to do nothing more than interpret HHS policy:
The standard is not ours to set. It is HHS' regulatory standard, specifically endorsed by Congress, that is at issue.
Secretary has now clarified that his standard is and was less severe than the Moothart court justifiably believed.
Secretary has effectively conceded, then, that Moothart was "wrongly" decided: that the Court of Appeals had been led down the garden path that Secretary had then marked out. On the heels of that concession, Secretary cannot possibly contend that the old regulations or the Moothart gloss should govern this case. This Court therefore holds that the November 14, 1991 regulations apply on this appeal and must be applied on remand.
To return to the particular facts of this case, ALJ Miller's ruling cited both (1) his own finding that Thomas was incredible and (2) the absence of objective medical evidence to support Thomas' claims (R. 24-25). If Thomas' testimony was in fact credible, then ALJ Miller in effect rejected the pain testimony solely because of the lack of corroborative medical evidence.
That logic plainly violates the policy of the new Reg. § 404.1529. Under that new regulation, it is at least plausible that Thomas could be found disabled based on his pain testimony and the undisputed evidence of his asthma and back trouble. But that sort of judgment, involving as it does the need to review and weigh medical evidence, is more properly made by an ALJ and not in the first instance by a reviewing court. Thus a remand is required to consider both the credibility issue and the proper application of the new regulation to the evidence of record.
Let it be clear that this holding does not necessarily entitle Thomas to benefits. Under both the old and new regulations, corroborative medical evidence provides the surest basis for a finding of disability. what the new Reg. § 404.1529(c) says is that Secretary may not reject complaints of pain "solely" for lack of corroborative evidence. Surely the lack of medical evidence may still provide one reason for rejecting complaints of pain--just not the only reason.
Other factors also play a role in the evaluation of pain claims, including the claimant's daily activities, reliance on medication and treatment history (Reg. § 404.1529(c)(3)). But the chances are that a claimant who cannot proffer supporting medical evidence must rely in the end on the ALJ's perception of his or her credibility.
3. Appeals Council action.
As already noted, Thomas submitted about 40 pages of medical records to the Appeals Council that had not been tendered to ALJ Miller. In his initial brief Thomas argued that the new records undercut the validity of Secretary's decision to deny benefits. Secretary countered that this Court had no authority to review the new evidence when the Appeals Council had denied review and adopted the ALJ's original decision as Secretary's own (a subject on which this Court had previously differed with Secretary, see Maxwell v. Sullivan, 792 F. Supp. 582, 1992 U.S. Dist. LEXIS 5775, at *30 (N.D. Ill. 1992)).
After the briefs were submitted Scivally v. Sullivan, 966 F.2d 1070, 1992 U.S. App. LEXIS 15617, at *16 (7th Cir. 1992) resolved that legal dispute in Thomas' favor:
When the Appeals council denies review and concludes that the ALJ's determination is final, the court reviews the ALJ's determination as well as any new evidence which the Appeals Council may have found to be immaterial.
But this Court's review of the new evidence does not alter its earlier conclusion that a remand, rather than an outright award of benefits to Thomas, is the most appropriate resolution of the current appeal.
At issue are the outpatient records from Cook County Hospital, which indicate the presence of duodenitis and gastritis, a hiatal hernia, multiple herniated discs, narrowing of the disc spaces in several places, hearing loss and tinnitus. That evidence collectively reflects that Thomas does indeed have medical problems in abundance--at least as severe as ALJ Miller found, and perhaps more severe. It may well be that those records, when properly interpreted by medical experts, will provide all the objective support needed for & finding of disability.
But Secretary, and not this Court, is charged with the task of evaluating and weighing the medical evidence in the first instance. This Court's only instruction is that the Cook County Hospital evidence is to receive full consideration on remand, despite the fact that the original ALJ did not have the chance to consider it.
It is not possible to assess whether, if all relevant factors had been taken into account, substantial evidence would support a denial of benefits. Even more important, it is not possible to determine whether Secretary would deny benefits at all in light of all the relevant factors. Reconsideration of the credibility finding, and of the significance of the new regulation and the Cook County Hospital evidence, may significantly change Secretary's position.
Secretary's first task on remand is to reconsider the credibility determination. It may be the case--but it may not--that all that is required is a better explanation of that determination. Second, a new analysis of Thomas' pain allegations will also be required. That analysis must be consistent with the November 14, 1991 regulations. Finally, the Cook County Hospital records are to be given all the weight that they would have deserved had they been part of the original record. Secretary may conduct additional fact-finding on remand to the extent necessary, as may be permitted by the statute and regulations.
Both motions for summary judgment are denied. This case is remanded to Secretary for proceedings consistent with this opinion.
Milton I. Shadur
Senior United States District Judge
Date: August 14, 1992