United States Court of Appeals
For the First Circuit
No. 00-1446
WANDA MILLS,
Plaintiff, Appellant,
v.
KENNETH S. APFEL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. D. Brock Hornby, U.S. District Judge]
Before
Boudin, Stahl and Lynch,
Circuit Judges.
Francis M. Jackson with whom Jackson & MacNichol was on
brief for appellant.
Richard Fox, Assistant Regional Counsel, Office of the Chief
Counsel, Region I, Social Security Administration, with whom Jay
P. McCloskey, United States Attorney, James M. Moore, Assistant
United States Attorney, and Robert J. Triba, Chief Counsel,
Region I, were on brief for appellee.
March 22, 2001
BOUDIN, Circuit Judge. This is an appeal from a denial
of social security benefits for disability and presents an issue
on which the circuits are divided, namely, the treatment of
proffers of new evidence on administrative review after the
initial administrative decision. The claimant is Wanda Mills.
Her present application for benefits was filed on December 23,
1996, and ultimately a hearing before an administrative law
judge ("ALJ") was held on November 17, 1997, at which Mills was
represented by counsel.
At the hearing, the controlling question was whether
Mills was subject to a "disability," which had lasted or could
be expected to last at least 12 months and which created an
"inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment." 42 U.S.C. § 423(d)(1)(A) (1994). Complex
regulations, administered by the Commissioner of Social Security
(the "Commissioner"), prescribe substantive standards and a
five-step protocol for making a disability decision. Goodermote
v. Sec'y of Health & Human Servs., 690 F.2d 5, 6-7 (1st Cir.
1982); 20 C.F.R. §§ 404.1520, 416.920 (physical impairments);
404.1520(a), 416.920(a) (mental impairments) (2000).1
1Part 404 of Title 20 regulates Disability Insurance, which
is available to those who have paid social security taxes for
the required period; Part 416 regulates Supplemental Security
-3-
On April 7, 1998, the ALJ issued his decision rejecting
Mills' claim. He found that Mills, born in 1955, had a high
school equivalency diploma (her formal education ended in 9th
grade). Her work history included brief stints as an assembly
line worker making small medicine bottles, and as a laundry
worker and chambermaid in a motel, but she had not worked since
late 1993. She had previous bouts of alcoholism and of
treatment for it, but had not used alcohol since November 1996.
The ALJ then discussed the physical and mental health evidence
on which Mills principally relied to show her disability.
On the physical side, she claimed right knee pain based
on a 1979 injury to the patella and said that the knee sometimes
gave out. But the medical examination showed no tenderness and
good stability, save for some unsteadiness in arising. The
examining doctor found that there was no objective evidence of
injury but that Mills "may have