LeClerc v . HHS CV-93-648-B 08/10/94 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Kevin LeClerc

v. Civil N o . 93-648-B Donna Shalala, Secretary of Health & Human Services

O R D E R

Kevin LeClerc challenges a decision by the Secretary of

Health and Human Services denying his application for disability

benefits. LeClerc contends that his claim should be remanded to

the Secretary because he did not knowingly and intelligently

waive his right to be represented at his disability hearing and was prejudiced by the absence of counsel. As prejudice, he

alleges that the Administrative Law Judge failed to obtain recent

records concerning his infection with Hepatitis B , improperly

discredited his subjective complaints of Hepatitis-related

fatigue, and failed to incorporate these complaints into the

hypothetical posed to the vocational expert who testified at the

hearing. I. BACKGROUND

LeClerc's disability claim relates primarily to a ruptured

disc that causes him severe lower back pain. However, in a

statement attached to his February 1993 request for an

administrative hearing, LeClerc informed the Secretary that he

also had contracted Hepatitis B.1 The statement listed D r .

Alexis-Ann Bundschuh as his treating physician. Id.

After receiving LeClerc's hearing request, the Secretary

obtained the following Hepatitis-related medical records: (1) a

December 1990 emergency room record stating that LeClerc had come

in for an examination because his live-in girlfriend had tested

positive for Hepatitis B ; (2) blood work results from December

1990 and January 1991 showing positive test results for the

virus; and (3) D r . Bundschuh's notes from the same period indicating that LeClerc "has been tired on and off for quite some

time" and is "definitely infectious." Other than a fleeting

reference in an October 1992 record relating to an emergency room

visit for back and chest pains, the record contains no further

1 LeClerc's request for remand only raises issues relating to his infection with Hepatitis B . Consequently, I do not address the facts concerning LeClerc's back impairment other than to incorporate by reference the parties' related stipulations of facts.

2 medical evidence relating to LeClerc's infection with Hepatitis

B.

At the hearing, LeClerc elected to proceed pro s e . After

questioning LeClerc about his back problems, the ALJ asked him

whether he suffered from any other impairments. LeClerc replied

"I have a lot of stress, the Chiropractor says, in the shoulders

and neck. I [also] have Hepatitis B ; which makes me very tired

all the time." The following exchange then ensued:

ALJ: What are we taking for that?

CLT: Nothing. They told me to eat a lot of sweets.

ALJ: Eat a lot of sweets? What does that do?

CLT: That helps keep your liver functional.

ALJ: You say that tires you out? ...

CLT: O h , yes.

ALJ: Is it something that varies from day to day or -- CLT: N o , it's constant. ALJ: How about sleeping? Do you have any problems sleeping at night?

CLT: Yea, because I sleep during the day.

ALJ: Okay. Is that a nap?

3 CLT: When I'm tired I just lay down and sleep like three hours and when it's time to go to bed at 10:00 at night, when I go to bed I just toss and turn and toss until about 3:00 in the morning and then I finally doze off.

ALJ: Have you tried not taking a nap in the day time so you could do better at night? CLT: I don't think I could make it until the night?

ALJ: Okay. Do you routinely lie down at a certain time of day?

CLT: It's around 3:00?

ALJ: And you wake up for dinner?

CLT: Yeah.

Hepatitis was mentioned once more during the hearing, when

LeClerc identified D r . Bundschuh as the physician who "takes care

of my blood work and my Hepatitis." The ALJ did not incorporate

LeClerc's fatigue complaints into the hypothetical she posed to the testifying vocational expert.

Applying the sequential analysis outlined in

, the ALJ subsequently determined that LeClerc was not

disabled. She found that LeClerc's ruptured disc was a severe

impairment that prevented him from returning to his past work as

a materials handler, but concluded that he retained the residual

functional capacity to perform light work "reduced by the need to

stand after 20 minutes of sitting, and no working at unprotected

4 heights or on unprotected concrete surfaces." Based upon the

vocational expert's testimony that there were a significant

number of jobs in the national economy which LeClerc could still

perform, the ALJ concluded that LeClerc was not disabled. The

ALJ's opinion did not mention Hepatitis B or LeClerc's claim that

the virus left him constantly fatigued.

II. DISCUSSION

LeClerc requests that I remand his case because he did not

knowingly and intelligently waive his right to be represented at

his disability hearing and was prejudiced by the absence of

counsel. LeClerc's allegations of prejudice are essentially

threefold: first, the ALJ failed to obtain recent medical

records concerning his infection with Hepatitis B (which he alleges would corroborate his subjective complaints of Hepatitis-

related fatigue); second, that she improperly discredited his

subjective fatigue complaints; and third, she consequently failed

to incorporate these complaints into the hypothetical posed to

the vocational expert who testified at the hearing.

While I note that LeClerc asserts these three separate forms

of prejudice, the facts of this case indicate that the first may

warrant remand irrespective of a valid waiver of counsel or the

5 presence of the other two. 2 Consequently, I leave the latter

allegations of prejudice for a subsequent order (if necessary)

and focus on whether a remand is required by the ALJ's failure to

request additional medical records that might corroborate

LeClerc's subjective fatigue complaints.

Pursuant to

(g), a district court "may at any

time order additional evidence to be taken before the Secretary,

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 . . . ." (West Supp. 1994). The statute thus imposes

three requirements -- newness, materiality and good cause -- that

must be satisfied before a district court may remand a case to

the Secretary to obtain additional evidence. Evangelista v . Secretary of Health & Human Servs.,

(1st Cir.

1987).

2 If LeClerc is entitled to a remand based on the ALJ's failure to obtain the more recent medical records, the ALJ must necessarily reevaluate her assessment of LeClerc's subjective pain complaints in light of the evidence these records contain. I therefore would not need to determine whether, in her original disposition of LeClerc's claim, the ALJ improperly discredited his subjective pain complaints and thus improperly excluded them from the hypothetical she posed to the vocational expert.

6 The parameters of these three requirements are relatively

well settled. First, evidence is new if it is non-cumulative,

factual and has not been previously presented to the ALJ.

. Second, evidence is material if its inclusion in the

record is necessary to afford the claimant a fair hearing. Id.;

Heggarty v . Secretary of Health & Human Servs.,

9 0 , 997

(1st Cir. 1991). In other words, had the evidence been

considered, the ALJ's decision "might reasonably have been

different." Evangelista,

(quoting Falu v .

Secretary of Health and Human Services,

4 , 27 (1st Cir.

1983)). Finally, there are several legally adequate causes for

the failure to incorporate the new and material evidence into the

record at a disability hearing, one of which is the presiding

ALJ's failure to adequately develop the facts concerning a

claimant's impairments. Haggerty,

. This duty is heightened where the [claimant] is unrepresented, where the claim itself seems on its face to be substantial, where there are gaps in the evidence necessary to a reasoned evaluation of the claim, and where it is within the power of the administrative law judge, without undue effort, to see that the gaps are somewhat filled -- as by ordering easily obtained further or more complete reports or requesting further assistance from a social worker or psychiatrist or key witness.

at 997 (quoting Currier v . Secretary of Health, Ed. and

7 Welfare,

9 4 , 598 (1st Cir. 1980)).

The moving party bears the burden of establishing that the

above three requirements have been met. Evangelista,

. Consequently, "[t]he party seeking the remand must present

to the court the evidence it hopes to submit in the

administrative proceeding should remand be granted or at least a

general showing of the nature of the evidence." Falu,

(quoting King v . Califano,

9 7 , 599 (4th Cir.

1979)). Where the existence and content of the additional

evidence is undisputed and/or clearly discernible from testimony

and other existing record evidence, the moving party may rely on

this evidence to carry her burden rather than produce the

additional evidence he or she hopes to submit. See Heggarty,

. In no case, however, is it sufficient to

simply allege that additional evidence exists. Falu,

.

Here, LeClerc does just that. He merely suggests that some

additional, Hepatitis-related medical records may exist that have

not been requested by the Secretary. He has not presented me

with copies of these records or provided any other evidence

establishing their existence and content. Moreover, their

existence and content is neither undisputed (the Secretary

8 contends that no such records exist) nor clearly discernable from

the present record. Consequently, I am unable to determine

whether new and material evidence exists that would justify

remanding LeClerc's claim to the Secretary for further hearing.

At the original hearing, however, LeClerc did testify that he was

currently suffering from Hepatitis-related fatigue, and there is

no indication that the presiding ALJ attempted to document the

present state of LeClerc's disease or leave the record open for

LeClerc to do s o . I therefore will give LeClerc an additional

ten days to produce the alleged medical records or other evidence

from which I can determine whether the records are new and

material.

III. CONCLUSION For the foregoing reasons, I withhold final decision on

LeClerc's motion for remand (document n o . 7 ) for ten days. If,

within that time, LeClerc provides the Court with evidence

demonstrating the newness and materiality of the additional

medical records that the Secretary allegedly failed to obtain, I

will remand his claim so that the Secretary may rectify this

9 error. If LeClerc fails to make a satisfactory showing, I will

address the remaining arguments presented in his motion for

remand.

SO ORDERED.

Paul Barbadoro United States District Judge

August 4 , 1994

cc: Raymond Kelly, Esq. David Broderick, Esq., AUSA

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