram, scan, a bone laminectomy and a a vocational rehabilitation program and explored. should be worked as a cook in á restaurant. How- ever, Mr. job December, Aubeuf left this 1, 1977, On November Mr. Aubeuf was temperature because the differential admitted to hospital myelogram for a between the kitchen, cooler and the and the Demoral, but had a bad reaction to a shot of need to stand at a (e. table and bend over discharge. myelogram led to his g., peel potatoes) to aggravated his back performed 7, 1977, was on November injury and pain. caused him severe 29, 1977, on November Dr. Brod noted that it indicated a defect at the facet.

Mr. L5-S1 Aubeuf then moved to Texas in the Yuan, hope Dr. Brod consulted with Dr. re- that warmer climate would be 12, ported January they beneficial to on 1978 that were him. He factory worked in a time, agreement surgery for a short but that was not indi- testified that he left job that possibility because cated “because of the remote of continued pain. back relieving pain significantly Aubeuf then with sur- returned to New York. gery,” and that alternate treatments should At Mr. Aubeuf testified that explored. since injury he has been in constant pain, that he experienced has Dr. Smyth intermittent examined Mr. Aubeuf on No- momentary paralysis waist, contrary below the vember 1977 and reached a the treatments he surgery. has received have conclusion with to He also pain. alleviated his pain found that Mr. Aubeuf’s had worsened 1. Mr. walking therapy Aubeuf was treated Dr. Hessman 2. Dr. referred to in a Brod also reported telephone report Security while he was in Texas. Dr. Hessman to the Social Admin- therapy July istration 1976. and medication were on in- diagnosed strain, spine effective. He an “LS telephone report Security In to the Social pulposes.” R/O herniated nucleus He had rec- 2, 1977, September Dr. Brod myelogram Administration on possible ommended a laminec- period tomy, in which referred to Mr. Aubeuf’s but Mr. Aubeuf returned to New York. improved condition had and was in a state of pain Dr. Hessman found and limitation of mo- However, remission. as Dr. Brod’s October spine, point, neurolog- tion of the but at that no indicate, subsequent reports 1977 and Mr. Au- findings. ical significantly beuf’s after condition deteriorated September telephone report.

Ill region myelogram since the and that Mr. Aubeuf where Mr. Aubeuf resides. The vo- slight stoop”; expert “with a forward walked cational was next asked to assume slight spine of the “there is tilt lumbar that Mr. Aubeuf suffering from lower right”; pain that “all movements of lum- back which would interfere with his markedly are restricted and on spine bar to concentrate peri- for continuous degrees experiences bending forward 15 he od of eight hours. He responded that right thigh”; and that “there nothing he referred could do.” The voca- positive straight leg examination revealed tional also testified that Mr. Aubeuf raising atrophy sensory if, some im- could not work in addition to his other pairment. Smyth limitations, Dr. that Mr. subject concluded he was to momentary disabled, was “partially Aubeuf moderate attacks paralysis below the waist. degree,” marked in and that after a decision, In his portions ALJ reviewed laminectomy he would within one and a reports and the testimony, years permanently partially half still be dis- and found that Mr. Aubeuf is not so abled, degree. but inmild prevent disabled as him from performing gainful activity.

Mr. Aubeuf was examined Dr. Kal- The ALJ found that Mr. February marides on 1978. Dr. Aubeuf cannot Kalmar- return to his former positive employment; that he leg raising ides found sit cannot for straight time; prolonged degrees periods right degrees on side and 20 that his ability on limited; side, bend is he blurring left and “definite retains a normal range hands; of motion of the arms right L4-L5 facet in oblique the view with and that there is no ability . .. restriction on his evidence of of joint space loss the in concluded, to walk. The ALJ on based the area.” He “blurring also found of the expert’s testimony, vocational joint that Mr. Au space at the facet between L3 and L4 beuf capable working security is of as a in the oblique left view.” Dr. Kalmarides’ person,4 and therefore denied Mr. Aubeuf’s opinion was that Mr. Aubeuf suffering was applications. from “spondylitis Marie-Strumpell of type.” Dr. Kalmarides also noted Mr. Au- The ALJ’s decision became a final deci- pain, beuf’s severe back recommended sion of when Appeals against surgery without further conserva- Council denied Mr. Aubeuf’s for request therapy, tive and considered Mr. Aubeuf as review. Mr. sought Aubeuf then review “temporary totally disabled.” the district court pursuant to 42 U.S.C. 405(g). The district court found Sec-

At expert, the vocational retary’s findings supported by substantial exhibits, reviewing after asked evidence, granted Secretary’s motion Mr. perform any whether Aubeuf could for summary judgment, and Mr. Au- denied jobs, assuming impairment his back beuf’s cross motion. ability limits severely, his to bend limits his ability sit prolonged periods, for but does II. Discussion ability not his restrict use his arms and hands or his walk. The It vocational is well established burden of expert answered that claimant, Aubeuf not proving disability is on 42 employment, his return to former but 423(d)(5); Harris, could U.S.C. Parker v. 626 work a cook or security person. (2d as as a He 1980); F.2d 231 Cir. v. Gold Secre- a security person described duties of tary H.E.W., (2d F.2d 463 41 Cir. guard primarily involving walking 1972), as “subjective pain may and that serve standing, checking people in out disability, as the establishing basis for even punching time He clock. testified that if such pain unaccompanied positive security person 200 positions findings exist clinical ‘objective’ or other Apparently adopt expert’s opinion in view Mr. Aubeuf’s the vocational that Mr. capable working to the deleterious effect of his Aubeuf was cook. cook, attempt did work as a the ALJ 23, physicians, v. the ALJ to have appears evidence.” Marcus (cita (2d 1979) (emphasis original) contrary Cir. to the testi reached a conclusion omitted). tions and footnote See Hanker mony applying a reports by and medical Harris, (2d v. F.2d son requirement “conclusively that the claimant through objective establish” clinical find ings “neurological abnormality” or “me When the claimant has established derangement spine” chanical of the impairment prevents that his him from re pain. cause for his intense would establish a previous turning employment, to his “the Application clearly a standard was such Secretary, burden shifts who must erroneous and we must therefore reverse. produce evidence to show the existence of Califano, supra, Marcus v. 615 F.2d at 27.6 gainful alternative substantial work which economy exists in the national and which Doubtless as a result his errone perform, the claimant could considering not law, ous view of the focussed on the ALJ physical capability, his but as well his “objective” findings stated in the medi age, education, experience and his reports giving weight cal without sufficient training.” supra, Parker v. treating physicians’ to Mr. ac (citations F.2d at 231 and footnote omitt knowledgment that Mr. was suffer Aubeuf ed).5 Finally, the factual determinations ing impair medically from a determinable the Secretary are conclusive they unless disabling pain. ment which him caused are unsupported by substantial evidence or treating apparent rejection ALJ’s are legal based on a error. v. Marcus Cali must be physicians’ medical conclusions fano, supra, 615 F.2d at 27. Substantial evaluated under the rule evidence is “[t]he defined as “such relevant evi opinions treating physician as to exist dence as a reasonable might mind accept as disability binding are on the fact ence of a adequate to support a conclusion.” Rich Perales, finder unless contradicted ardson v. 389, 401, 402 U.S. 91 S.Ct. 1420, 1427, contrary.” McLaughlin evidence to the (1971) L.Ed.2d (quoting H.E.W., Secretary of Consolidated N.L.R.B., Edison Co. v. 197, 229, Califano, 206, 1980) Cir. v. 572 217, (quoting

U.S. 59 Bastien S.Ct. 83 L.Ed. 126 (1938)). 908, (2d 1978)). F.2d 912 Alvarado Cir. See Califano, 34, 1979); (2d v. 605 F.2d 35 Cir. With these principles mind, we have H.E.W., Chiappa Secretary v. 497 of reviewed the ALJ’s decision and the admin- 356, F.Supp. (S.D.N.Y.1980). 359-60 We istrative record in detail and we find merit find in the no such substantial evidence in Mr. Aubeuf’s contentions. Au record and the ALJ did not find Mr. v. beuf’s incredible. See Marcus A. Pain Califano, supra, 615 F.2d at 28. Although the ALJ acknowledged that Mr. disputing Aubeuf testified that the treat There is no medical evidence physical ment and therapy prescribed by pain. severe Al- his Aubeuf’s claim of doctors did not pain, relieve his though physicians disagreed and al with re- though the ALJ indicated, stated that spect he had re surgery to whether viewed the reports medical of Mr. Aubeuf’s their observations of Mr. Aubeuf’s severe Harris, 291, 294, appli- Decker v. 647 5. See F.2d there for a man do what who can (2d (quoting Harris, do?”). 298 Cir. Parker v. cant can supra); 771, Dousewicz v. 646 F.2d 772 H.E.W., (2d 1981) (same); McLaughlin 6. See Cir. v. Timmerman v. Weinber- 701, (2d 1980); 439, ger, (8th 1975) v. (the F.2d fano, Cir. Northcutt Cali- 510 F.2d Cir. test (8th 1978) particular job 167 n.2 Cir. realistically is “whether is (“[T]he holding by Hearing Examiner capabilities within and mental by ‘medically ‘supported means determinable’ claimant.”); Flemming, Kerner v. objective laboratory clinical or evidence’ is 1960) (“[Wjhat applicant can clearly erroneous.”); Chiappa v. do, employment opportunities and what are H.E.W., (S.D.N.Y.1980). F.Supp. opinion cal beyond competence.8 Dr. Brod’s final note which is pain are consistent. his that Mr. Aubeuf April Thus, on 1978 stated the first factor does constitute a conclusion reached pain,” was in “marked sufficient evidence to rebut the physicians. all the other ALJ by physicians’ findings pain resulting from treating to rebut on two factors relied injury. Mr. Aubeuf’s back and Mr. Aubeuf’s observations physicians’ of “no testimony: Mr. Aubeuf’s exhibition factor, The second Mr. Aubeuf’s could be related to a signs outward perform daily activities, routine is lack pain complex” “sig- and the severe insufficiently supported by also evidence to routine nificant limitation” of Mr. Aubeuf’s physicians’ reports. rebut Mr. Aubeuf daily activities. normally up testified that he wakes at 6:30 factor, the extent The first A.M., takes me a while to get “[it] objective view that evi reflects the ALJ’s straightened up moving and about. Have normally resulting of a condition dence breakfast, sit, know, around, you TV, watch required severe to establish a disabil radio, go yard, listen to the out in the walk ity, Marcus v. is erroneous. See road”; down the that he can drive a car Moreover, supra, 615 F.2d at 28. to the difficulty pain, with and goes that he finding extent is based on the ALJ’s shopping visiting with his wife. The hearing, observation of the claimant at the explore ALJ did not the hearing whether by it is contradicted ALJ’s comment at Mr. Aubeuf’s routine activities were limited hearing that Mr. Aubeuf was “sitting by pain, but Dr. Brod’s notes indicate side”; by Security on one Adminis Social that on some days Mr. Aubeuf could not representative’s tration observation that home, others, wash dishes at and on pain sitting folding Mr. Aubeuf was in in a up. not sit The activities by described Mr. “holding very chair and walked himself Aubeuf are not inconsistent with pain back”; stiffly as if afraid to bend his ful injury by back treating observed by Smyth’s “he Dr. observation that walks physicians, or with the finding ALJ’s slight stoop awith forward and there is a bend, Mr. Aubeuf is unable to or with an slight spine tilt right”; of the lumbar inability eight to work an hour shift on a other records. This finding job requiring both walking extensive also raises with questions respect serious bending,9 not, and therefore do alone or in propriety subjecting claimants to a index,”7 squirm “sit and and with combination the ALJ’s observations of to rendition the ALJ of an medi Mr. Aubeuf at the constitute sub Tyler Weinberger, F.Supp. “significant” 9. The ALJ also found it that Mr. (E.D.Va.1976) (“Clearly, squirm’ a ‘sit and in- taking pain. Aubeuf was no medication for dex, it, plaintiff applied by judge However, calls a Secretary’s who decision was not expert only is not a medical will not result 404.1530, Fed.Reg. based on 20 C.F.R. 45 observing unreliable conclusions when 55,589 claim- (1980), 416.930, or 20 C.F.R. 45 Fed. intentions, may encourage ants with honest but 55,626 Reg. (1980), provide which that an indi- convincing claimants to manufacture observa- prescribed vidual who fails to follow treatment or, pain yet, ble manifestations of worse dis- good “without reason” will not be found dis- courage exercising right them from their to Therefore, abled or will be discontinued. appear Judge before an Law Administrative for question may required whether a claimant be they may appear unexpert fear that to the pursue particular to a course of treatment is eye they feel.”). to be as bad as event, any not before us. In Dr. Brod’s office prescribed notes indicate that medication Califano, 1050, 8. See Wilson v. 617 F.2d 1054 negative was either ineffective or caused side (4th 1980); Day Weinberger, Cir. v. effects, and there is no evidence in the record 1154, (9th Califano, 1975); 1156 Cir. Helms v. prescribed that Mr. Aubeuf failed to follow a 1329, F.Supp. (W.D.N.C.1979); Little Certainly, course of treatment. it is not within Califano, 575, F.Supp. (W.D.N.C. v. competence prescribe the ALJ’s to treatment 145, 1978); F.Supp. Smith v. purport and he did not to do so. (D.Md.1978), op., aff'd without 610 F.2d 813 (4th 1979); Tyler Weinberger, supra v. F.Supp. note at 788. the Secretary produce the conclusions of to to evidence of to rebut stantial evidence physicians.10 Mr. employment Aubeuf’s alternative which Mr. Aubeuf realistically perform. Parker v. Har remand, Secretary should On ris, supra, 626 F.2d at 231. See note application for bene appellant’s “reconsider supra. expert The ALJ called vocational that a medical im fits under the standard question to address the of alternative em severe, disabling pairment which results ployment. The vocational was asked grant disability pain may give rise to hypothetical questions designed to establish ‘objective’ findings clinical benefits even if capacity of an affliction ordi whether Mr. retained the provide proof do not Aubeuf Marcus v. narily causing pain,” such Califa job. The vocational perform any specific to no, Secretary and the supra, 615 F.2d expert’s testimony is useful if it ad binding treating effect give should claimant, particular dresses whether opinions they physicians’ expert unless are capabilities, can with his limitations and by contradicted evidence. particular job. realistically perform See W., McLaughlin supra, of H.E. 231; Harris, supra, 626 F.2d at Parker v. at 705.11 5, supra.12 hypothetical question note on which the ALJ based his apparently Capacity B. Residual Functional finding that Mr. Aubeuf can work as In view of our conclusion security guard incorporated ALJ’s con respect the disabling ALJ’s decision with to pain which have clusion with we pain effect of Mr. Aubeuf’s was based on an standard, found to be based on an erroneous standard, legal supported erroneous is not Mr. adequately and did not account for must recon substantial evidence and We Aubeuf’s actual limitations. therefore sidered, must also reconsider the ALJ Secretary’s reverse the determination that adopted have whether he should voca capacity has the to work as a Aubeuf that, Mr. expert’s tional view if Aubeuf security person and remand for reconsidera interfere with pain suffers which would capacity tion of Mr. realistic concentrate, ability perform he could not job. perform an alternative any job. question cannot be addressed This until there has been a reconsideration after assumption The ALJ also included as an in ac issue of Mr. Aubeuf’s hypothetical questions, in his and later opinion. A. of this cordance with Part II. found, that Mr. Aubeuf’s to walk finding contrary was unrestricted. This is

Although the ALJ found that Mr. appears to Mr. Aubeuf’s and it prevent him Aubeuf is not so disabled as be based on several entries in Dr. Brod’s work, performing from he found which driving (“the claimant’s activities [his] contrary to the evidence and the ALJ’s find- junk yard allegedly wrecker to the after he ings. disabled, maintaining garden, buying a became truck, driving pick-up going fishing, go- and a 691, 12. See also Gilliam v. ing grocery shopping, attending bingo ap- and (8th 1980) (“We 693-94 Cir. conclude that the symptoms pear inconsistent with the varied fatally expert’s defi- vocational was by answers); stated him” in somewhat evasive hypothetical question failed cient because the 954, Finch, (S.D.W. F.Supp. 308 957 Carter v. impair- precisely claimant’s to set out all the 1970) Va.1969), (4th 421 F.2d 702 aff’d Cir. Mathews, 1251, ments.”); Stubbs v. evidence); (conflicting Seminick v. (5th 1977). 1257 Unempl. Rep. Weinberger, Ins. [1974-75]

H5 walking per remand, was 7 day.13 to 15 miles On after Dr. consideration of Mr. Brod treated Mr. Aubeuf almost continu reports and the of his treat- ously hearing. until His notes subse ing physicians in accordance with Part II.A. quent 21, to October 1976 indicate that the opinion, of this the Secretary should recon- optimism expressed early in the 1976 en sider, if Mr. Aubeuf’s appropriate, realistic subsequent tries was not by confirmed de job. perform any particular to velopments, that Mr. Aubeuf’s condition deteriorating, the walking and that III. Power to Remand therapy was discontinued. There is no walking by mention of substantial Mr. Au provision The remand 42 U.S.C. October, 1976, beuf after there and is no 9, 1980, 405(g) was amended on June P.L. § other in the that evidence record after Oc 307, (1980), 96-265 458 94 Stat. and sever tober, walked, Aubeuf or was able recognized al courts have that the amend walk, per day any to 15 miles or other long part ment designed was at least to limit distances, that he walk or continuous federal court remands to Secretary. ly eight during an hour shift as a security Secretary See Rosario v. of Health and Hu guard. Services, 874, man 512 F.Supp. 878 n.6 We also find that the vocational ex (S.D.N.Y.1981); Schweiker, Saunders v. pert’s description of the duties of a security 305, 508 F.Supp. (W.D.N.Y.181); Boyle guard (“primarily walking and standing”, Harris, v. F.Supp. (E.D.Pa.1980); people in out “checking and ... [and] Harris, Torres v. 502 F.Supp. clock”) punching provide a time not did (E.D.Pa.1980); 526-27 Harris, v. Birchfield substantial evidence implicit for the ALJ’s 506 F.Supp. (E.D.Tenn.1980). 252-53 that conclusion Mr. Aubeuf would not be Having concluded Mr. Aubeuf’s claim required during bend to the course of his should be remanded Secretary for duties,14 security guard for explicit or reconsideration under legal the correct conclusion that Mr. Aubeuf would be able standards and for reconsideration of the sitting, to alternate between standing and ALJ’s findings which supported were not throughout walking eight the course of an by evidence, substantial we must consider day security guard. hour work as a It also whether power our to order such a remand did support apparent assump not ALJ’s has by been altered the amendment.15 illiteracy tion that Mr. Aubeuf’s would not The 405(g) as a amendment to section security interfere his duties did not guard. alter either the substantial evidence rule16 14. The district court also 13. tation evant require significant stooping and viding job description clarifying assert that sedentary day.” Brod, stating consideration ’ judgment affirming, modifying, findings the decision remanding (N.D.N.Y. July “The court shall have Section See Bastien job, demonstrating (“[I]t part: omitted). pleadings Aubeuf v. nature such as checker without 405(g), is insufficient of the Bastien the cause for a Secretary these “plaintiff Califano, supra, might Secretary, amended, transcript of No. power early do for walks 15 miles gave jobs 78-450, rehearing. provides, with or entries walking.”) of a job the nature of unwarranted any enter, slip op. record, reversing does light without F.2d at fact, upon pro- rel- per (ci- Dr. at if 16. A Cong.2d trary Cong. facts would be Secretary’s language emphasized). good evidence which is material evidence but evidence to conclusive .... the tary, before he supported by U.S.C.A. scope Senate only upon & Ad.News cause Secretary Sess. capricious.” S.Rep. of federal court review so that the into files determinations with proposal for may 405(g) (Sept. the record in for further final, the failure reprinted taken made for showing answer, The court unless would have “modif[ied] before the 2541. This time order additional action remand good evidence, that there is new found No. incorporate prior proceeding ^[1980] may, 96-408, cause shown Supp.) (new to be arbi- on motion Secretary, U.S.Code proposal shall be there is case to Secre- such 96th reviewing court has concluded after the may reviewing court that a provision legal erroneous Secretary’s Secretary applied reverse affirm, modify or remanding at a determination arrived without standards and decision, “with or v. Har This Dousewicz substantial evidence. rehearing.” unsupported by cause for 1981). How by the not limited ris, type of remand was First, it changes. Harris, supra, amendment, two ever, make see Dousewicz it does court “shall” that the 773; Cong., 1st the direction 96th replaced H.R.Rep.No.96-100, at pre-answer upon action further unneces (1979),18 remand for and it is therefore Sess. require Secretary, with by the motion whether for us to determine sary cause Secretary good show ment that retroactively, applied should amendment “may” remand, the court and for a Secretary of Health and Hu Rosario v. see 405(g) Compare § U.S.C. then remand. Services, supra F.Supp. at 878 n.6. man 405(g) (Sept. 1980 (1976) § with 42 U.S.C.A. Thus, Secretary remand to the Second, re (1980).17 Supp.) Stat. under application reconsider Mr. “may, at the court placed provision evaluating pain, for standards the correct shown, order addi time, good cause on opinions treating physi of weighing for taken before Sec to be tional evidence cians, expert, questioning for a vocational (1976) with a 405(g) retary,” U.S.C. whether alternative determining for an may order addition that the court provision job capabilities the realistic of the is within before the Secre to be taken al evidence by the amend precluded claimant is not showing that there is tary, upon a “only 405(g). ment of section and that which is material new evidence judgment Accordingly, we reverse to incor for the failure good there is cause re- with instructions to record in a the district court into the porate such evidence Secretary for further 405(g) mand this case to the 42 U.S.C.A. prior proceeding.” opinion. with this proceedings consistent Supp.). (Sept. 1980 appeal concerned on We are not MESKILL, Judge (dissenting): Circuit new evidence for submission of a remand a concres- majority today relies on Secretary or the did which the claimant apparently unre- inapplicable cence of submit, Birchfield v. previously cf. to avoid the stric- judge-made lated rules Secretary with a motion supra, or scope evidence” tures of the “substantial filing of an prior remand the case that none of a remand review. Because I believe decision mandates answer. Our 17. See Subcommittee on Social cern that ramifications of would ty erating idence rule.’ for substantial ments of 1980 —H.R. Means, edged, principles ceived failure of the courts mands are expressed. reprinted Cong.2d House Committee on Sess. 13 2540; H.R.Rep.No.96-100 rejected justify the House Committee with the However, 96th (1979). Sess., Disability the administrative of the substantial appropriate, Congress recognized Id.; ” ^[1980] Cong.2d elimination because Subcommittee on evidence the rule S.Rep. degree although the continued need U.S.Code Sess., Ways and No. a concern proposed review was acknowl- of the ‘substantial ev- Amendments “uncertainty 96-408, creditability at 8 Disability process evidence rule was Cong. to adhere to the 96th on Security of the (Comm. Social Securi- with the Means, and the con- supra & Ad.News Ways Cong. 1st is not many Amend- of 1980 which at Print 96th per- op- re- 18. “Your —H.R. to answer showing authority H.R.Rep.No.96-100, (1979). which is Administrative has tion of language is not to be construed as a limita- out nearly quire cause for failure to record in a to make under the law in apply failed to that such a on [sic] that a remand all judicial committee’s explicit replaced by material, good showing comparable at the law prior proceeding. The provide remands cause). (Comm. Justice findings, provision cases that there is new evidence 96th and that to obtain remand incorporate amendment would a full and fair review statutes.’ court discretion after would be authorized in its regulations.” Print currently Cong. or to have is contained there was 1980) (absolute report pointed 1st Sess. 13, it into the recognized Center correctly prior good This for re- ‘in

117 First, applicable, these rules is and because I fear the majority claims that the ALJ “by applying requirement increasingly involving is it- erred that Court claimant ‘conclusively through establish’ ob orthopedics, I dissent. self in the business of

jective findings ‘neurological clinical ab normality’ derangement or ‘mechanical I. spine’ which would establish a cause for question Frank Aubeuf without suffers pain.” intense Had the ALJ so [Aubeuf’s] prevents which required, support from bad back him from I would be in full of re returning heavy “subjective work versal. It is pain to which he is settled may serve establishing as the basis for dis accustomed. This ailment manifests itself ability, pain unaccompanied even if such is restricting objectively, by the claimant’s by positive findings ‘objec clinical or other twist, bend, lift, ability to sit and and sub- tive’ medical evidence.” Marcus v. Califa jectively, by causing pain. him Other than no, 23, 1979); (2d 615 F.2d 27 Cir. Hanker dispute concerning to Harris, 893, v. (2d son 636 F.2d Cir. point walk without restriction —a which I 1980); McLaughlin HEW, v. will discuss later —there seems to be little 701, (2d 1980). gener 612 F.2d Cir. See argument objective over the limitations 1282, ally Weinberger, Cutler v. 516 F.2d Instead, upon the claimant’s movement. as (2d 1975). But Cir. assailed 1286-87 out, the majority correctly points ques- language, taken from one paragraph of the restrictions, tion is whether his to- decision, ALJ’s only directed gether accompanying pain, with the consti- objective symptomology, claimant’s “impairment” prevents tute an Au- readily concludes that there is no iden returning beuf from any to form of sub- neurological tifiable basis for Aubeuf’s gainful activity. major- stantial Unlike pain. following The paragraph, concerned ity, I sup- believe that substantial evidence itself, pain the existence of the states ports finding the AU’s claimant “[t]he pertinent part: in retains the capacity residual functional then, problem claimant’s chief engage activity in sustained work as a se- stemming from injury August curity person.” strain, has been lumbosacral 405(g), incorporated by 421(d), Section consequence of which has been a certain findings states that “[t]he degree of discomfort. The ultimate issue fact, any supported by as to if case, to be decided in this is whether the ” evidence, . . . . shall be conclusive precluded claimant would be from re- 405(g) (1976). U.S.C. Substantial evi- turning any gain- form of substantial dence means relevant “such evidence as a activity, ful due to the existence of a might accept reasonable man adequate disabling impairment, including pain. It itself, support pain, a conclusion.” is true that may Consolidated Edi- However, NLRB, 197, 229, disabling. v. as is the case with son Co. 305 U.S. 59 S.Ct. allegation, other (1938). pain assertion of 83 L.Ed. 126 See Richard- subject is light to review in of all of the Perales, 389, 401, son v. U.S. S.Ct. evidence in the case. 1420, 1427, (1971); 28 L.Ed.2d 842 Bastien Califano, (2d v. 572 F.2d Cir. This approach perfectly is consistent with straightforward Given these rather stan- prior our decisions. See Miles v. dards, imagine one would 122, 124 1981); the task of (2d Vega Harris, F.2d Cir. 1981) this Court would be to examine (per whether cu riam); there was sufficient evidence in Marcus v. supra, the record Indeed, at 27. to substantiate the Marcus this Court finding AU’s of disabil- stated subjective that while ity. Instead, evidence of majority invokes a series considered, should be inapplicable legal rules in an attempt invert the statutory proof clear, however, burden of on also that the Secre- [i]t of impairment. tary issue obliged accept is not without any medically physical determinable subjective credibility of such the question impairment expected to which can be has discretion mental The AU evidence. a claimant and which has lasted or can credibility of to result in death or the evaluate in judgment, expected period to last for a continuous independent at an to arrive ” evi- findings and other .. . . light of medical of not less than 12 months U.S.C. the dence, extent of regarding 423(d)(1) (1976). “expert the true medical The case, by the claimant. which were issued in pain alleged opinions” in this compensation workmen’s the context of a omitted). (citations at 27 Id. dispute, state that the moment “[a]t [Au- that Second, majority contends the disabled moderate partially is beuf] erro- as a result of “[djoubtless ALJ’s] [the that Aubeuf is degree” marked in and above, set forth he view of the law” neous lat- totally disabled.” The “temporary [sic] expert the rule failed to follow “[t]he continues, incomprehen- almost opinion ter treating physician as to the opinions of a prognosis good should be even- sibly, “The disability binding are on the of a existence permanent partial for a tually for a basis by substan- unless contradicted fact finder in character.” The statute disability, mild contrary.” Bastien v. tial evidence to the provide degrees for such of disabil- does not In supra, F.2d at the Obviously, it in absolutes. a ity; speaks at all clear that Drs. it is not place, first treating physician’s opinion patient that a is were in Au- Smyth Kalmarides fact only weight should be accorded if disabled indeed, “treating physicians”; beuf’s showing the doctor was there is some occupied Dr. Brod majority suggests that disability. standard of using appropriate Presumably, that a that role. reason language opin- of the medical By very opinion given is such treating physician’s ions in this case it is clear that we do not experience gained from re- weight apples apples. have peated and treatment of the observation “expert opin Having record reveals that Drs. determined that patient. The procedural were ions” in this no Smyth Kalmarides consulted case deserve favors, that substantial evidence a few times in connection with a workman’s it is clear arising job-re- supports claim out of a the ALJ’s determination that Au compensation “physical impair injury plant previous lated at the of a em- beuf does not suffer a aside, putting question prevents doing any ment” which him from ployer. But reasonably have re significant the more issue surrounds the work. The ALJ could “Disability” ability perform daily means his “disability.” word dif- lied on Aubeuf’s routine,1 together testimony things people; different to the with his ferent “inability engage at the to conclude that Secretary, it means the demeanor2 by disabling pain. from gainful activity reason Aubeuf did not suffer in opinion beyond compe- majority medical which is 1. The observed that activities “[t]he now, by (Footnotes omitted.) inconsistent described Mr. Aubeuf are not Until it has tence.” injury by painful that, assessing with the back observed been settled in this Circuit ” added.) treating physicians (Emphasis may rely . .. . subjective pain, part upon an ALJ may be sufficient While such an observation appear- observations of a claimant’s outward where the ALJ is contradict- warrant reversal during hearing. ance See Miles v. disability, ing treating physician’s opinion 1981); Vega F.2d inappropriate patently standard —cer- it is Harris, supra, Moreover, 636 F.2d at 904. tainly evidence” stan- the “substantial Vega, specifically rejected argu- court finding ALJ’s which to overturn the dard — ment the ALJ’s observation of the claim- opinion. in the absence of such medical lay ant results in a rendition medical is, Whatever this standard it is not the “sub- opinion: scope stantial evidence” of review. credibility assessing In of [the claimant’s] ALJ, by observing pain, as to majority suggests 2. The that observation of a joints, her to move her did not inter- questions demeanor “raises serious claimant’s opinion. ject lay respect propriety subjecting suggesting policy index,’ squirm Id. at 904. In that such a claimants to a ‘sit and and with squirm majority a “sit index” the ALJ of an fosters to rendition occupational significant II. [sic] coordination, eye-hand making decisions majority that after Au- with the agree I directing concerning repairs, people, injury pre- that his back beuf demonstrated returning knowledge to his former of machines. him from vented work, then shifted to the Secre- the burden point From a demands of view the exist- “produce evidence to show tary to bending, reaching, involves lifting, gainful work alternative substantial ence of stooping, seeing, feeling, talking. economy national and exists in the perform, consider- which the claimant Now, Q. Okay. you. Thank I want capability, but only physical his as ing not you to assume that the claimant’s back education, experience his age, his his well bend, impairment ability Parker v. limits his se- training.” and his The F.2d ability prolonged to sit for verely, that his by producing an ex- satisfied this burden limited, that he has a periods is normal who testified that Aubeuf pert witness hands, ability his arms and and to use could, despite impairments, his work as a capable walking, he that there’s security guard. majority levels three walking. no restriction on determination; none is criticisms at this limitations, Now, given those are there persuasive. any jobs perform, considering he can First, the majority points out the background? expert response testified in vocational argues that a questions A. Yes. hypothetical only expert’s testimony is use- “vocational Q. jobs? are these And what particular it addresses whether ful if precludes It all of the work that A. claimant, capabili- with his limitations previously. he’s had ties, particular realistically perform can sug- the extent that this criticism job.” To do, else he could not- Q. Anything asking hypothetical questions is gests that limitations? withstanding those inappropriate eliciting an means for per se security as a He can work A. Yes. testimony, I have found expert vocational support this person. in our Circuit no decision important, the hear- proposition. But more expert was vocational is clear that this It the vocational transcript reveals that ing hypotheti- abstract and merely offering expert clearly in this case was familiar testimony. cal particular “the claimant”: Second, majority suggests that Q. you reviewed the exhibits in Have positing in claimant’s erred ALJ case? this In the walk was “unrestricted.” ability to Yes, I have. A. expert, who was place, the vocational first your review of those Q. And based on records and who with Aubeuf’s familiar of the claim- exhibits and testimony, during present background? ant, is his vocational what that “unrestricted” did certainly understood is var- background vocational A. His restric any “without literally not mean work; he’s done He’s done farm ied. match Indeed, persons could few tion.” handling; he he’s done stock cooking; Rather, “unre physical profile. such steward, man, utility set-up shop was a sense, vocational in a was used machines; stricted” man; variety and he ran work3 in mind. “light” with the demands landscaping. also worked as—in expert ALJs, ability vocational classified 3. The underestimate seems to “medium,” “light,” cases, jobs various to see demands of of these hear hundreds who expert’s “heavy.” testi- limps It is clear from through winc- or a claimant’s contrived considering “light” fact, mony that he was ALJ, trier of should An like other es. n what it is work for the claimant. this factor for be allowed to consider course, worth; cases, many the ALJ will in very little. that it is worth conclude context, (in at 233-34 absence of ALJ’s statement vocational in Viewed restric walking concerning testimony, Secretary’s the absence of conclusion by the rec proper supported perform “light sedentary” tions was claimant could that, testified example, Aubeuf unjustified). ord. For work was pain, pain although walking causes him to walk: limit his does not III. pain? Q. you you’re when walk So observed, As the district “[djenying court stops. Oh, My never yes. A. statutory people benefits to need as- Well, ability to Q. your does limit is an task.” unpleasant sistance Once walk? compassion again, in name of this Court No, myself. I because force A. statutorily imposed has flouted standards any job he asked whether there was When scope our review. concerning IAs Aubeuf despite impairment, could do recently stated dissent: think, is, “Well, thing, I responded, best ” temptation to blur distinction know, . . . . you joba around On walking between individual need and el- statutory basis, reasonably ALJ have igibility strong; but our authority as expert’s that Au- accepted the conclusion judges often fails to match our sympathy ailment, while causing beuf’s him some beings. for our fellow human Absent during walking, did not restrict his transgressions, constitutional we have no walking security perform of a duties power disregard more the substantive guard. procedural eligibility limitations built majority Finally, the states that voca- legislative into schemes we benefit than expert’s description tional of the duties of change and scope have to the nature security guard provide “did not the benefits It should themselves. implicit for the conclusion evidence AU’s By trying otherwise. in effect cases de required that Mr. Aubeuf would not be novo at the and even district court court during security guard the course bend level, majority appeals as the does duties, explicit or for his that Mr. conclusion here, we reduce the entire administrative able

Aubeuf would be to alternate between process to a for the mere rehearsal actual standing, and sitting, walking” during the determination, ensuring thereby that we security work. There is no course of seeing ever-increasing bewill an number authority Bas- proposition. for this novel years these cases in the in the courts Califano, supra, tien v. which is cited in come. support point, involved an AU’s HEW, conclusion, Singletary 623 F.2d vague the absence J., testimony, ap- 1980) (Meskill, claimant vocational that the dissent- (footnote omitted). peared perform “jobs light ing) able to of a This prophecy is sedentary becoming nature such of a checker.” reality, today’s as that fast decision at 911. This held that an problem. Court will serve to exacerbate not, lay on the his own AU could basis of I dissent. reasonably

experience, conclude job “with- given capability

claimant has a job description clarifying out providing ” job . 912-13.

the nature of the . . . Id. at me, is to re- point,

The whole seems to

quire voca- produce expert that a who cannot

tional evidence claimant job

return to his former can nevertheless do that exists national econ-

other work in the Harris, supra, Parker v.

omy. See notes indicated that Mr. Au to return to his for Mr. Aubeuf unable Thus, employment. improving mer the burden shifted beuf’s condition was and that he 14,109 (CCH) (D.R.I.1975) (conflicting [| do not alter at 2169 10. The cases cited evidence). involved either our conclusion. Those cases significantly more extensive activities credibility, or con- undermined the claimant’s reject Secretary’s argument 11. We that Mr. Deyo flicting See v. Wein- medical evidence. pain episodes Aubeuf s acute back did not last (S.D.N.Y.1975) berger, F.Supp. 973-74 required 12 months. This contention is

Case Details

Case Name: Frank Aubeuf v. Richard Schweiker, Secretary of Health and Human Services

Court Name: Court of Appeals for the Second Circuit

Date Published: May 4, 1981

Citation: 649 F.2d 107

Docket Number: 939, Docket 80-6190

Court Abbreviation: 2d Cir.