and 03-1934 LLOYD CALDWELL v. Jo Anne B. Barnhart, Commissioner of Social Security

* The Honorable Frank J. Magill, Senior Circuit Judge, United States Court of Appeals
for the Eighth Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 03-1856 and 03-1934
LLOYD CALDWELL,
Appellant in 03-1934
v.
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL
SECURITY,
Appellant in 03-1856
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Civil No. 01-cv-01232
District Judge: The Honorable Joel A. Pisano
Submitted Under Third Circuit LAR 34.1(a)
November 21, 2003
Before: RENDELL, BARRY, and MAGILL,* Circuit Judges
(Opinion Filed: December 15, 2003)

-- 1 of 6 --

2
OPINION
BARRY, Circuit Judge
On October 28, 1997, Administrative Law Judge (“ALJ”) Richard L. De Steno
rejected Lloyd Caldwell’s Social Security disability benefits claim. The Appeals Council
denied review and Caldwell filed suit in the United States District Court for the District of
New Jersey. For reasons not relevant here, the parties then stipulated to, and the District
Court granted, a remand to the Social Security Administration (“SSA”). On March 6,
2000, prior to the hearing on remand, Caldwell’s attorney, Joel M. Solow, moved to
disqualify ALJ De Steno because (1) ALJ De Steno is blind, and (2) ALJ De Steno had
filed a grievance against Solow based on Solow’s alleged misconduct at prior hearings
before him. ALJ De Steno denied the motion.
On March 31, 2000, after a hearing before ALJ De Steno, Caldwell was again
denied disability benefits. Caldwell again sought relief in the District Court and, on
November 11, 2002, submitted two items to the Court for its consideration: (1) a letter
dated January 24, 2001 by ALJ De Steno to the Supreme Court of New Jersey, asking that
Solow be suspended for at least three months based on his conduct at the administrative
hearings; and (2) an order of the Supreme Court of New Jersey, entered April 3, 2001,
reprimanding, but not suspending, Solow for his conduct before ALJ De Steno. The
District Court, on November 21, 2002, found that ALJ De Steno should have recused

-- 2 of 6 --

3
himself and remanded the matter for reassignment to a different ALJ for “a fresh
consideration of Mr. Caldwell’s disability claim.” The Commissioner unsuccessfully
moved for reconsideration, and then filed a timely notice of appeal. Caldwell filed a
timely cross-appeal. We have jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. §
1291. We will vacate the order of the District Court and remand for further proceedings.
Because we write only for the parties and the District Court in this not precedential
opinion, we will recite only those facts necessary to reach our decision. In this appeal, the
Commissioner argues that the District Court erred in ordering reassignment of the case to
a different ALJ because it relied on materials that were never presented to the
Commissioner. The Commissioner claims that, at most, the District Court was authorized
to remand the matter to the Commissioner to consider the new evidence and determine
whether ALJ De Steno should have been replaced and that, in any event, no remand is
necessary because it was not appropriate to replace ALJ De Steno simply because he
sought to have Solow disciplined. Caldwell, on the other hand, contends that ALJ De
Steno should have been replaced because, inter alia, (1) the ALJ discounted the evidence
submitted by Caldwell’s counsel, Freeman and Bass, P.A., solely because the evidence
was submitted by that firm; (2) the ALJ was “actively involved in a collateral action
against” Solow; and (3) the ALJ is blind.
42 U.S.C. § 405(b)(1) provides that “[t]he Commissioner of Social Security is
directed to make findings of fact, and decisions as to the rights of any individual applying

-- 3 of 6 --

4
for a payment under this subchapter.” Section 405(g) further states, in relevant part, that:
The findings of the Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive . . . . The [district] court may . . . at any time
order additional evidence to be taken before the Commissioner of Social
Security, but only upon a showing that there is new evidence which is
material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding . . . .
We have interpreted the statute to mean that although a district court may exercise a
restricted review of the Commissioner’s findings, it has no fact-finding role in Social
Security cases. Grant v. Shalala, 989 F.2d 1332, 1338-39 (3d Cir. 1993); Hummel v.
Heckler, 736 F.2d 91, 93 (3d Cir. 1984). In the event new evidence is introduced after
the close of the administrative proceeding, a district court may remand to the
Commissioner for additional findings, but only if the new evidence is material and there
is good cause for not including that evidence as part of the administrative record.
Hummel, 736 F.2d at 93. With regard to a bias claim against an ALJ, a district court may
not make findings on its own if new evidence is introduced, but may remand the case so
that the Commissioner may make additional findings. Grant, 989 F.2d at 1338.
Applying this principle here, we find that the District Court erred in making a
factual determination with respect to the bias claim. The evidence that the District Court
cited, quoted, and relied upon – the January 24, 2001 Letter of ALJ De Steno to Chief
Justice Deborah T. Poritz of the Supreme Court of New Jersey and the April 3, 2001
order of the Supreme Court – were never presented to the Commissioner and were not
part of the administrative record. Caldwell, for his part, concedes that he presented new

-- 4 of 6 --

1Caldwell also argues that ALJ De Steno should have been replaced because he is 1
blind and because he discounted the reports of Caldwell’s medical experts, Drs. Friedman 2
and Dyer. The Appeals Council rejected these arguments and found no basis to assume 3
jurisdiction. JA 383. Given the District Court’s disposition of the matter, it did not reach 4
these issues. Given our disposition, neither do we. 5
5
evidence to the District Court. The Court, rather than ordering reassignment to and a new
hearing before a different ALJ, should have determined whether that evidence warranted
a remand to the Commissioner for the Commissioner’s consideration. In deciding
whether to remand, the District Court should have determined whether the letter and the
order constituted new and material evidence, and whether there was good cause for
Caldwell’s failure to proffer the evidence to the Commissioner in the first instance. 42
U.S.C. § 405(g). We will vacate the District Court’s order and remand so that the Court
can now make that determination. If the Court remands, the Commissioner should
consider the evidence, make a finding on the bias claim, and decide whether Caldwell is
entitled to a new hearing before a different ALJ.1
The Commissioner argues that no remand is necessary because the fact that ALJ
De Steno sought to have Solow suspended for his alleged misconduct simply does not
warrant his removal. This, however, is for the Commissioner to decide in the first
instance, and we do not intimate any opinion as to how this claim should be decided or
whether the appearance of impropriety standard used by the District Court was the
appropriate standard.
Finally, Caldwell, in his cross-appeal, argues that the Commissioner erred in

-- 5 of 6 --

denying him disability benefits. The District Court, however, neither made findings nor
drew conclusions as to the merits of his disability claim. As such, this issue is not ripe for
our consideration. See White v. Sullivan, 901 F.2d 94, 96 (8th Cir. 1990) (remanding the
case because the District Court did not address the merits of appellant’s claim for
disability benefits during a specific time period).
For the foregoing reasons, we will vacate the November 21, 2002 order of the
District Court and remand the matter for further proceedings in accordance with this
opinion.
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Maryanne Trump Barry
Circuit Judge
6

-- 6 of 6 --