Appeal from a judgment of the United States District Court for the Western District of New York, Telesca, Judge, affirming the decision of the appellee in denying claimant disability benefits and holding that claimant's due process rights were not violated. Reversed and remanded.
Before: FRIENDLY, MESKILL, and PIERCE, Circuit Judges.
This is an appeal from an order of the United States District Court for the Western District of New York, Michael A. Telesca, Judge, affirming the decision of the Secretary of Health and Human Services (Secretary) which denied appellant certain disability benefits. Appellant argues that there is no substantial evidence to support the findings of the Administrative Law Judge (ALJ) that he is not disabled and implicitly alleges that the ALJ applied the incorrect law. Appellant further alleges that the ALJ denied him procedural due process by basing his decision on evidence procured subsequent to the hearing, evidence which he was not permitted to confront and challenge.
We hold that the ALJ denied appellant procedural due process. We also hold that the ALJ applied the incorrect standard in reaching his conclusion that the appellant is not disabled. Consequently, we reverse the order of the district court and remand for further proceedings.
On March 25, 1981, appellant Townley filed an application for disability benefits under § 223 of the Social Security Act, as amended, 42 U.S.C. § 423, and for a period of disability under § 216(i) of the Social Security Act, as amended, 42 U.S.C. § 416(i). His application was denied, and he applied for reconsideration and a hearing upon review of his claim. A hearing was held before an Administrative Law Judge (ALJ), who considered the case de novo. On April 12, 1982, the ALJ affirmed the denial of benefits. This decision became final when it was affirmed by the Appeals Council on July 16, 1982. The Secretary's decision was then appealed to the district court, which denied appellant's application for a period of disability and disability insurance benefits. This appeal followed.
Appellant Townley is 55 years old and has an eighth grade education; he alleges disability as of September 29, 1980, based upon impairment of his right leg. Townley was hospitalized twice during the fall of 1980, with complaints of pain and numbness and a history of ulcer-like sores on his leg. Five doctors examined appellant and generally agreed that he suffered from chronic thrombophlebitis and severe cellulitis. In addition, they agreed that appellant could not tolerate activities which required sitting with his legs down for more than two hours or standing for extended periods of time.
Prior to the onset of this physical condition, appellant worked as a tractor-trailer driver. This required him to drive approximately three and a half hours at a time, unload trucks, and lift up to one hundred pounds. Appellant testified that, because of his health status, he now is unable to perform his previous work, is limited to fifteen minutes of standing or walking and one-half hour of sitting at a time, and can lift between twenty and twenty-five pounds.
Subsequent to the hearing, to aid in evaluating claimant's eligibility for disability benefits, the ALJ sent written interrogatories (including a hypothetical question),*fn1 the medical evidence, and a copy of the administrative record to Donald J. McDonald, a vocational expert for the Department of Health and Human Services. McDonald classified appellant's former truckdriving job as semi-skilled, requiring medium exertional work. In response to the hypothetical question posed by the ALJ, the expert determined that appellant possesses several skills which are transferable to a range of semi-skilled jobs, requiring sedentary or light exertional work. McDonald listed ten jobs which he asserted appellant could perform with these transferable skills and further stated that the identified ten jobs existed in significant numbers in the national economy.
After receiving McDonald's response on December 30, 1981, on January 4, 1982, the ALJ wrote to appellant's attorney and informed the attorney that he believed "the assistance of a vocational expert [was] necessary in order to arrive at a fair decision." While not mentioning that he had already received the expert's response, the ALJ asked appellant's attorney to submit additions or objections to the interrogatories posed to the expert. Appellant's attorney replied by letter dated January 7, 1982 and submitted two suggestions to the ALJ. He requested that the expert be asked to define the terms "light exertion" and "sedentary exertion" and he requested a modification in the hypothetical question describing appellant's daily activities to reflect the fact that "what we do in the home allows us to do so at our own pace, taking into consideration any limitations imposed upon us by impairments." The record does not reflect whether these suggestions were sent to the vocational expert.
In the same letter to the ALJ, appellant's attorney requested that he be permitted to cross-examine the expert at a hearing. On March 1, 1982, the ALJ replied that the expert could not attend a hearing for several months, invited further questions, and stated his intention to decide the case on the record.
By decision dated April 12, 1982, the ALJ found that appellant suffers from a severe impairment diagnosed as thrombophlebitis. Although the ALJ concluded that appellant could not return to his previous employment, he made no explicit finding concerning the level of exertion appellant was capable of sustaining. In finding that appellant is not entitled to a period of disability or disability benefits, he relied on the report of the vocational expert and found that appellant was able to perform a number of jobs available in the national company requiring sedentary or light exertional effort.
The district court reviewed the evidence and concluded that the ALJ's determination was supported by substantial evidence. Furthermore, the district court found that appellant's "due process arguments [did] not require a remand." The district court did not, however, consider whether the ALJ ...