949 F.

2d 57
35 Soc.Sec.Rep.Ser. 532, Unempl.Ins.Rep. (CCH) P 16376A,
2 NDLR P 144

Joan M. JONES, Plaintiff-Appellant,

v.
Louis W. SULLIVAN, M.D., Secretary of Health and Human
Services, Defendant-Appellee.
No. 1945, Docket 90-6278.

United States Court of Appeals,

Second Circuit.
Argued Aug. 16, 1991.
Decided Nov. 14, 1991.

Armand P. LeMura, Rochester, N.Y., for plaintiff-appellant.

David L. Brown, Asst. Regional Counsel, U.S. Dept. of Health and
Human Services, New York City (Frederick J. Scullen, Jr., U.S. Atty.,
N.D.N.Y., Michael J. Astrue, Gen. Counsel, Annette H. Blum, Chief
Counsel-Region II, Dept. of Health and Human Services), for defendantappellee.
Before MINER, WALKER and McLAUGHLIN, Circuit Judges.
WALKER, Circuit Judge:

Plaintiff Joan M. Jones appeals from a judgment of the United States District
Court for the Northern District of New York (Howard G. Munson, Judge ),
affirming the decision of the Secretary of Health and Human Services (the
"Secretary") denying her claim for disability insurance under the Social
Security Act (the "Act"). Jones presents additional evidence to this court for the
first time to support her claim; the principal question raised on appeal is in what
manner and context this evidence should be reviewed. Before reaching that
question, however, we must first consider whether the decision of the district
court, made without the new information, is supported by substantial evidence.

Background

Jones is 56 years old and has completed the eighth grade. She worked as a
candle decorator for six years, employment classified by the Administrative
Law Judge ("ALJ") as light to medium exertion level. She has not worked since
1976.

Jones suffers from chronic asthma, and on July 15, 1976, she quit her job as a
candle decorator. From that time through December 31, 1980, however, her
condition was largely controlled by medication. Jones did visit the hospital on
two occasions, but she recovered uneventfully from each episode. In March,
1977, she was hospitalized for ten days, requiring intubation to treat an acute
asthmatic episode. Upon discharge, however, she was in no respiratory distress
according to her physician at the time, Dr. William Woodin. On July 20, 1980,
Jones went to the emergency room at Upstate Medical Center in Syracuse
complaining of wheezing. She was given oxygen and was discharged that day
and was "feeling comfortable."

There is some evidence that plaintiff's condition worsened after December 31,
1980, and that she may have become disabled thereafter. That fact is irrelevant
to the determination of the instant case, since Jones concedes that in order to
qualify for benefits, she must establish that she became disabled on or before
December 31, 1980, the date her insured status expired. See 42 U.S.C. 423(c)
(1) (1988).

On July 14, 1986, Jones applied for a period of disability and disability
insurance benefits under Title II of the Act, 42 U.S.C. 416(i) and 423
(1988). Jones alleged an inability to work beginning July 15, 1976, due to
severe chronic asthma.

After the denial of her initial application for benefits, Jones requested a hearing
before an ALJ. On March 6, 1987, ALJ John R. Tarrant held a hearing, with
Jones appearing pro se, and on June 12, 1987 he denied her claim. The ALJ
found that Jones was capable of working as a candle decorator and thus that she
was not disabled within the meaning of the Social Security Act. On September
4, 1987, the decision of the ALJ became the final decision of the Secretary.

Jones then sought judicial review of the Secretary's final decision pursuant to
42 U.S.C. 405(g) (1988) in the United States District Court for the Northern
District of New York. The district court referred the case to Magistrate Gustave
J. DiBianco, who issued a Report and Recommendation rejecting plaintiff's
claims that (1) the Secretary failed to give special weight to the opinion of a
treating physician and therefore failed to follow the Second Circuit's treating

physician rule; (2) the record did not contain any evidence contradicting the
opinions of plaintiff's treating physicians; (3) the Secretary failed to recognize
the retrospective opinions of plaintiff's treating physicians; (4) the ALJ gave
improper emphasis to plaintiff's homemaking skills; and (5) the Secretary's
decision is not supported by substantial evidence in the record. The district
court adopted the magistrate's recommendations, and this appeal followed.
Discussion
8

Jones' appeal raises two issues: first, whether the decision of the district court to
uphold the Secretary's denial of claimant's request for disability benefits is
supported by substantial evidence; second, whether the additional evidence
claimant has presented to this court for the first time on appeal justifies
remanding her case for reconsideration.

The Social Security Act states that "[t]he findings of the Secretary as to any
fact, if supported by substantial evidence, shall be conclusive...." 42 U.S.C.
405(g) (1988). Substantial evidence is defined as evidence which a "
'reasonable mind might accept as adequate to support a conclusion' ".
Richardson v. Pearles, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842
(1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct.
206, 216, 83 L.Ed. 126 (1938)). See also Alvarado v. Califano, 605 F.2d 34, 35
(2d Cir.1979) (per curiam). As we stated in Valente v. Secretary of Health &
Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984), "[t]he court may not
substitute its own judgment for that of the Secretary, even if it might justifiably
have reached a different result upon a de novo review."

10

Using this standard, and considering only the evidence that was before the
Secretary, we find, as did the district court, that the Secretary's decision that
plaintiff was not disabled prior to December 31, 1980 is supported by
substantial evidence. Plaintiff's first argument, therefore, fails to merit a
reversal of the district court's decision.

11

In reaching this conclusion, we reject plaintiff's contention that the Secretary

failed to properly apply this circuit's "treating physician" rule. The treating
physician rule states that the treating physician's opinion on the subject of
medical disability is "(1) binding on the fact-finder unless contradicted by
substantial evidence and (2) entitled to some extra weight, even if contradicted
by substantial evidence." Schisler v. Bowen, 851 F.2d 43, 47 (2d Cir.1988).
In the administrative proceeding, the ALJ sought the opinion of the only doctor

12

12
who treated plaintiff prior to December 31, 1980, Dr. Woodin. The ALJ wrote
a letter advising the doctor that "it must be demonstrated that [Jones] was
disabled and unable to work on or prior to December 31, 1980." Dr. Woodin
stated in a March 27, 1987 letter to the ALJ that plaintiff had chronic asthma
and exhibited signs of emphysema and concluded that "there is no doubt that
she is disabled." However, Dr. Woodin was silent as to whether Jones was
disabled during the operative period, July, 1976 through December 31, 1980.
The ALJ did not inquire further as to the meaning of Dr. Woodin's silence on
this critical issue.
13

Plaintiff had two other physicians, both of whom began to treat plaintiff after
1980. In a letter dated February 20, 1987, Dr. Michael Shaw, who began to see
plaintiff in January, 1987, stated that plaintiff was totally disabled and in his
opinion had been for many years. Dr. Shaw did not indicate, however, whether
the plaintiff's disability pre-dated December 31, 1980.

14

Similarly, Dr. Ronald Miller wrote in a letter dated February 24, 1987, that
plaintiff could not currently conform to a work schedule and opined that
plaintiff was disabled. He had no opinion about her condition prior to 1987.

15

We agree with the decision of the district court that a "fair reading of Dr.
Woodin's March 27, 1987 letter, together with the ALJ's request, compels the
conclusion that Dr. Woodin refrained from expressing any opinion about
disability prior to December 31, 1980." As for the other two doctors, "their
opinions are clearly relevant only to 1987 and cannot be read as expressing any
view about 1980." Since none of the doctors who treated Jones expressed an
opinion about plaintiff's ability to work prior to December 31, 1980, plaintiff's
contention that the treating physician rule has been misapplied is without merit.
As the district court found, the "record does not support, and there is no
evidence in the record to show, that plaintiff was disabled prior to December
31, 1980. Since plaintiff's last date of insured coverage is December 31, 1980,
the denial of benefits is supported by substantial evidence in the record."

16

Jones' final argument on appeal is that the case should be remanded to the
Secretary for consideration of new medical evidence. The new evidence in
question consists of a statement from Dr. Woodin dated March 26, 1991, in
which he summarizes Jones' medical history and concludes that "she has been
completely disabled from performing gainful work since 1964."

17

The Social Security Act provides that a court may remand a case to the
Secretary to consider additional evidence, "but only upon a showing that there

is new evidence which is material and that there is good cause for the failure to
incorporate such evidence into the record in a prior proceeding." 42 U.S.C.
405(g) (1988).
18

This court has summarized the three-pronged requirement as follows:

19 appellant must show that the proffered evidence is (1) " 'new' and not merely
[A]n
cumulative of what is already in the record," Szubak v. Secretary of Health &
Human Servs., 745 F.2d 831, 833 (3d Cir.1984), and that it is (2) material, that is,
both relevant to the claimant's condition during the time period for which benefits
were denied and probative, see Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d
Cir.1975). The concept of materiality requires, in addition, a reasonable possibility
that the new evidence would have influenced the Secretary to decide claimant's
application differently. See Szubak, 745 F.2d at 833; Chaney v. Schweiker, 659 F.2d
676, 679 (5th Cir.1981). Finally, claimant must show (3) good cause for her failure
to present the evidence earlier. See Tolany v. Heckler, 756 F.2d 268, 272 (2d
Cir.1985) (good cause shown where new diagnosis was based on recent neurological
evaluation and assessment of response to medication required observation period).
20

Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir.1988).

21

The district court has yet to review Dr. Woodin's March 26, 1991 letter. As we
have stated in the past, "[t]he application of [the three-pronged] standard for the
introduction of new evidence presents factual issues that ordinarily are best first
passed upon by the district court." Tirado, 842 F.2d at 597. See Carroll v.
Secretary of Health & Human Servs., 705 F.2d 638, 644 (2d Cir.1983). Only
when the appeals court can determine that the new evidence is sufficient as a
matter of law to require a new hearing is remand from the appeals court directly
to the Secretary appropriate, Tirado, 842 F.2d at 597, see Goerg v. Schweiker,
643 F.2d 582, 584 (9th Cir.1981). We cannot make such a determination here.

22

Although we decline to decide whether remand to the Secretary is appropriate,

it may be useful to contrast this case with our recent decision in Lisa v.
Secretary of Health & Human Servs., 940 F.2d 40 (2d Cir.1991). The new
evidence considered in Lisa was similar to that considered here, but distinctions
between the two cases may merit a different outcome in determining whether
good cause exists.

23

The new evidence considered in Lisa consisted of a letter from plaintiff's doctor
stating that plaintiff had been unable to work as of a certain date. We
determined that the letter could not be considered by the Secretary on remand

because Lisa did not show good cause for the failure to incorporate the new
evidence in the original record.
24

In finding good cause lacking, we observed that "the ALJ stressed at the
hearing the need for Lisa to submit medical reports regarding her functional
capacity as of the time when she enjoyed insured status, and received in
evidence reports proffered by Lisa subsequent to the hearing." Id. at 46.
Although Lisa was a pro se applicant, she had "repeatedly solicited disability
certification," id., and we therefore concluded that she "understood the
desirability of obtaining an assessment of disability." Id. In light of this
demonstrated understanding of the hearing process, we held that Lisa's pro se
status did not provide good cause for her failure to incorporate the newly
proffered evidence in the original proceeding.

25

In the instant case, however, there is reason to believe that Jones' pro se status
may have hindered the prosecution of her claim. Unlike Lisa, it is apparent that
Jones was relying on the ALJ to secure the necessary information from her
treating physicians. When Dr. Woodin responded somewhat ambiguously to
the ALJ's request for an assessment of Jones' condition, the ALJ did not follow
up by making clear to the doctor the importance of making a precise statement
on the duration of Jones' disability. As a result, there was no evidence before
the ALJ that Jones was disabled during the relevant period. Jones' passive role
in the proceeding indicates that she may not have understood the importance of
obtaining specific evidence of the date of onset of her disability. Accordingly,
in contrast to Lisa, Jones' pro se status may provide good cause for her failure
to introduce this evidence in the prior proceeding.

26

It is not "our job as an appellate court to examine new evidentiary materials and
find issues of fact." Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir.1981).
Accordingly, the case is remanded to the district court for it to determine
whether the newly offered evidence is sufficient to warrant a remand to the
Secretary to reconsider plaintiff's application.

27

Vacated and remanded.