APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
Before: SEITZ, Chief Judge, SLOVITER and BECKER, Circuit Judges
Francisca Torres appeals from the district court's grant of summary judgment affirming the Secretary of Health and Human Services' decision to terminate benefits contingent upon her continued disability. This court has jurisdiction under 28 U.S.C. § 1291 (1976).
Torres applied for disability insurance benefits in 1978. The Secretary determined that she suffered from depressive neurosis and was entitled to benefits. In January, 1980, Dr. Talaxi Shah examined her at the request of the Secretary. After Dr. Shah's examination, the Secretary determined that Torres' medical condition had improved and that she was no longer disabled. Her disability insurance and Supplemental Security Income benefits were terminated in March 1980. The administrative law judge (ALJ), affirmed by the Appeals Council, upheld the decision to terminate, which thus became the final decision of the Secretary. Torres sought review in the district court pursuant to 42 U.S.C.A. § 405(g) (West Supp. 1982) and 42 U.S.C. § 1383(c) (3) (1976). The district court granted the Secretary's motion for summary judgment. Torres appeals.
Torres raises two issues in this court: (1) whether substantial evidence supports the Secretary's determination; and (2) whether the district court should have remanded to the Secretary for consideration of new evidence.
The parties agree that Torres is not entitled to benefits unless she is disabled, i.e., she is unable "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) (1976); 42 U.S.C. § 1382c(a) (3) (A) (1976). Torres is disabled within the meaning of the preceding sections "only if [her] physical or mental impairment or impairments are of such severity that [she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. § 423(d) (2) (A) (1976); 42 U.S.C. § 1382c(a) (3) (B) (1976).
The parties also agree that a claimant such as Torres has the burden of proof, or risk of nonpersuasion, in the initial proceeding of showing that she is "unable to return to her customary occupation." Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979). If a claimant makes such a showing, then the Secretary has the burden of proving that the claimant "has the capacity to perform jobs that exist in the national economy." Id.
The proceeding under review, however, was initiated after the Secretary's determination to terminate Torres' benefits. Torres argues that under these circumstances the Secretary's prior finding of her eligibility for benefits makes out a prima facie case of her continuing disability and entitlement to benefits. Under her theory, the burden of proof shifts to the Secretary to show that she is no longer disabled. The Government argues that the burden of proof as to disability remains on the claimant in a proceeding to terminate benefits. There is a split of authority as to which view is the better one. See Schauer v. Schweiker, 675 F.2d 55, 57-59 (2d Cir. 1982) (discussing the cases). Compare Cassiday v. Schweiker, 663 F.2d 745, 747, 749 (7th Cir. 1981) (burden shifts to Secretary), and Miranda v. Secretary, 514 F.2d 996, 998 (1st Cir. 1975) (same), with Crosby v. Schweiker, 650 F.2d 777, 778 (5th Cir. 1981) (per curiam) (burden does not shift), and Myers v. Richardson, 471 F.2d 1265, 1268 (6th Cir. 1972) (same).
Ordinarily, it is the administrative fact-finder rather than the reviewing court that is concerned with the burden of proof, unless the fact-finder placed the burden of proof on the wrong party. In this case we decide the question because the ALJ did not explicitly state to whom he allocated the burden of proof, and we think the factual question of disability or no disability is sufficiently close that the Secretary's decision of the factual question might have turned on who had the burden of proof.
We believe the view that the burden of proof remains with the claimant in a termination proceeding is the better one. First, there is support for that view in the Supreme Court's description of termination procedures in Mathews v. Eldridge, 424 U.S. 319, 336, 47 L. Ed. 2d 18, 96 S. Ct. 893 (1976), where the Court stated that, "[i]n order to establish initial and continued entitlement to disability benefits a worker must demonstrate that he is [disabled]," and that, "[t]o satisfy this test the worker bears a continuing burden of showing, by [appropriate medical means]," that he is disabled.
Second, there is support in the language of the statute, which states generally that, "An individual shall not be considered to be under a disability unless he furnishes such medical and other evidence of the existence thereof as the Secretary may require." 42 U.S.C. § 423(d) (5) (1976). This broad language is supportive of a reading of the statute that would place the burden of proof as to the medical basis of a finding of disability on the claimant at all times.
Third, we believe that the allocations of the burdens of proof in Rossi provide guidance on how the burden of proof should be allocated in a proceeding to terminate benefits. Although the cases on which Rossi relied do not appear to explain why the Secretary has the burden of showing that the claimant "has the capacity to perform specific jobs that exist in the national economy," we believe that the rule is correct even though the language of the statute appears neutral as to who has the burden of proof. The Rossi rule is consistent with the recognition that information as to the availability of jobs in the national economy is sophisticated information that most individuals do not have the resources to prove or disprove. The Secretary, on the other hand, has vast resources and information at his disposal. Thus, considerations of fairness and policy require that the Secretary bear the risk of non-persuasion on the element of disability on which the Secretary is in a better position than the claimant to ...