Pearce seeks summary reversal of the Secretary's decision and
that the case be remanded for further findings.
Pearce filed an application for Disability Insurance Benefits
on December 31, 1981 alleging disability beginning in March of
1978. (Tr. 145-148). Pearce's insured status expired prior to the
alleged onset date, and his claim for benefits was denied.
On January 19, 1983, Pearce filed a second application for
Disability Insurance Benefits and Supplemental Security Income,
again alleging disability beginning in March of 1978. (Tr.
160-163, 169-173).*fn1 Both of these claims were denied. (Tr.
On March 17, 1983, Pearce requested reconsideration, amending
his application to reflect an alleged disability onset date of
January 1985. (Tr. 175). Upon reconsideration, both claims were
again denied. (Tr. 176-177).
Subsequently, Pearce requested an administrative hearing on
both claims. (Tr. 178) On November 4, 1983, a hearing was held
before an Administrative Law Judge (hereafter ALJ). (Tr. 44-77).
The ALJ determined that Pearce did not suffer from a severe
impairment, and was, therefore, not entitled to Supplemental
Security Income. (Tr. 283). Regarding Pearce's claim for
Disability Insurance Benefits, the ALJ applied administrative res
judicata pursuant to Pearce's December 23, 1981 application and
dismissed the claim. (Tr. 286-287).
On March 29, 1984, Pearce requested review of the hearing
decision by the Appeals Council (Tr. 288), and submitted new
evidence. (Tr. 298-301). Regarding Pearce's Supplemental Security
Income claim, the Appeals Council determined that the new
evidence established that Pearce did, in fact, suffer from a
severe impairment. (Tr. 303). However, the new evidence was found
to not conform to the standards set forth by the Social Security
regulations. (Tr. 303). For this reason, the Appeals Council
specifically remanded the case to an ALJ and ordered the ALJ to
obtain medical testing, which conformed to the regulations, and a
medical assessment of Pearce's ability to perform work related
activities. (Tr. 304).
As to Pearce's claim for Disability Insurance Benefits, the
Appeals Council determined that Pearce's insured status date had
been incorrectly computed, and therefore, reopened both the
December 1981 and January 1983 applications. (Tr. 304). The
Appeals Council noted that Pearce reported work activity from
1974 to 1978. (Tr. 304). Based on this work activity, the ALJ was
directed to make a finding as to whether Pearce had engaged in
gainful activity, and, if so, the testimony of a vocational
expert (hereafter VE) was ordered to assess Pearce's transferable
skills. (Tr. 304).
Pursuant to the Appeals Council's remand order, Pearce arrived
at a consultative examination on September 28, 1984. (Tr.
309).*fn2 In addition, two further hearings were held where
testimony was heard from Pearce, Pearce's friend, and a VE. (Tr.
78-126). Subsequently, the ALJ issued a decision finding that
because Pearce had refused to meaningfully participate in the
consultative examination, his claims for Disability Insurance
Benefits and Supplemental Security Income were denied. (Tr.
On April 26, 1985, Pearce requested review of the hearing
decision (Tr. 26), and submitted additional evidence to the
Appeals Council. (Tr. 16-21). The Appeals Council determined that
the additional evidence did not follow the protocol established
by the Social Security regulations or otherwise did not provide a
basis to invalidate the ALJ's decision. (Tr. 4). Thus, on January
22, 1986, the decision of the ALJ became the Secretary's final
decision. Subsequently, Pearce sought judicial review of the
Secretary's final decision.
Both parties identify the issue before this Court to be
"whether the final decision of the Secretary is supported by
substantial evidence in the record." Neither party discusses the
weight, presence or absence, or interpretation of any of the
medical evidence present in the record.
Pearce's appeal arises from the provisions of the Act which
allow an ALJ to deny benefits to a claimant, who is unwilling to
cooperate in a consultative examination to which he is sent by
the Secretary. This provision of the Act provides, in relevant
"If you do not appear at a consultative exam.
(a) General. If you are applying for benefits and do
not have a good reason for failing or refusing to
take part in a consultative examination or test which
we arrange for you to get information we need to
determine your disability or blindness, we may find
that you are not disabled or blind. If you are
already receiving benefits and do not have a good
reason for failing or refusing to take part in a
consultative examination or test which we arranged
for you, we may determine that your disability or
blindness has stopped because of your failure or
refusal. Therefore, if you have any reason why you
cannot go for the scheduled appointment, you should
tell us about this as soon as possible before the
examination date. If you have a good reason, we will
schedule another examination.
(b) Examples of good reasons for failure to appear.
Some examples of what we consider good reasons for
not going to a scheduled examination include: (1)
illness on the date of the scheduled examination or
test; (2) not receiving timely notice of the
scheduled examination or test, or receiving no notice
at all; (3) being furnished incorrect or incomplete
information; or being given incorrect information
about the physician involved or the time or place of
the examination or test; or (4) having had death or
serious illness occur in your immediate family.
(c) Objections by your physician. If any of your
treating physicians tell you that you should not take
the examination or test, you should tell us at once.
In many cases, we may be able to get the information
we need in another way. Your physician may agree to
another type of examination for the same purpose." 20
C.F.R. §§ 404.1518; 416.918 (1985).
In the present case, the ALJ concluded that Pearce, without
good reason, refused to meaningfully take part in a consultative
examination, which was necessary to establish the severity of his
pulmonary condition. (Tr. 95-96). Therefore, the ALJ denied his
The record reflects that Pearce did establish that he suffers
from a severe pulmonary impairment. However, as was explicitly
pointed out to Pearce by the Appeals Council, the medical
evidence in the record at that time did not conform to the
criteria set forth by the Social Security regulations and
"additional medical evidence was warranted in this case." (Tr.
303). The additional medical evidence required was clearly
identified by the Appeals Council:
"The Administrative Law Judge shall obtain a
consultative pulmonary examination, with
documentation as specified in 3.00B of the Listing of
Impairments and a medical assessment of the
claimant's ability to do work related activity." (Tr.
This consultative examination was scheduled with Dr. Owen Deneen,
and so scheduled entirely at the expense of the Social Security