*1 MESKILL, Chief Before KAUFMAN BRIEANT, Judge.* Judges, and District BRIEANT, Judge. District and re- We reverse the below proceed- further mand to the opinion. this ings consistent with conclusion, Montgomery Weinberger, pre- ability. reaching See we do not (6th 1975). inability possibility proof F.2d as to clude the job regularly, if at least combined attend * York, sitting District of New factors, finding Of the Southern might of dis- by designation.
218 get a The ALJ to in touch with claim- appeals from offered Singletary
Nathaniel physician An “at- affirming on ant’s and in fact did so. court of the district telеphoned ALJ Dr. record, torney-advisor” the the the administrative 4, February 1977 and as- find McCollester on based on a disability benefits denial of treated the certained that the Doctor had was not “disabled” ing Singletary that 423(d)(1) August 1972 to 1975 on 42 claimant from June meaning § the of U.S.C. within 31,1974, diagnosed regular his entitle Dr. McCollester last a basis. on or before an cirrhosis supported Singletary having is not as alcoholic finding ment date. That Indeed, liver, early as although the which was confirmed by of substantial evidence. by globulin might it bе as June 1972 elevated serum the as clear as as record tests, arose, loss, of and an en- disability the evidence and bilirubin to when the Dr. disability overwhelming, larged liver. In 1972 McCollester noted total in this case is Mr. not work due to Singletary of the that could and warrants further consideration his Dr. it back far as the chronic nature of condition. issue of whether relates as was “this con- prognosis that McCollester’s degenerate, ending in dition will continue to disability, claim four assessing “In a of neuropаthy years.” Peripheral in death ten (1) objective are factors to be considered: August the time in was noted for first facts; (2) diagnoses or medical medical by Dr. McCollester. facts; (3) subjec- opinions based on such pain testi- tive evidence of up following Instead of on informa- claimant; (4) by fied Mr. strongly that suggested tion which Sin- background, age, claimant’s educational his disabled as a result of alco- gletary was experience.” and work as the ALJ discounted early holism as statement, Califano, finding n. Doctor’s that Marcus v. at 1979), “[ajlthough diagnosis cases such alcoholic cir- therein cited. [of supported by rhosis labora- liver] Claimant, Kingstee, at Caroli- born South data, in tory the condition did not result eighth grade na an educa- in received end-organ damage physical limita- tion a race employed there. He was as addition, tion. the claimant was advised groom years, five until track for at least stop drinking, many but did so times working, believing stopped when he periodically.” physically unfit to continue. Prior himself gasoline at a employed to this time he was “Dr. The district court found that McCol- foundry. a station and suspicion a lester’s oral leaves that in petitioner was a chronic alcoholic Singletary suffers several ailments. but it fails to establish that fact. His con- complained spells He dizzy since has petitioner clusion ‘could not work’ is in head a racehorse by kicked ambiguous; only represent it may re- began to leg 1969. An old fracture also port petitioner on If there what claimed.” pain complains cause him He meaning as doubt to the Dr. problems” him “foot which make unable inquiry report, McCollester’s a further significant periods. or walk He is stand the ALJ was in order. alcoholic, and has been afflicted for long time with cirrhosis of the liver. The also before a report ALJ him podiatrist, cases, Courtney, from Dr. dated ap- is usual such S.
As level, shows that peared pro se which at disorders, son, multiple Ad- ant “suffers from foot nоn-lawyer. aided Judge (“ALJ”), although generalized bilaterally, se- ministrative Law has osteoarthritis opening evidentiary hearing by telling plantar digital lesions in vere keratotic feet, every moderate help you will which make even “[I] way exquisitely painful.” bring I can to out the facts that have amounts of ambulation claim,” failed, balance, paresthesis bearing your Courtney on Dr. also found second- purposes ary neuropathy Act. and sever der- further remedial alcoholic concluded The critical date determination dis- feet. He matophytosis in both treating ability is March 1974. The is not Singletary my “in estimation MeCollester, reported Dr. physician, work.” The ALJ good candidate for condition between 1972 and 1975 regarded this circumlocution should have was chronic and that “he could not work statement equivalent to a Courtney stated, repeatedly due to it.” We have disabled, at totally that Mr. *3 HEW, recently in Eiden v. 616 26, 1977, probably and least as of 1980) (2d therein F.2d 63 Cir. and cases Although Mr. prior some time thereto. for cited, contradictory that “when ‘no his foot Singletary conceded that treating physician’s expert presented, is a now, they as are not severe in 1974 were Id, binding Secretary’.” is on the condition, with his when considered Califano, quoting at from Alvarado outright the ailments, not warrant did 1979) curiam). (per 35 claim. Singletary’s of Mr. dismissal contradictory no evidence to There is claimant for the Sec- An examination to Singletary Mr. is now able effect Woronoff, M.D. on Janu- by Richard retary All employment. engage any available 6,1976, gave a case shows that claimant ary contrary. to the testimony of the is present as- consistent with his history then premised Denial benefits claimant Dr. Woronoff found that sertions. ground narrow that as of tall, weighing 1 inch was then 6 feet reach a alleged impairments did not Al- pressure of 130/90. lbs. with a blood We cannot severity disabling. to be level of unre- claimant normal and though he found supported is agree that this determination aspects, he did confirm markable in most evidence.” U.S.C. by “substantial of the proximal third tenderness of conditions of this sort do 405(g). Chronic § tibia and concluded shaft of the left competent There was overnight. arise not disease, probably Singletary a liver Mr. disability at least in 1974 and evidence of alcohol, epi- syncopal secondary to use of and which was chronic and a condition sodes, post-concussion possibly related to a may well have been chron- disabling in 1975 myalgias of arthralgias, syndrome, claimant last worked. disabling ic and when feet, muscle back right left and low conclusion, supports this testimony own His strain. MeCollester. report of Dr. as does the brief history of show a life Singletary does evidence, the medical In addition to demanding performed under hard labor n contradiction, testified, without His work rec- long hours. conditions over following the race not work that he did nationally known employment ord shows dizziness, injury because suffered track animals, both trotters These racing stables. week, in three times a sometimes two or care is very valuable. Their pacers, are He said he foot condition. addition to his malingerers goldbricks. or not entrusted newspa dizzy he could not read was so justifies the infer- prior history work His attempted to tes The claimant’s son pers. stopped working he did that when he ence claimant’s alcoholism and tify concerning the reasons testified to. so for however, work; reject ALJ inability to compel totality оf this record he is not a doctor testimony because conclude person fair-minded possible son. While and he is the claimant’s cannot, work, work, not could go factor which would undoubtedly is bias It was again. work probably will never testimony, the son’s to the legislation this remedial the intention of knowledge of claimant’s son had first hand pro- receive the benefits persons that such style. The and life alcohol intake by law. vided admissible always has been lay witnesses Secretary’s de of the In its review F.R. Rule to drunkenness. termination, declined Eastwood, the district court Evid.; 14 N.Y. People v. applicability of the reach the (1856). seeing we will 404.1507, thereby ensuring that denying
Regulation, § 20 C.F.R. of these cases stop ever-increasing number alcoholic failed disability where an Because I physi- do to come.1 drinking if so the courts instructed we appropriate, because should confine ourselves cian. This was believe rely security did on the proper role in social ALJ’s denial of benefits our cases, Accordingly, need not dis- Regulation. we I dissent. issue a moral
cuss whether alcoholism disease, is much on which there point BACKGROUND Physical damage done disagreement. disability bene- applied first Claimant disabili- overindulgence in alcohol is a prior dizzy foot spells, complaining fits in Act, and, apart from ty purposes of the problem. After problems and a knee Singletary drinking problem, current denied, ap- application was initial present. at clearly totally disablеd 1976, restating plied for reconsideration *4 with We remand a direction would terms. In Janu- disability in the same benefits, except there we believe award application second before the ary of difficulty determining may be in some examined, at upon, was ruled claimant whether existed as of March Security Adminis- request of the Social we remand Accordingly, reverse and tration, Dr. Richard Woronoff. Secretary proceedings to the for consistent pertinent in Woronoff’s indicatеd this opinion. with part: HISTORY MESKILL, Judge: Circuit “history being told of liver disease” my I view both respectfully dissent. In only “takes alcohol now” occasional and the the reversal of the below “faints several times a week” remand to are unwarranted. “pain aching and both in Denying statutory people benefits feet” always unpleasant need assistance an standing sitting” problem “no with or distinc- temptation task. blur the statutory tion between individual need PHYSICAL EXAMINATION authority as eligibility strong; but our no distress” “in acute or chronic sympathy judges often fails to match our “Bilirubin 1.5” con- beings. our human Absent for fellow IMPRESSION more transgressions, stitutional we have no DISEASE, LIVER OF “HISTORY pro- power disregard substantive TO USE PROBABLY SECONDARY leg- into eligibility cedural limitations built BI- ELEVATED OF ALCOHOL. HAS schemes we have islative benefit than LIRUBIN.” scope change nature and of the benefits EPISODES, “SYNCOPAL ETIOLOGY should otherwise. themselves. It not be AT THIS OF WHICH IS OBSCURE novo at the By trying in effect cases de TIME; TO A RELATED POSSIBLY appeals and even district court court SYNDROME.” POST-CONCUSSION level, here, majority does we reduce + MYALGIAS process the entire to a mere “ANTHRALGIAS [ ] determination, LEFT FEET.” OF RIGHT AND rehearsal the actual systems those in need. We determina- vate that serve 1. The effect of the forget deny payments a claimant who cannot is to under one sometimes lawfully tion particular program. employed particular Although assist- has been un- be sheltered under he necessarily program in the left out in the there is no hint ance is not since and son are of assistance under record that claimant —whose wife cold. Nor does denial particulаr gainfully adequately program applicant employed “ma- an been label —has housed, fed, clothed, provided majority lingerer” “goldbrick,” medical as the care, through imply. the cracks in or that he has fallen seems to federal, state, community pri- the web of In x-ray report considering indi- addition to An dated these docu- healed, completely the existence of “a ments, cated the ALJ heard the of both deformity” in the slight spindle fracture and his son. Claimant’s leg. left statеment regard to his knees at application for reconsid- After claimant’s hearing feelingness was that he had “no denied, hearing de novo eration feet, them.” to his claimant de- in Janu- conducted ALJ Aaron Waldman painful. scribed them as calloused and ary of fifteen months after Both claimant and his son indicated that application initial was filed. Prior to experienced dizzy spells from one writing hearing, claimant was advised per to three times week. “submit all available mеdical After dizziness and foot you on or before showing were disabled discussed, were following exchange took Further, claimant was 1974.” place: although responsi- he bore the advised bility submitting Q that, evidence to your And was was that condi- claim, security office his local social tion back in 1974? A knee— obtaining any him in additional evi- assist A my That was not condition in 1974. Finally, dence he wished to submit. Q your Well I’m interested condi- represent- ant was advised that could be tion in 1974 and in the 5 prior to attorney if аnd that he wished that. it, representation but could not afford MR. SINGLETARY [claimant’s son]: security provide local social office would *5 It was not as severe as that in 1974. might list of offices where he be able However that was his condition. And Dr. representation. There is obtain no claim would know that because plaintiff [McCollester] that cannot read or understand very he treated him for that illness. English. Three medical documents were available thereafter, Immediately following his tes- to the ALJ hearing. at the time of the The knee, timony concerning his claimant reaf- first, report, Dr. Woronoff’s has been sum- firmed the fact that his condition in 1977 “report” marized second above. The was a was more severe than his condition in 1974: letter stating from Dr. Duncan McCollester Q You told me your present about only that he treated had claimant from condition? August June of 1972 until seeing A Yes. during year period. him ten times that three Q compare How does it with what it diagnostic findings No or clinical no and was in 1974? any medical data of sort were contained in report this letter. The third was that of there’s, A Well it’s much worse than Courtney, Dr. wrote S. who that as of Janu- it was in 1974. 26, 1977, ary from claimant suffered multi- by There was also claimant’s disorders, ple rendering foot moderate regarding son claimant’s alcohol intake. exquisitely painful, amounts of ambulation characterization, Contrary majority’s paresthesias secondary alcoholic neu- “reject” the ALJ did not the son’s testimo- ropathy. Although he conсluded his brief ny that at certain times claimant drank report Single- with the observation: “Mr. heavily and that in the son’s work,” tary good is not a candidate for ant was a “chronic alcoholic.” The ALJ Courtney expressed opinion, no based on merely remarked that because claimant’s patient’s either the history physical layman son was a and was interested in the examination, as to the date of onset of proceedings, his observations in this problems. Specifically, claimаnt’s foot given “very weight” could not be much report any sug- was devoid of information necessary that it would be to look at the gesting these existed in a earlier, reports of the various doctors who had disabling years form three before eligibility expired. claimant’s treated and examined the claimant. documents, new comprising tional explaining several times After reports his hear- supplied from that he has since have to submit who had treated him The first document ing before ALJ. the variоus doctors (in eligibility, response the ALJ during of his a letter from Dr. McCollester open record leave the December of that he would him in stated a letter received inviting claimant’s son to purpose, new 1978) for this in which he notifies problem in there was him if contact are lost or files on claimant counsel that his required information. ad- obtaining he “can now write destroyed and that dition, to contact the the ALJ volunteered memory from Singletary’s behalf on question himself. doctors providеd.” you the material have aided that it states In this letter McCollester the ALJ’s attor- Pursuant offer opinion that claimant suffered report subsequently ney-advisor obtained that “at least as of alcoholism and chronic McCollester, in Feb- by telephone, from Dr. 6/7/72, unemploya- regarded as he must be ruary This stated that of 1977. is an affidavit second document ble.” The having diagnosed in 1972 as claimant was counsel, 29, 1979, dated June by claimant’s liver, cirrhosis of the manifested alcoholic available stating he intended to make enlarged an liver by variable H. report of Dr. Richard to the court a globulin by “elevated” and confirmed Walters, just recently suc- whom he had attorney-advisor’s bilirubin tests. According to claimant’s locating. ceeded in was noted as “His condition notes state: treated testimony, Dr. Walters had own to it. and he could not work due chronic year two weeks for about every him prognosis was that this condi- . His later, claimant Today, year almost a ending degenerate, tion will continue to with Dr. provided this court has still not years.” death in explanation reply, Walters’ or with submitted No further evidence was absence, believing or with a reason for its open was left although the record forthcoming reply such a will permit him to do so. On Febru- in order remand. ary the ALJ handed down his *6 decision, concluding that had not the court conclud- On this record district disability carry as of his proved was under that claimant had failed ed disability 1974. proving as of his last burden of the decision of the eligibility date and that Although mention of majority the omits on substan- AU reasonable and based was fact, of the admin- the this was not the end agree. tial evidence. I appealed process. the istrative Claimant Appeals ALJ to of the the determination DISCUSSION represented by attorney Now
Council.
Legal
Society,
Aid
claimant re-
bases for a claimed
As
the three initial
of
quested an extension for the submission
prob-
disability dizziness, knee and foot
—
Although
30-day
ex-
evidence.
additional
day
this
has been no evi-
lems —to
there
precise pur-
granted
for this
tension
symptoms
of these
reached
dence that
was submitted.
pose, no additional evidence
prior
to March
disabling proportions
Therefore,
of the ALJ became
the decision
Despite
majority’s willingness to
Secretary
July
of the
in
the final decision
principle
that “chronic condi-
rely
Council,
Appeals
in
ab-
1977 when
overnight,”
do not
tions
this sort
arise
evidence,
any new
affirmed.
sence of
agreed
his condi-
and his son
than it
in 1974 was much less severe
tion
proceeded to the district
Claimant
then
This evidence is uncontradict-
court,
again represented—
where he was
In
own
view of claimant’s
counsel,
ed.
present
also an
this time
in 1974 and Dr.
regarding
condition
Society.
attorney
Legal
with the
Aid
con-
report regarding claimant’s
Judge
Woronoff’s
rendered
June of
before
Sofaer
majori-
decision,
by the
dition in
I am baffled
claimant submitted two addi-
ty’s
disability,
observation that the ALJ “should have”
hol-related
even two
after
regarded
Courtney’s
“circumlocution
claimant’s eligibility
expired.
equivalent
. as
to a statement
Similarly, Dr.
telephone
McCollester’s
re-
disabled,
totally
at least
is
port
possible
referred to
organic damage
probably
for some due
Putting
to alcoholic intake.
aside that
added).
prior
(emphasis
time
thereto.”
this
up
specific
was backed
with no
picture
prob-
to claimant’s
nature,
information of a clinical
it was
clear,
concededly less
lems with alcohol is
clearly
unambiguous
neither
nor uncontra-
my opinion any ambiguity
is the
but
Compare
dicted.
Eiden
v.
raising
belated
result of claimant’s
these HEW,
1980).
Even if presented be new evidence would why the remand, understand I fail to ant comment, with dispenses, without majority evidence requirement the traditional timely manner at in a presented COLLEGE, Petitioner, ITHACA reply In his brief level. v. in the points to several deficiencies RELATIONS NATIONAL LABOR help has with the record he created BOARD, Respondent, ALJ, son, attorneys. two fill the failure to explanation offered for Ap- before the gaps with evidence these Faculty Association, College Ithaca decision of Board affirmed the peals NYSUT-AFT, Intervenor. Single- is that “neither ALJ the statement attorney provided with tary nor his FACULTY ITHACA COLLEGE ASSOCI- assuming hearing.” Even transcript of the NYSUT-AFT, Petitioner, ATION, made, expla- proper request Claimant and his at- nation is irrelevant. torney transcript in order to RELATIONS not need NATIONAL LABOR did BOARD, Respondent, physicians and ask contact claimant’s necessary they reports. submit College, Intervenor. Ithaca
CONCLUSION 79-4150, 530, 536, 820, Dockets Nos. quarrel the law as stated I have no and 79-4210. 79-4176 this reason I have majority. For facts, I believe the on the to which focused Appeals, United States Court misap- have been principles correct law Second Circuit. a case where an errone- plied. This Argued Feb. applied law was below. ous view of the anо, F.2d Compare Marcus v. Calif May Decided 1979). it case where Neither proffered the failure any excuse there is timely in a pertinent
to submit persuasive Nor is it a case where manner. so as make new evidence has surfaced *8 path. By a fruitful order- reconsideration in a situa- ing a remand for reconsideration tion where no new evidence adduced, reasonably expected to be can directing the majority is sub silentio Secretary to reverse her determination. explicit so majority’s failure to direct acknowledgment an equally
terms is silent