1 United States Court of Appeals,

Fifth Circuit.

No. 94-11099

Summary Calendar.

Travis RIPLEY, Plaintiff-Appellant,

v.

Shirley S. CHATER, Commissioner of Social Security, DefendantAppellee.

Oct. 30, 1995.

Appeal from the Uni ted States District Court for the Northern

District of Texas.

Before WISDOM, JOLLY and JONES, Circuit Judges.

WISDOM, Circuit Judge.

Travis Ripley appeals from the district court's grant of

summary jud gment which upheld the Secretary's denial of Social

Security disability benefits. Because there is new, material

evidence relating to Ripley's disability claim and the decision of

the administr ative law judge is not supported by substantial

evidence, we reverse and remand to the district court with

instructions that this case be sent back to the administrative

level for additional proceedings.

I.

A. Procedural History

Travis Ripley, the appellant, has been complainin g of back

pain since 1988. On December 6, 1991, Ripley filed an application

for Title II Social Security disability bene fits for a period1 According to the record, Ripley's eligibility for Title II

disabilities benefits ended on December 31, 1992.

2 Before this injury, Travis Ripley was employed as a

telephone installer/repairman, a job requiring bending, lifting,

and carrying heavy objects. Since the accident, Ripley has not

returned to work.

3 The report noted that Ripley had been unable to sit due to

the pain.

2 beginning on July 1, 1988. 1 The state agency and the Social

Security Administration denied his application and his request for

reconsideration. On November 5, 1992, a hearing was held, at

Ripley's request, before an administrative law judg e (ALJ). On

December 16, 1992, the ALJ found that Ripley was not disabled.

After the Appeal's Council refused his request for review, Ripley

filed a complaint seeking review of the ALJ's decision in the

United Sta tes District Court for the Northern District of Texas

under 42 U.S.C. § 405(g). On September 13, 1994, after reviewing

the magistrate's recommendation, the district court granted summary

judgment in favor of the Commissioner, upholding the denial of

disability benefits. Ripley appeals.

B. Factual/Medical History

Travis Ripley injured his back while building a shed. 2 After

the injury, Ripley began making frequent trips to the Olin E.

Teague VA Medical Cen ter complaining of back pain which radiated

down his right leg and numbness in the sole of his right foot. The

pain allegedly increased with sitting or standing. 3 The results of

a CT scan revea led that Ripley had a herniated L5-S1 disc with

compression of the right S1 nerve root. On September 30, 1988, Dr.3

Kirby Hitt, an orthopedic surgeon, perf o rmed a partial

hemilaminectomy and a discectomy at L5-S 1, with a partial right

medial facetectomy on Ripley. At the time of his discharge, Ripley

was able to move freely, but he repor ted numbness over his right

fifth toe.

Ripley returned to the VA clinic on many occasions after his

surgery. Initial reports indicated that his condition was

improving. But later, Ripley complained about the pain and

numbness returning. The medications and physical therapy were not

relieving his symptoms. On April 23, 1990, Dr. Clark took x-rays

of Ripley's back which revealed that "the lumbosacral disc space is

questionably narrowed today whereas it appeared normal previously"

and that there were signs of "que stionable degenerative disc

disease at the lumbosacral level". On May 31, 1990, X-rays showed

a mild retrolisthesis at L5 on S1, but were otherwise negative. On

November 29, 1990, Ripley was diagnosed with chronic l ower back

pain after his condition had not improved. A second CT scan, taken

on August 16, 1991, indicated, according to the record, that Ripley

had "a herniated disc centrally and to the right which encroaches

upon the fecal [sic] sac." The possibility of a second surgery was

raised.

On November 7, Ripley received caudal block injections which

relieved some of his back pain, but not all of his other symptoms.

The doctor testified concluded that Ripley was suffering from a

recurrent herniated disc, and scheduled an appointment with Ripley

to discuss the possibility of additional surgery.4 On the way to the hearing, Ripley had to ride in the back

of a station wagon because he was unable to sit for the entire

eight-three mile trip.

4 On December 11, 1991, Ripley was sent for more physical

therapy where he was taught back strengthening exercises. X-rays

were also taken which revealed a mild narrowing of the L5-S1 disc

space, but no significant change in his condition.

On July 29, 1992, Ripley returned to the clinic complaining of

pain which resulted from sitting or standing. A myelogram revealed

a "mild anter ior extradural impression on thecal sac at L4-L5

consistent with mild bulging of L4-L5 disc

... No definite

evidence of encroachment upon nerve roots at L4-L5 or L5-S1 noted".

The post-myelogram CT sca n indicated that there is a small

herniated nucleus pulpous at L4-L 5, but no encroachment upon the

thecal sac.

At his hearing on November 5, 1992, Ripley testified that he

is unable to do most of the work around his house because he cannot

sit or stand for more than thirty or forty minutes at a time. In

addition, he can sleep only for t hree to four hours a night.

Ripley also testified that he participates in limited outside

ac tivities. He attends church on Sundays, but is unable to sit

through the entire service. He is able to drive or ride in a car,

but only for short periods of time. 4 Despite his complaints, the

ALJ denied Ripley's claim for disability.

In October 1993, after the Appeals Council refused to review

Ripley's claim, MRI studies revealed that Ripley had a central and

right herniated disc at the L5-S1 which affected the L5 nerve root5 The doctors performed an L-5 right laminectomy, L4-L5

discectomy, posterolateral fusion and a posterior iliac crest

bone graft.

6 Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994),

cert. denied --- U.S. ----, 115 S.Ct. 1984, 131 L.Ed.2d 871

(1995).

5 and may have affected the S1 nerve root. On February 2, 1994,

Ripley underwent a dditional surgery. 5 The operation revealed the

presenc e of significant scar tissue from the original L5-S1

discectomy on the right and scarring of the nerve root to the

lateral wall of the canal. Despite this new evidence, the district

court denied Ripley's claim by granting summary judgment in favor

of the Commissioner on September 13, 1994.

II.

On appeal, Ripley raises three issues. First, Ripley argues

that the district court erred in refusing to remand this case to

the administrative level so that new medical evidence could be

considered. Second, Ripley argues that the ALJ used an improper

legal standard in evaluating his subjective complaints of pain.

Finally, Ripley maintains that the ALJ failed to fulfill his duty

to develop the record fully and fairly in relation to Ripley's

ability to perform substantially gainful work.

Our re view of the Secretary's decision is limited to

determining whe t her that decision is supported by substantial

evidence and wh ether the proper legal standards were applied. 6

"Substantial evidence is such relevant evidence as a reasonable7 Id. (citing Richardson v. Perales, 402 U.S. 389, 401, 91

S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)).

8 Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.1993).

9 42 U.S.C. § 405(g).

10 Id.; Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th

Cir.1989).

11 42 U.S.C. § 405(g); Latham v. Shalala, 36 F.3d 482, 483

(5th Cir.1994).

12 See Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir.1989).

13 Haywood, 888 F.2d at 1471.

6 mind might accept to support a conclusion." 7 It is "more than a

mere scintilla and less than a preponderance". 8 Any findings of

fact by the Secretary which are supported by substantial evidence

are conclusive. 9 In our review, we do not reweigh the evidence nor

do we substitute our judgment for that of the Secretary. 10

A.

First, Ripley argues that the district court should have

remanded his case to the administrative level because of the new

evidence obtained from his second surgery. We agree. When new

evidence becomes available after the Secretary's decision and there

is a reasonable probability that the new evidence would change the

outcome of the decision, a remand is appropriate so that this new

eviden ce can be considered. 1 1 To justify a remand, 42 U.S.C. §

405(g) requires that the evidence is "new" and "material" as well

as a showing of "good cause" for failing to provide this evidence

at the original proceedin gs. 1 2 We review new evidence only to

determine if a remand is appropriate. 1314 Latham, 36 F.3d at 483; Haywood, 888 F.2d at 1471;

Bradley v. Bowen, 809 F.2d 1054, 1057-8 (5th Cir.1987). Evidence

is not material if it relates to a disability or to the

deterioration of a previously non-disabling condition resulting

after the period for which benefits are sought. Falco v.

Shalala, 27 F.3d 160, 164 (5th Cir.1994); Haywood, 888 F.2d at

1471.

7 In this case, all parties have agreed that the evidence of

scarring from Ripley's initia l surgery is new. This information

was not known until Ripley had his second back operation, after the

ALJ had made his decision.

Reviewing the materiality of new evidence requires us to make

two separate inquiries: (1) whether the evidence relates to the

time period for which the disability benefits were denied, and (2)

whether there is a reasonable probability that this n ew evidence

would change the outcome of the Secretary's decision. 1 4 The new

evidence in this case meets both criteria.

The evidence of scar tissue obtained during the second

surgery relates to the period fo r which disability benefits are

sought. This tissue resulted from the initial surgery, in 1988,

and was not a condition which developed after the ALJ's decision.

Therefore, any consequences resulting from its presence are

material.

We also find that there is a reasonable probability that this

ne w evidence would have affected the outcome of the Secretary's

decision. In finding that Ripley was not disabled, the ALJ

rejected Ripley's subjective complaints of pain because of a lack

of objective medical testimony to substantiate his complaints. It

seems to us that the new evidence provides an objective basis for15 Pierre, 884 F.2d at 803.

8

Ripley's subjective complaints; on the basis of that evidence, the

ALJ could have found that Ripley was suffering from a disabling

condition. We conclude, therefore, that this new evidence is

material to the determination of Ripley's disability claim.

Finally, there is good cause for the failure to include this

evidence in the initial proceedings. Although evidence obtained

after the ALJ's d ecision does not automatically satisfy the good

cause requirement just because of its recent origin, 1 5 Ripley had

a legitimate reason why this evidence was not p roduced earlier.

Major medical procedures such as back surgery are not entered into

lightly. Ripley's complaints of pain had to be examined and

evaluated to determine what medical treatment was best for Ripley.

Ripley could not just walk into the hospital and receive back

surgery on demand. Although back surgery had been suggested on two

occasions before the ALJ's decision, the ultimate judgment as to

whether back surgery was necessary and when it should be performed

rested with the treating physicians. In 1994, after the ALJ had

de nied Ripley's disability claim, Ripley's doctor felt that the

surgery was necessary. Because the qualified judgment of Ripley's

doctors was r esponsible for the delay in the availability of

evidence relating to the scar tissue, we conclude that Ripley has

demonstrated good cause for failing to produce this evidence during

the initial hearings.

The new evidence in this case seems to meet all of the

criteria of 42 U.S.C. § 4 05(g). We reverse the district court's16 56 Fed.Reg. 57928 (Nov. 14, 1991); 20 C.F.R. § 404.1529

(1994).

17 56 Fed.Reg. 57928; 20 C.F.R. § 404.1529.

18 The ALJ found that "[t]he claimant's allegations of pain

and other disabling symptoms are not substantiated by the medical

evidence to the extent alleged and are not sufficiently credible

to support a finding of disability". Record Vol. 2 at 30.

9 grant of summary judgment, and remand with directions that the case

be sent back to the administrative level for additional proceedings

to consider th e new evidence. In addition, Ripley's subjective

complaints of pain should be reevaluated because there is a new,

objective basis that could support his statements.

B.

Ripley's next argument is that the ALJ used an improper legal

standard in reviewing his subjective complaints of pain. To prove

disabil ity resulting from pain, an individual must establish a

medically determinable impairment that is cap able of producing

disabling pain. 16 Once a medical impairment is established, the

subjective complaints of pain mu st be considered along with the

medical evide nce in determining the individual's work capacity. 1 7

Ripley argues that he is entitled to a remand because the ALJ did

not follow this two-step process. We disagree.

The ALJ found that there was no medical impairment capable of

producing the alleged pain. 1 8 Because the first inquiry was

answered in the negative, the ALJ was not required to proceed to

the second. Therefore, we conclude that Ripley has not established19 At this point, our review of the ALJ's findings is only to

determine if the ALJ followed the proper legal procedures. We

are not commenting on whether the findings are supported by

substantial evidence.

20 Pierre, 884 F.2d at 802; Kane v. Heckler, 731 F.2d 1216,

1219 (5th Cir.1984).

21 Kane, 731 F.2d at 1219.

22 Id. at 1220. Prejudice can be established by showing that

additional evidence would have been produced if the ALJ had fully

developed the record, and that the additional evidence might have

led to a different decision. Id.

23 The medical reports that are reviewed during the

administrative hearings should include "[a] statement about what

you can still do despite your impairment(s) based upon the

medical source's findings". 20 C.F.R. § 404.1513(b)(6) (1994).

10 that the ALJ failed to apply the proper legal test. 19

C.

Finally, Ripley argues that the ALJ failed to develop the

record fully and fairly when he concluded that Ripley was capable

of performing sedentary work, even though there was no medical

testimony supporting this conclusion. We agree with Ripley that

the ALJ's conclusion was not supported by substantial evidence.

The ALJ has a duty to develop the facts fully and fairly

relating to an applicant's claim for disability benefits. 20 If the

ALJ does not satisfy his duty, his decision is not substantially

justified. 21 Reversal of his decision, however, is appropriate only

if the applicant shows that he was prejudiced. 22

Usu ally, the ALJ should request a medical source statement

describing the types of work that the applicant is still capable of

performing. 23 The absence of such a statement, however, does not,24 "Although we will request a medical source statement about

what you can still do despite your impairment(s), the lack of a

medical source statement will not make the report incomplete."

Id.

25 Sedentary work involves sitting for about six hours out of

an eight hour work day and occasionally lifting items weighing no

more than 10 pounds. Lawler v. Heckler, 761 F.2d 195, 197-8 (5th

Cir.1985). See also 20 C.F.R. § 404.1567(a) (1994). Having to

alternate between sitting and standing in order to work the

entire day does not fit within the definition of sedentary work.

Scott v. Shalala, 30 F.3d 33, 34 (5th Cir.1994).

26 20 C.F.R. § 404.1546 (1994).

11 in itself, make the record incomplete. 24 In a situation such as the

present one, where no medical statement has been provided, our

inquiry focuses upon whether the decision of the ALJ is supported

by substantial evidence in the existing record.

The evidence that was available for review by the ALJ shows

a four year history of surgery, medical examinations, and

complaints of pain. From this evidence and Ripley's testimony at

trial, the ALJ concluded that Ripley was capable of performing

sedentary work. 25 Based upon that finding, the ALJ applied the

Medical-Vocational Gu idelines and concluded that Ripley was not

disabled.

The ALJ is responsible for determining an applicant's residual

functional capacity. 26 After considering the evidence, however, we

conclude that the ALJ's determination that Ripley was capable of

performing sedentary work was not supported by substantial

evidence. The record includes a vast amount of medical evidence

establishing that Ripley has a problem with his back. What the

record does not clearly establish is the effect Ripley's condition27 The Commissioner argues that the medical evidence

substantially supports the ALJ's conclusion. In making this

argument, the Commissioner points to reports discussing the

extent of Ripley's injuries. Without reports from qualified

medical experts, however, we cannot agree that the evidence

substantially supports the conclusion that Ripley was not

disabled because we are unable to determine the effects of

Ripley's conditions, no matter how "small", on his ability to

perform sedentary work.

28 Ripley testified that he was unable to sit or stand for

any length of time without experiencing a great deal of pain.

The ALJ concluded that Ripley was capable of sitting for six

hours of a work day because Ripley admitted that he went to

church, rode in a car for an hour and a half to attend the

hearing, and occasionally drove. Record, Volume 2 at 28 and 30.

What the ALJ failed to consider was Ripley's testimony regarding

limitations in performing these tasks. Ripley admitted that he

could not sit through an entire church service, that he had to

lie down in the back of a station wagon on the way to the

hearing, and that he would occasionally drive for short distances

only.

29 See 20 C.F.R. § 404.1527(c)(3) (1994) (requiring the

recontacting of the treating physicians to obtain additional

information regarding an applicant's ability to work when the

record is insufficient to make a determination of whether an

applicant is disabled).

12 had on his ability to work. 27 The only evidence regarding Ripley's

ability to work came from Ripley's own testimony. 28 Therefore, on

remand, we instruct the ALJ to obtain a report from a treating

physician regarding the effects of Ripley's back condition upon his

ability to work. 29

III.

In sum, we REVERSE the grant of summary judgment and REMAND

this case to the district court with instructions that this case

should be sent back to the administrative level for additional

proceedings. In these additional proceedings, the new evidence

from Ripley's 1994 surgery should be considered, Ripley's13

subjective complaints of pain should be reevaluated, and a report

regarding the impact of Ripley's condition upon his ability to work

should be obtained from a treating physician and should be reviewed

before a determina t ion of Ripley's eligibility for disability

benefits is determined.