judicata. " Brinker v. Weinberger, supra, 522 F.2d at 15.
The Secretary relies on Domozik v. Cohen, 413 F.2d 5 (3d Cir. 1969), as well as Moore v. Celebrezze, 252 F. Supp. 593 (E.D. Pa. 1966), aff'd per curiam, 376 F.2d 850 (3d Cir. 1967), in support of the Government's assertion that res judicata bars judicial review of the Secretary's final decision in this case. However, the facts here are drastically different from those reviewed by the Court of Appeals for the Third Circuit in either of the aforementioned opinions. In Domozik, the plaintiff had filed two applications prior to the third application presented for the court's consideration. After receiving adverse decisions on both prior applications, the plaintiff let a period of more than four years lapse without either seeking any further administrative review or attempting to reopen a decision of the Secretary for good cause or error. Only after this extensive time lag Domozik filed a third application for benefits. In Moore, the claimant waited more than five years after the final denial of his first application before he filed a second application for benefits. Because of the vastly different factual pattern in this case, I have no difficulty in construing plaintiff's second application for benefits as an effort to reopen a prior adverse determination, in compliance with the spirit, if not the letter, of the agency's regulations.
III. MOTION FOR SUMMARY JUDGMENT OR REMAND
The fundamental question in this case, then, is whether the Secretary's denial of benefits is supported by "substantial evidence" in the administrative record, that is, such "relevant evidence" as a "reasonable person might accept to support the conclusion" that Andres Saldana is not entitled to disability benefits. Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); See also Palmer v. Celebrezze, 334 F.2d 306, 308 (3d Cir. 1964). Consistent with the remedial purposes of the Social Security Act, the district court is also empowered to remand a case to the Secretary, on good cause shown, where relevant, probative and available evidence was not explicitly weighed in arriving at a decision on the plaintiff's claim for disability benefits. It is clear in this judicial district and circuit that lack of counsel in a social security disability hearing is not sufficient cause for remand, without some showing of either unfairness or clear prejudice at the administrative level. Domozik v. Cohen, supra. This case must be remanded for the taking of additional evidence for both good cause and clear prejudice in the administrative hearing have been well-demonstrated.
In part, the Administrative Law Judge's narrow view of his role in the administrative hearing, coupled with plaintiff's lack of legal counsel at that hearing, necessitate remand of this case. In response to questions from Mr. Soto, Saldana's only witness at the hearing, the Administrative Law Judge agreed to permit the plaintiff to submit after the close of the hearing any additional medical reports in support of his claim for disability benefits. Specifically, the Administrative Law Judge stated: "If there is any other evidence -- medical evidence, then you have the doctor send a report to me" (Tr. 37). The essential difficulty with the Administrative Law Judge's aforementioned statement is that it offered insufficient guidance to Mr. Saldana in presenting his claim for benefits. The plaintiff, as an unrepresented Spanish-speaking claimant, could not understand the niceties of the special earnings requirement of the Act without the assistance either of counsel or of the Administrative Law Judge. All the medical exhibits received as evidence at the hearing concerned illnesses which postdated the March, 1970 expiration of Saldana's insured status under the Act. At no time did the Administrative Law Judge tell either the plaintiff or Mr. Soto that medical records and/or lay testimony relating to Saldana's physical condition prior to March, 1970 had to be submitted in order for plaintiff to have even a colorable chance of securing an award of disability benefits. It was patently evident prior to the close of the hearing that Mr. Saldana did not understand the significance of the period of disability coverage. The only witness testifying on plaintiff's behalf at the administrative hearing had not seen Saldana during the critical period from the end of 1969, the alleged beginning of the disability, through March 31, 1970, the termination date for plaintiff's insurance coverage. However, it appears that other witnesses, aware of Saldana's condition prior to March 31, 1970, were available to testify on his behalf. Memorandum of Law in Support of Plaintiff's Motion for Summary Judgment, Exhibit "A". The Administrative Law Judge's willingness to review medical records submitted after the close of the hearing was of little aid to Mr. Saldana, who, infused with the hope of successfully persuading the Administrative Law Judge to grant his claim for benefits, would continue to submit irrelevant medical reports. Mr. Saldana was like a mariner setting sail on dark waters without a compass or a sextant to guide his way.
A panel of judges for the Court of Appeals for the Third Circuit, in an opinion authored by Judge Weis, recognized that:
Although the burden is upon the claimant to prove his disability, due regard for the beneficent purposes of the legislation requires that a more tolerant standard be used in this administrative proceeding than is applicable in a typical suit in a court of record where the adversary system prevails.
Hess v. Secretary of H.E.W., 497 F.2d 837, 840 (3d Cir. 1974).
Mr. Saldana, in his applications for benefits, noted that his first visit to Dr. Fishman took place in 1969 (Tr. 72, 82, 90). In accordance with Judge Weis' opinion in Hess, at the very least, the Administrative Law Judge had the responsibility to advise Mr. Saldana of the importance of medical records and/or testimony concerning his 1969 visits with Dr. Fishman, as well as the need for any other medical or lay evidence pertinent only to the pre-March, 1970 period. Here, in the absence of legal counsel to guide his client in the presentation of relevant evidence in support of his disability claim, the lack of such advice from the Administrative Law Judge was clearly prejudicial to the interests of Mr. Saldana.
In addition to the above, this case must also be remanded because of the Administrative Law Judge's failure to consider the subjective evidence of pain and disability presented by Mr. Saldana. Failure to consider such evidence provides good cause for remand. Although one sentence in the hearing decision makes mention of Saldana's complaints, the remainder of the brief opinion dwells on the fact that the medical evidence failed to substantiate any seriously disabling impairment during the period prior to March 31, 1970. However, it has been established, without question, that subjective complaints of pain, unaccompanied by objective medical data, may support a claim for disability benefits. Bittel v. Richardson, 441 F.2d 1193, 1195 (3d Cir. 1971). Pain, in itself, may be a disabling condition. Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, 420 U.S. 931, 95 S. Ct. 1133, 43 L. Ed. 2d 403 (1975). Mr. Saldana's complaints of pain dated back to 1969, prior to the end of his disability coverage (Tr. 25-26). While the Administrative Law Judge, as a finder of fact, has the right to reject the plaintiff's testimony entirely, he must state the reasons for his acceptance or rejection. Given the state of the present record, it is unclear whether the Administrative Law Judge even weighed Mr. Saldana's testimony.
The Social Security Administration and/or the Administrative Law Judge, in informing claimants of their right to representation by counsel in the administrative hearing, should also state that counsel is available to represent indigent claimants without charge. Any other notice of the right to legal representation would be of no value to indigent claimants, unable to retain private attorneys. Without this information it is farcical for the Secretary to maintain that a claimant waived his or her right to be represented by counsel. Cf. Rosa v. Weinberger, 381 F. Supp. 377, 381 (E.D.N.Y. 1974).
This action is REMANDED for the taking of additional evidence.
BY THE COURT:
A. Leon Higginbotham, Jr.
AND NOW, this 2nd day of July, 1976, consistent with the foregoing memorandum opinion, it is hereby
ORDERED and DECREED that this action is REMANDED to the SECRETARY for the taking of additional evidence. Both parties' motions for summary judgment are DENIED.
BY THE COURT:
A. Leon Higginbotham, Jr.