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[NOT FOR PUBLICATION]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 Ri
_____________
____________________
Assistant United States Attorney, and Robert M. Peckrill, Assist
___________________
Regional Counsel, Department of Health & Human Services, on brief
appellee.
____________________

____________________

Per Curiam.
__________

Plaintiff-appellant Jamie Delgado

appeals

from

a district court judgment affirming the decision of the

Secretary

of

Health

application for

and

disability

Human

Services

insurance

reasons that follow, we vacate

denying

his

For

the

benefits.

the judgment below and remand

the case.
I.
Delgado

was

approximately
write.

born

three

on

June

years of

13,

school,

For approximately twenty-five

at La Estrella

1944.
but

He

completed

cannot read

or

years, Delgado worked

bakery, gradually progressing to the

jobs of

baker and confectioner.

In 1986, he stopped working when the

owner

died

of

the

Thereafter,

bakery

and

the

bakery

shut

down.

he worked for a few weeks at another bakery, but

was dismissed because his "[right] foot got swollen, and [he]
missed

work . .

alleges

. "

disability

He

has not worked

onset

date

of

since then, and he

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

injury.

In a subsequently filed

to a

right leg

disability report, Delgado

alleged that after breaking his ankle on February 2, 1984, he

could no longer work full days at the bakery.
that

eventually he had to stop

leg swells

when he stands up

He complained

working entirely because his

for long periods of

-3-

time.

He

also complained

that since the accident,

he has experienced

pain and numbness in his right hand.

The

Social

Security

Administration

application initially and on

denied

reconsideration.

Delgado's

On October 5,

1990, Delgado obtained a hearing before an Administrative Law

Judge (ALJ).
October

24, 1990,

disabled.
remanded
second

Delgado and
the ALJ

The Appeals
the case

hearing,

testimony of a

testified.

determined that

Delgado

On

is not

Council, however, accepted review and

to the
held

a medical expert

on

ALJ for

further proceedings.

October 22,

vocational expert.

1991,

Delgado

included

A
the

was represented

by counsel at both hearings.

The medical record before
his reports.

Briefly, Delgado suffered a crush injury to his

right hand, in 1969,

which resulted in some loss

On February

9, 1984,

undisplaced

spiral

treated at El Buen
Insurance

the ALJ is well-summarized in

Fund.

Delgado slipped
fracture in

his

of motion.

at work, suffered
right

ankle, and

Hospital under the auspices of

Records

from

the Fund

disclose

an
was

the State
that on

January 19, 1990, Delgado was examined by a peripherovascular

surgeon in connection with complaints of pain and swelling in

his right

ankle.

middle-aged

The examination

man,

in

no

revealed a well-oriented,

acute

distress,

and

without

by

Dr. Paul

significant edema.

-4-

On
Kindy, a

November

13, 1989,

Delgado

consultative orthopedic

Delgado complained of

was seen

physician.

pain and swelling in

He

the right ankle,

pain in both knees, and weakness and pain in the

The examination
wrist and thumb,
had

a full

ability
normal

revealed some

loss of

motion and

to squat, however,

diagnosed a crush

the right

ankle.

Both knees

good strength.

Delgado's

was limited to

due to ankle and knee pain.

injury deformity

right hand.

motion in

as well as in the right

range of

noted that

fifty percent of

The consulting physician

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.

lies down.

The swelling is alleviated if he

Although the pain in

his leg is "terrible,"

obtains some relief when he lies down.

or Panadol to relieve the
half hour and
the

day, he

pain.

He also takes Tylenol

He can walk for

can sit for up to an hour

walks

to the

park,

he

up to one-

and a half.

talks to

During

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

testified
windows

that
or

or

listens

he sometimes

weeding, but

does

that he

swelling in his legs the next day.

to

the
chores

is

radio.
such as

bothered by

Delgado
washing
pain and

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
manipulative

injury limits his ability to

activities, such

as

perform fine

jewelry work.

Based

on

Delgado's subjective allegations of knee pain, the ME further

testified

that Delgado

twenty pounds.

The

is

limited to

ME also

Delgado testified he takes

lifting or

observed that

carrying

the medications

to relieve pain are for

light to

moderate pain.
The Vocational Expert (VE) identified various jobs which
Delgado could
industries,

perform

clothing

including spot cleaner,

inspector, bottle
the

in the

VE, these

washer, and

jobs

are light

or

at will.

moderate pain

The VE

also

pharmaceutical

garment bagger, garment

box assembler.

require fine manipulative ability,

positions

and

According to

sedentary work,

do

not

and permit alternation of

testified that

would not interfere with

mild

to

Delgado's ability to

perform these jobs.

Following the
that Delgado is not

second hearing, the

disabled.

-6-

ALJ again determined

The ALJ found

that Delgado's

musculoskeletal condition is severe and that

he is unable to

perform his

past

concluded

Delgado has

the residual functional capacity

work.

However,

the ALJ

to perform the

full range of light or sedentary work, reduced by

of

motion of

the right

hand

or wrist.

that

limitation

The ALJ

further

concluded that Delgado's complaint of pain is not credible to

the degree of severity alleged.
based

on

the

testimony

of

Finally, the ALJ ruled that,

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
42 U.S.C.
district
of

405(g).

the taking of new evidence

The additional evidence proffered to the

court discloses that

no disability,

Dr.

February

diagnosed as

in his hands, hips,

Jose Castro-Rodriguez,

12, 1992 and

anti-inflammatory
treated Delgado
also

after the ALJ's determination

Delgado was

rheumatoid arthritis
feet.

Dr. Roberto

between May 13, 1992 and

therapy, but

suffering from

knees, ankles, and

who saw

April 29, 1992,

drugs.

employed drug

pursuant to

Delgado between

treated Delgado with

Rivera-Rivera,

who

September 9, 1992,

noted poor

response.

On

September
surgeon,

23,

1992,

Delgado

was

seen

by

Dr. Juan J. Bibiloni-Rodriguez.

an

orthopedic

In a letter dated

-7-

November

12,

1992,

Delgado's knees,
intervention.
Delgado was

Dr.

hips,
Dr.

Bibiloni-Rodriguez
and right

ankle

required

Bibiloni-Rodriguez

totally disabled.

reported

also

that

surgical

opined

Hospital records,

that

as well as

the surgeon's progress notes, reveal that Delgado underwent a

left total
Delgado's
February

knee replacement on

or about

prognosis upon leaving the

11,

1993, Delgado

November 9,

1992.

hospital was good.

underwent

right total

On
knee

replacement.
The

district court

affirmed the

Secretary's decision.

This appeal followed.

II.
Delgado raises
the

Secretary failed

ordering tests

two arguments.
to

First,

adequately develop

which would determine

he contends that
the record

the cause of

by

his knee

complaints.

Second,

in failing to remand
evidence.

Because

he argues that the district court erred

the case in light of the
we

are

persuaded

that

proffered new
a

remand

was

required for consideration of the proffered evidence, we need

not address the first issue.
The controlling statute provides
any

time order

that the court "may at

additional evidence to

be taken

before the

Secretary, but only upon a showing that there is new evidence

which

is material

failure to

and

that there

incorporate such

is

good cause

evidence into

for

the record in

the
a

-8-

prior

proceeding . . . "

appropriate

when "further evidence

the facts of the

essential to a

405(g).

A remand is

is necessary

to develop

case fully . . . and consideration of it is

fair hearing."

Health & Human Services,

_______________________
We

42 U.S.C.

Evangelista v. Secretary of
___________
_____________

826 F.2d 136, 139 (1st

Cir. 1987).

have clarified that a remand is indicated when, "were the

proposed

new

evidence

to be

considered,

the

decision `might reasonably have been different.'"

(quoting Falu
____

Secretary's
Id. at 140
__

v. Secretary of Health & Human Services, 703

______________________________________

F.2d 24, 27 (1st Cir. 1983)).

The additional evidence is plainly new.
have

before him

evidence

rheumatoid arthritis,

much less that his

surgical intervention.
requirement is

that Delgado

We also

met because

The ALJ did not

was suffering

condition required

find that the

the evidence was

"good cause"
unavailable to

incorporate into the administrative proceedings.

v.
(6th

from

See Wilson
___ ______

Secretary of Health & Human Services, 733 F.2d 1181, 1182

____________________________________
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

evidence that Delgado's

rheumatoid arthritis, as well as

condition degenerated to the

of requiring surgery, shed new

extent

light on the symptoms Delgado

alleged and the seriousness of his condition as it existed at

the

time

the

ALJ made

his

determination.

-9-

See Lisa
___ ____

v.

Secretary of Health & Human Services, 940 F.2d 40, 44-45 (2d
_____________________________________
Cir.

1991)

(evidence

fibromyalgia, a
suggested
severe

that

claimant

rheumatic disease, was

suffered

from

material because

it

that claimant had an impairment substantially more

than

previously

diagnosed).

Most

notably,

significant part of Delgado's claimed disability consisted of

his complaint

of "terrible"

this complaint

was not

pain.

The ALJ concluded

fully credible because,

among other

reasons, it was not supported by the evidence of record.

new

evidence

may

alter this

Sullivan, 961
________

F.2d

result, which

showed that

material because
claimant's
F.2d 954,

1395, 1397

(8th

it provided

955-56 (4th

was

Cir. 1992)

objective medical
Borders v.
_______

Cir. 1985) (evidence

claimant's

condition

See Geigle
___ ______
(MRI

claimant had herniated

subjective complaints);

operation on
back

conclusion.

back relevant

disabling,

as well

The
v.
test

disc, was
support for

Heckler, 777
_______

of post-hearing

to question
as

that

whether

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
district

application.
court is

Accordingly,

vacated

and

the

the

judgment of

case remanded

to

the
the

district court with directions to enter an order remanding to

the Secretary
opinion.

for further proceedings

Vacated and remanded.

_______
________

-10-

consistent with

this