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United States Court of Appeals,
Fifth Circuit.
No. 94-10284
Summary Calendar.
Glenn G. LATHAM, Plaintiff-Appellant,
v.
Donna E. SHALALA, Secretary Department of Health & Human
Services, Defendant-Appellee.
Nov. 2, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before REAVLEY, HIGGINBOTHAM and EMILIO M. GARZA, Circuit Judges.
REAVLEY, Circuit Judge:
Glenn G. Latham appeals the district court's grant of summary
judgment in favor of the Secretary of Health and Human Services
(the "Secretary"), affirming the denial of his application for
social security disability benefits and refusing to remand to the
Secretary for consideration of new evidence. We vacate and order
remand to the Secretary.
BACKGROUND
Latham suffers from multiple health problems including
osteoarthritis, degenerative disc and joint disease, migraine
headaches, and mental and emotional disorders. On March 11, 1991,
he filed applications for disability insurance benefits and
supplemental security income. Benefits were denied.
Latham sought judicial review of the denial of benefits. He
also provided additional evidence to the district court in the form
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of a Department of Veterans Affairs Rating Decision ("VA rating")
which concluded that he was eligible for Veterans Affairs
disability benefits. He made a motion to remand to the Secretary
for consideration of this evidence. The district court, adopting
the findings and recommendations of a magistrate, denied Latham's
motion to remand and granted the Secretary's motion for summary
judgment on the benefits determination.
DISCUSSION
This court may remand to the Secretary and order
consideration of additional evidence "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.A. § 405(g) (1991 & Supp.1994). The VA
rating meets the statutory requirements, and we remand.
The VA rating is certainly new, since it was not issued until
after the Secretary's determination. Latham can also meet the good
cause requirement, since the rating decision was not previously
available. Latham had applied for VA disability benefits and was
awaiting the rating decision during the social security benefits
application process. He did not receive the VA rating until late
1993, after the Secretary's final decision.
For new evidence to be material, there must exist the
"reasonable possibility that it would have changed the outcome of
the Secretary's determination." Chaney v. Schweiker, 659 F.2d 676,
679 (5th Cir.1981). The magistrate's findings, adopted by the
district court, erroneously applied a different standard, requiring
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that the evidence would "likely" have changed the Secretary's
decision. In Chaney, the Fifth Circuit specifically rejected that
more stringent standard. 659 F.2d at 679 n. 4; see also Dorsey v.
Heckler, 702 F.2d 597, 604-05 (5th Cir.1983) (using the "reasonable
possibility" standard); Johnson v. Heckler, 767 F.2d 180, 183 (5th
Cir.1985) (same).1
There exists a reasonable possibility that the VA rating would
have changed the Secretary's determination. The ALJ based its
decision to deny benefits partly on the fact that none of Latham's
physicians had pronounced him disabled. The VA rating specifically
makes a disabled finding and, like a physician's finding,
constitutes evidence "entitled to great weight." Rodriguez v.
Schweiker, 640 F.2d 682, 686 (5th Cir.1981). Nor is this evidence
merely cumulative of other evidence, since no previous report had
made a direct finding of disability. The VA rating also concludes
that Latham suffers from "irritability, sleep disturbance, and
memory problems." The ALJ did not find sufficient evidence
supporting Latham's complaints in these areas. The additional
evidence might well change that decision.
The VA rating also meets the timing element of materiality,
since it "relate[s] to the time period for which benefits were
1In one case, Pierre v. Sullivan, 884 F.2d 799, 803 (5th
Cir.1989), a Fifth Circuit panel cited Chaney but apparently
mistakenly used the "likely" language. Where decisions conflict,
the earlier decision should be followed. Johnson v. Moral, 843
F.2d 846, 847 (5th Cir.1988), rev'd on other grounds, 876 F.2d
477 (5th Cir.1989) (on rehearing). So, the "reasonable
possibility" standard for materiality continues to apply in the
Fifth Circuit.
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denied." Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir.1985).2
The VA rating was based partly on medical records and physical
examinations which postdated the September 4, 1992 decision of the
ALJ. However, the rating decision also is based on hospitalization
records from 1990, records which tracked Latham's outpatient
treatment for more than a year before the ALJ decision, and
Latham's overall medical history.
Latham has raised possible problems with the ALJ's application
of legal standards in determining disability, which the Secretary
should also consider when this case is remanded for consideration
of additional evidence. First, the ALJ did not consider the
possibility that Latham's pain and other symptoms might result from
his mental condition. When medical findings do not substantiate
the existence of physical impairments capable of producing alleged
pain and other symptoms, the ALJ must investigate the possibility
that a mental impairment is the basis of the symptoms. 20 C.F.R.
§ 404.1529(b).
The ALJ dismissed many of Latham's complaints of pain and
severe discomfort when he decided that Latham's physical ailments
were not serious. The ALJ noted that Latham had been diagnosed
2Johnson controls on this issue, so the evidence which
Latham presents must meet this requirement. Ferguson v.
Schweiker, 641 F.2d 243, 250 n. 9 (5th Cir.1981) holds that
evidence of injuries incurred after the administrative hearing
must be considered if a case is remanded to the Secretary but
specifically declines to address the issue of whether such
evidence could itself justify a remand. Recent Fifth Circuit
cases have all required that additional evidence meet this
timeframe requirement. See, e.g., Haywood v. Sullivan, 888 F.2d
1463, 1471 (5th Cir.1989).
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with a possible somatization disorder. The basic feature of
somatoform disorders is the presence of physical symptoms for which
there are no demonstrable organic findings. 20 C.F.R. subpt. P,
app. 1, § 12.07 (1994). Yet, the ALJ did not investigate the
possibility that Latham's pain and symptoms existed as a result of
the disorder.
Second, when making a finding that an applicant can return to
his prior work, the ALJ must directly compare the applicant's
remaining functional capacities with the physical and mental
demands of his previous work. 20 C.F.R. § 404.1520(e) (1994). He
must make clear factual findings on that issue. See Abshire v.
Bowen, 848 F.2d 638, 641 (5th Cir.1988). The ALJ may not rely on
generic classifications of previous jobs. SSR No. 82-61
(C.E.1982), 1982 WL 31387, 1982 SSR LEXIS 31.
Here, the ALJ found that Latham had a residual functional
capacity for light and medium work and decided that he therefore
could perform his past employment as sales manager and sales
person, since those jobs required light to medium exertion
capacity. The categories of light and medium are generic. They
also refer only to exertional capabilities and do not address
mental or emotional barriers to a return to previous employment.
The ALJ concluded that Latham suffers from anxiety, depression and
deficiencies in concentration and social functioning. Yet, he did
not explain how these impairments do not prevent Latham from
returning to his previous people-oriented employment.
The judgment of the district court is vacated and the case is
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