
USCA1 Opinion

	




        December 28, 1994       [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                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-
