# Daniel P. Cotter v. Patricia Roberts Harris, Secretary of Health and Human Services > Court of Appeals for the Third Circuit · February 20, 1981 · 642 F.2d 700 URL: https://www.frixlaw.com/law-library/cases/9467660 ## Case - **Full name:** Daniel P. COTTER, Appellant, v. Patricia Roberts HARRIS, Secretary of Health and Human Services - **Court:** Court of Appeals for the Third Circuit - **Decided:** February 20, 1981 - **Citations:** 642 F.2d 700; 1981 U.S. App. LEXIS 19997 - **Precedential status:** Published - **Opinion:** Concurring in part by Garth - **Judges:** Sloviter, Adams, Garth, Slovi-Ter - **Cited by:** 2,158 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9467660 ## How later opinions describe it (automated extraction) - holding that this court requires from “the ALJ not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected. In the absence of such an indication, the reviewing court cannot tell if significant pr… - stating that the ALJ must consider all evidence and provide an explanation for rejected evidence that would suggest a contrary disposition, and indicating that in most cases a sentence or short paragraph will suffice - stating that an “explanation from the ALJ of the reason why probative evidence has been rejected is required so that a reviewing court can determine whether the reasons for rejection were improper” - explaining that the an administrative decision should be accompanied by a clear and satisfactory explanation of the basis on which it rests so that the appellate court can review the decision - finding that the Court “need[s] from the ALJ not only an expression of the evidence s/he considered which supports the result, but also some indication of the evidence which was rejected”’ ## Opinion text GARTH, Circuit Judge, concurring in part and dissenting in part. I. The statutory standard by which a reviewing court is bound is found in 42 U.S.C. § 405 (g): “The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive...” The majority opinion appropriately commences its discussion by acknowledging this standard. Its subsequent analysis of the record reveals that, in this case, the standard was not met. The majority could not find substantial evidence in the record to support the Secretary’s finding that Mr. Cotter could perform his former job as a welder. Thus, the majority properly vacates the judgment of the district court and remands the proceeding to the Secretary. I am in full agreement with the majority’s statement of the standard, its analysis, and its disposition, and so I concur. My reason for writing separately is that I do not agree with the majority’s attempt to “engraft [its] own notions of proper procedures upon [this agency which is] entrusted with substantive functions by Congress.” Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 525 , 98 S.Ct. 1197, 1202 , 55 L.Ed.2d 460 (1978). Stated differently, the majority opinion holds no more than that there was insufficient evidence to support the Secretary’s finding. Had the majority opinion concluded at that point, as I suggest that it should have, I would have joined the opinion. But, unfortunately, it did not. Instead, the majority has imposed additional, and in my view, unauthorized requirements upon ALJs and hence, upon the Secretary. The opinion in obvious obiter dicta requires, for the first time in this circuit’s jurisprudence, that an ALJ explain and make specific findings as to why he has rejected certain evidence. These requirements, however, cannot be established in this case because, as I have stated, not only are the majority’s statements dicta, as they are superfluous to the holding of the court, but of more importance, they are not authorized by the controlling statute, and do not have a basis in the ease law of our circuit. II. Specifically, the majority opinion requires that an ALJ: (1) not only furnish an expression of the evidence supporting his result, but also indicate that evidence which he has rejected (maj. op. at 705); (2) explain “the reason why probative evidence has been rejected” (maj. op. at 706); and (3) “explain his implicit rejection of [conflicting] evidence” (maj. op. at 707). I have no quarrel with the first “additional” requirement which seeks an expression of the evidence supporting the result and an indication of the evidence which was rejected. I regard this requirement as nothing more than a different way of expressing our oft-stated principle that an ALJ must analyze all of the evidence and sufficiently explain the weight he has given to obviously probative evidence. See, e. g., Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979); Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). Thus, in the hypothetical case of an ALJ hearing evidence from doctors A and B that the claimant suffers from a psychiatric disorder, and testimony from doctors X and Y that the claimant does not, as I understand our present standard, the ALJ must consider the testimony of all four doctors. If the ALJ finds that the claimant does not *709 have a psychiatric disorder, it is therefore sufficient if he states one of the following: (1) I have considered all of the evidence, but for the reasons expressed, I credit the testimony of doctors X and Y and not the testimony of doctors A and B; or (2) I have considered all of the evidence and I predicate my findings on the testimony of doctors X and Y; or (3) I do not credit the testimony of doctors A and B. Obviously, there are countless other formulations which may be used, but they all amount to one and the same thing: the ALJ’s statements assure the reviewing court that all of the evidence has been examined by the ALJ and that there is ample support for his findings. Thus, to the extent that the majority opinion speaks in terms of indicating the evidence rejected or acknowledging the presence of conflicting evidence, in my view it is saying, in just another way, that the ALJ must consider all the evidence. Our cases require no less, and in this respect, I do not read the majority’s opinion as departing from the holdings of our prior precedents. 1 The second and third “additional” requirements which the majority imposes on an ALJ are that he must give reasons why he has explicitly or implicitly rejected probative evidence. In the context of my previous illustration, the majority accordingly would require that the ALJ who credits the testimony of doctors X and Y (that the claimant does not have a psychiatric disorder) must nevertheless explain and make findings as to why he has rejected the testimony of doctors A and B (who assert that claimant does have such a disorder). Thus, the majority would now require that an ALJ who has identified the evidence in the record which he credits and which support his findings, and who has explained the reasons for his findings, must now also explain why he has discredited or rejected conflicting testimony. It is for this reason that I must part company with the majority- I cannot deny that requiring an ALJ to explain why he has rejected certain testimony may be very helpful and indeed would give added assurance to a reviewing court in reaching its decision. The problem, however, with mandating that an ALJ make reciprocal negative findings and give reasons for rejecting evidence is that Congress has not required such action. Congress has been specific and unambiguous in what it does require: only that the Secretary’s (ALJ’s) findings be supported by substantial evidence. Once this predicate has been met, we are obliged to give such findings conclusive effect, without requiring more. Thus, as I understand the Congressional directive under which we operate, once we are satisfied that substantial evidence exists to support a particular finding, e. g., that an accident occurred on Tuesday, January 6, 1981, the ALJ need not furnish us with findings or reasons why the accident did not occur on Monday, January 5, or Wednesday, January 7. I have already made this same observation when I discussed the standard of review pertaining to findings of fact made by a district court judge in my dissent in Chalfant v. Wilmington Institute, 574 F.2d 739, 746 (3d Cir. 1978): Fairly read, the majority opinion stands for the proposition that, despite findings of fact made by the district court which cannot be overturned because they are supported by evidence, the presence in the record of additional evidence which has not been specifically mentioned by the district court permits a court of appeals to find its own facts, without being bound by the district court’s findings. I find that proposition completely unique and unsupportable. *710 There is no precedent for such a standard of review. To the contrary, this court and others have consistently held that a district court is not required to make findings on all the evidence presented if the findings that it does make are sufficient to support its ultimate conclusion. Furthermore, the district court need not make findings which assert the reciprocal negative of each of its affirmative findings. Rayonier Inc. v. Polson, 400 F.2d 909, 923 (9th Cir. 1968); see Bowles v. Cudahy Packing Co., supra, 154 F.2d at 894. Although I recognize that there may be distinctions in the fact-finding process between ALJs and district court judges, I find no reason or logic which would distinguish them in their fact-finding functions. 2 III. The reliance by the majority opinion on authorities in our circuit as requiring negative reciprocal findings and explanations for rejecting evidence is also misplaced. As I read the cases on which the majority relies, they require no more than assurance from the ALJ that he has made his findings from the whole record, that his findings are supported by substantial evidence, and that he has sufficiently articulated his reasons for arriving at his conclusions. It is true that this court may have elaborated upon the statutory standard in Hargenrader v. Califano, 575 F.2d 434 (3d Cir. 1978), when we required, where appropriate, a statement of “subordinate factual foundations.” In Hargenrader , quoting Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974), cert. denied, Baerga v. Weinberger, 420 U.S. 931 , 95 S.Ct. 1133 , 43 L.Ed.2d 403 (1975), we stated that an examiner’s findings should be as comprehensive and analytical as feasible and, where appropriate, should include a statement of subordinate factual foundations on which ultimate factual conclusions are based, so that a reviewing court may know the basis for the decision. This is necessary so that the court may properly exercise its responsibility under 42 U.S.C. § 405 (g) to determine if the Secretary’s decision is supported by substantial evidence. It is incumbent upon the examiner to make specific findings — the court may not speculate as to his findings. Hargenrader, supra, 575 F.2d at 437 . I share the doubts expressed by Judge Aldisert in his dissent in Hargenrader, supra, regarding the “power of this court to promulgate procedural rules regulating the manner of finding facts in the Social Security Administration,” Hargenrader, supra at 439 . Nevertheless, I recognize that we are now bound by Hargenrader’s additional requirement that an ALJ furnish subordinate factual foundations for affirmative evidence. Even so, this requirement really does no more than refine the statute’s mandate that there be substantial evidence supporting the affirmative findings, and is therefore far different from those requirements now set forth in the majority opinion. *711 My reading of the other cases which the majority cites as support for its thesis that an ALJ is required to explain an explicit or implicit rejection of evidence satisfies me that they establish no such requirements. In Kennedy v. Richardson, 454 F.2d 376 (3d Cir. 1972), we remanded because the Appeals Council relied on the finding of the examiner and rejected, without explanation, certain contradictory evidence it had received into the record but which was not in the record before the examiner. That case, therefore, requires no more than a harmonization of the evidence and findings where the Appeals Council receives evidence not in the record before the ALJ. See also Gachette v. Weinberger, 551 F.2d 39 (3d Cir. 1977). In Schaff v. Matthews, 574 F.2d 157 (3d Cir. 1978) and Smith v. Califano, 637 F.2d 968 (3d Cir. 1981), we held that some explanation is necessary where an ALJ rejects uncontradicted medical evidence which is opposed to his findings and conclusion. In both cases, however, the record did not disclose substantial evidence supporting the crucial element of the Secretary’s findings. Thus, neither decision stands for the proposition that where conflicting evidence appears and the ALJ makes a choice as to which he will credit, he must nevertheless explain his reasons for discrediting the evidence which he rejects. Nor does NLRB v. New York-Keansburg-Long Branch Bus Co., 578 F.2d 472 (3d Cir. 1978), an opinion to which the majority refers in its note 9, support the majority’s thesis. That case, which presented a question as to whether a collective bargaining agreement had been reached between the company and the union, falls within the genre of Schaff and Smith , in that it plainly holds that no substantial evidence supported the findings of the ALJ. The majority’s reliance on footnote 15 in Keansburg, 578 F.2d at 478 n. 15, is thus misplaced. A fair reading of that note reveals that in Keansburg, not only was there undisputed documentary evidence in the record opposed to the ALJ’s findings, see Schaff and Smith, supra, but in addition, there were serious internal inconsistencies in the ALJ’s decision. Indeed, in that very footnote, reference is made to the Chaifan t discussion to which I have referred above. Thus, Keansburg, as well as the other cases cited in the majority opinion, is in conformance with the precedents in our circuit and neither deviates from the statutory mandate nor attempts to establish standards at variance with that mandate. I agree that the Fourth Circuit cases cited by the majority would apparently require an explanation from the ALJ as to why he has rejected probative evidence. See, e. g., King v. Califano, 615 F.2d 1018 (4th Cir. 1980). As I have already observed, however, this requirement transcends the mandate of the statute and the requirements set forth in the eases of our court. Moreover, I find no compelling reason for placing this additional burden on the ALJ. Given the clear wording of the statute and our case law, I do not believe we can or should reverse an ALJ for failing to do that which Congress has not ordered. Congressional concerns have been satisfied if the ALJ considers all of the evidence in the record and makes his findings on that basis, explaining both the evidence supporting his findings and the reasons for his decision. IV. Thus, my disagreement with the majority opinion is divorced from its decision in this case. As stated, my sole objection to the majority opinion is that it attempts to depart from the standard which Congress has specified in 42 U.S.C. § 405 (g) governing our scope of review. As a court of appeals, we “are authorized only to adjudicate a specific case or controversy; ... we are not entrusted with rule-making authority.” Hargenrader, supra, 575 F.2d at 439 (Aldisert, J., dissenting). I do not find any authority in our circuit which requires that an ALJ explain his reasons for rejecting probative evidence, and certainly the statute itself does not so require. Moreover, if we are to adopt the requirement proposed by the majority, I think we should do so in a case which presents the *712 very issue. Such is not the situation in this appeal. Indeed, if a majority of this court is attracted to such an expansive standard, then I believe we should only adopt this judicial requirement after it has been considered by an en banc court. But even that action would leave me uneasy, for I believe that it is Congress that must establish the standard for review of agency action; such is not the function of the courts. See Vermont Yankee, supra, 435 U.S. at 558 , 98 S.Ct. at 1219 . I suggest that requiring an ALJ to explain an explicit or implicit rejection of evidence transgresses the explicit legislative mandate. Although I sympathize with claimants such as Mr. Cotter, the courts have never been vested with authority to let our sympathies run away with our judicial power. See, e. g., Smith v. Califano, supra, at 971 (Adams, J., concurring and dissenting). Thus, while I concur in the judgment of the court because the record does not reveal substantial evidence supporting the Secretary’s determination that Mr. Cotter can perform his former job as a welder, I dissent from so much of the majority opinion which attempts to establish additional requirements to which the Secretary must conform — requirements which have never been legislated by Congress. . I do not regard the language in Dobrowolsky v. Califano, 606 F.2d 403, 406-407 (3d Cir. 1979), see maj. op. at 706 n. 8, that an ALJ should “explicitly” weigh all of the evidence, as requiring more than what I have stated here. I therefore do not understand Dobrowolsky as providing any support for the additional requirements imposed upon ALJs by the majority. My view is substantiated by the analyses and holdings of the cases cited in Dobrowolsky in support of this proposition. Id. at 407 n. 10. . Several other statutes are virtually identical to the statute at issue here in prescribing a “substantial evidence” standard of review. For example, the National Labor Relations Act states: “The findings of the Board with respect to questions of fact if supported by substantial evidence on the record considered as a whole shall be conclusive.” 29 U.S.C. § 160 (e) and (f). Similarly, the Longshoremen’s and Harbor Workers’ Compensation Act provides: “The findings of fact in the decision under review by the Board shall be conclusive if supported by substantial evidence in the record considered as a whole.” 33 U.S.C. § 921 (b)3. In these other contexts, we have never gone beyond requiring an articulation of reasons for the actions taken by the hearing officers* Such an articulation is obviously necessary for our review. See, e. g., Sun Shipbuilding & Dry Dock Co. v. McCabe, 593 F.2d 234 (3d Cir. 1979) (an ALJ must make findings of fact and determine the validity of the longshoreman’s claim, which will be affirmed by the Benefits Review Board and a court of appeals if they are supported by substantial evidence); NLRB v. Armcor Industries, Inc., 535 F.2d 239, 245 (3d Cir. 1976) (Board must make “specific findings” as to the impact of unfair labor practices on the election process and clearly explicate the basis for its decision to issue a bargaining order). Despite the identity of these statutory standards, we have never required that a hearing officer provide negative reciprocal findings, explanations for rejecting evidence, or an articulation of reasons why evidence has not been credited in any of these other contexts. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9467660. Public record. Not legal advice.