03 November 2007

American Law Review Evidence to Establish SSA Elibibility

152 A.L.R. Fed. 123 (Originally published in 1999)

American Law Reports
ALR Federal
The ALR databases are made current by the weekly addition of relevant new cases.

Order, based on new evidence provision of 42 U.S.C.A. § 405(g), that additional evidence be taken in administrative proceeding to establish eligibility for benefits under Social Security Act

Andrew M. Campbell, J.D.

Section 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) provides in part that federal district courts may remand to the Commissioner of Social Security actions by applicants for social security benefits challenging the administrative denial of their claim upon a showing that there is new and material evidence and there is good cause for failing to introduce the evidence earlier in the proceedings. In Cline v. Commissioner of Social Sec., 96 F.3d 146, 51 Soc. Sec. Rep. Serv. 706, Unempl. Ins. Rep. (CCH) ¶15553B, 35 Fed. R. Serv. 3d (LCP) 1273, 152 A.L.R. Fed. 721 (6th Cir. 1996), the court held that an applicant for disability benefits was not entitled to a remand under § 205(g) to require the Commissioner to examine a psychiatric evaluation of the applicant which was made after an administrative law judge denied the applicant's claim for total disability benefits. The court found that the claimant fell far short on the issue of "good cause" since the claimant's primary argument appeared to be that his legal representative was not sufficiently acquainted with him to determine his need for psychiatric evaluation.

TABLE OF CONTENTS

Article Outline
Index
Statutory Text
Table of Cases, Laws, and Rules
Research References

ARTICLE OUTLINE

I PRELIMINARY MATTERS
§ 1[a] Introduction—Scope
§ 1[b] Introduction—Related annotations
§ 2 Summary and comment
II TESTS FOR DETERMINING MATERIALITY OF EVIDENCE
§ 3 Reasonable possibility standard
§ 4 Reasonable probability standard
§ 5 Reasonable likelihood standard
§ 5.3 Relation back to period on or before prior administrative determination
§ 5.5 Discretion of court
III REQUESTS FOR REMAND BY APPLICANTS FOR BENEFITS
A Medical Evidence
1 Newness of Evidence
§ 6[a] Back injuries—Held new
§ 6[b] Back injuries—Held not new
§ 7[a] Other orthopedic injuries—Held new
§ 7[b] Other orthopedic injuries—Held not new
§ 8[a] Psychiatric illnesses—Held new
§ 8[b] Psychiatric illnesses—Held not new
§ 9[a] Neurological injuries—Held new
§ 9[b] Neurological injuries—Held not new
§ 10[a] Low mental functioning—Held new
§ 10[b] Low mental functioning—Held not new
§ 11[a] Heart disease—Held new
§ 11[b] Heart disease—Held not new
§ 12[a] Arthritis—Held new
§ 12[b] Arthritis—Held not new
§ 13[a] High blood pressure—Held new
§ 13[b] High blood pressure—Held not new
§ 14 Neuritis
§ 15 Diabetes
§ 16 Chronic fatigue syndrome
§ 17 Alcoholism
§ 18 Fibromyalgia
§ 19 Side effects of medicine
§ 20 Impaired vision
§ 21 Cerebrovascular disease
§ 21.5 Multiple conditions
§ 22 Unspecified medical evidence
2 Materiality of Evidence
§ 23[a] Back injuries—Held material
§ 23[b] Back injuries—Held not material
§ 24[a] Other orthopedic injuries—Held material
§ 24[b] Other orthopedic injuries—Held not material
§ 25[a] Psychiatric illnesses—Held material
§ 25[b] Psychiatric illnesses—Held not material
§ 26[a] Neurological injuries—Held material
§ 26[b] Neurological injuries—Held not material
§ 27[a] Low mental functioning—Held material
§ 27[b] Low mental functioning—Held not material
§ 28[a] Heart disease—Held material
§ 28[b] Heart disease—Held not material
§ 29[a] Arthritis—Held material
§ 29[b] Arthritis—Held not material
§ 30 Neuritis
§ 31[a] High blood pressure—Held material
§ 31[b] High blood pressure——Held not material
§ 32 Postpolio syndrome
§ 33 Chronic fatigue syndrome
§ 34 Fibromyalgia
§ 35 Side effects of medicine
§ 36 Hepatitis B
§ 37 Hemiplegic migraines
§ 38 Sarcoidosis of lung
§ 39[a] Alcoholism—Held material
§ 39[b] Alcoholism—Held not material
§ 40 Cancer
§ 41[a] Leg vein problems—Held material
§ 41[b] Leg vein problems——Held not material
§ 42 Whipple's disease
§ 43 Asthma
§ 44 Minor surgery
§ 45 Kidney problems
§ 46 Diabetes
§ 47 Pancreatitis
§ 48 Myasthenia gravis
§ 49 Epstein–Barre disease
§ 50 Charcot–Marie Tooth disease
§ 51 Unexplained general pain
§ 52 Addiction to painkillers
§ 53 Vision problems
§ 54 Other traumatic physical injury
§ 55[a] Unspecified medical evidence—Held material
§ 55[b] Unspecified medical evidence——Held not material
3 Good Cause for Failing to Present Evidence Earlier
§ 56[a] Hospitalization subsequent to administrative hearing—Back problems
§ 56[b] Hospitalization subsequent to administrative hearing—Other orthopedic problems
§ 56[c] Hospitalization subsequent to administrative hearing—Psychiatric illness
§ 56[d] Hospitalization subsequent to administrative hearing—Neurological injuries
§ 56[e] Hospitalization subsequent to administrative hearing—Heart disease
§ 56[f] Hospitalization subsequent to administrative hearing—Arthritis
§ 56[g] Hospitalization subsequent to administrative hearing—High blood pressure
§ 56[h] Hospitalization subsequent to administrative hearing—Crohn's disease
§ 56[i] Hospitalization subsequent to administrative hearing—Cancer
§ 56[j] Hospitalization subsequent to administrative hearing—Phlebitis
§ 56[k] Hospitalization subsequent to administrative hearing—Myasthenia gravis
§ 57 Lack of money
§ 58 Surprise
§ 59 De minimis late filing
§ 60 Failure to present existing evidence
§ 61[a] Unavailability of existing evidence—Good cause found
§ 61[b] Unavailability of existing evidence—Not found
§ 62[a] Lack of counsel—Good cause found
§ 62[b] Lack of counsel——Not found
§ 62.5 Unspecified medical evidence
§ 63[a] Report or evaluation prepared after administrative hearing—Back injuries—good cause found
§ 63[b] Report or evaluation prepared after administrative hearing——Not found
§ 63[c] Report or evaluation prepared after administrative hearing—Other orthopedic injuries—good cause found
§ 63[d] Report or evaluation prepared after administrative hearing——Not found
§ 63[e] Report or evaluation prepared after administrative hearing—Psychiatric illnesses—good cause found
§ 63[f] Report or evaluation prepared after administrative hearing——Not found
§ 63[g] Report or evaluation prepared after administrative hearing—Neurological injuries—good cause found
§ 63[h] Report or evaluation prepared after administrative hearing——Not found
§ 63[i] Report or evaluation prepared after administrative hearing—Low mental functioning—good cause found
§ 63[j] Report or evaluation prepared after administrative hearing——Not found
§ 63[k] Report or evaluation prepared after administrative hearing—Heart disease—good cause found
§ 63[l] Report or evaluation prepared after administrative hearing——Not found
§ 63[m] Report or evaluation prepared after administrative hearing—Chronic fatigue syndrome
§ 63[n] Report or evaluation prepared after administrative hearing—Alcoholism—good cause found
§ 63[o] Report or evaluation prepared after administrative hearing——Not found
§ 63[p] Report or evaluation prepared after administrative hearing—Sarcoidosis of lung
§ 63[q] Report or evaluation prepared after administrative hearing—Fibromyalgia
§ 63[r] Report or evaluation prepared after administrative hearing—Epstein–Barre disease
§ 63[s] Report or evaluation prepared after administrative hearing—Arthritis—good cause found
§ 63[t] Report or evaluation prepared after administrative hearing——Not found
§ 63[u] Report or evaluation prepared after administrative hearing—Carpal tunnel syndrome
§ 63[v] Report or evaluation prepared after administrative hearing—Unspecified medical evidence—good cause found
§ 63[w] Report or evaluation prepared after administrative hearing——Not found
B Nonmedical Evidence
1 Newness of Evidence
§ 64 Subsequent determination of disability by another agency
§ 65 Evidence of intent to leave wife
§ 65.5 Other evidence
§ 66 Evidence of validity of prior marriage
2 Materiality of Nonmedical Evidence
§ 67[a] Disability determination by another agency—Held material
§ 67[b] Disability determination by another agency—Held not material
§ 68 Disability determination by another administrative law judge
§ 69 Settlement by private disability insurer
§ 70 Evidence that disability benefits sought on voluntary basis
§ 71 Participation in family court program
§ 72 Affidavit regarding paternity
§ 73 Aging
§ 74 Evidence of treatment as wife
§ 75 Evidence of daily experiences
3 Good Cause for Failing to Introduce Evidence Earlier
§ 76 Disability determination by another agency
§ 77 Destruction of administrative record
§ 78 Inability to find school records
§ 79 Family history
§ 80 Evidence that disability benefits sought on voluntary basis
§ 81 Conviction for drunk driving
§ 82 W–2 form
§ 82.5 IRS letter
§ 83 Disability determination by another administrative law judge
§ 84 Letter explaining terms of workers' compensation award
§ 85 Briefs from workers' compensation hearing
§ 86 Evidence of treatment as wife
§ 87 Evidence of intent to leave wife
§ 88 Evidence of employment
IV REQUESTS FOR REMAND BY COMMISSIONER
§ 89 Request for remand granted
§ 90 —Denied
§ 91 Request for remand invited

INDEX

Abdomen, jerking of, §§ 15, 46
Abusive relationships with first two husbands, § 63[f]
Academic achievement, § 8[b]
Acute emphysema, § 22
Addiction or abuse, alcohol, §§ 8, 17, 25[b], 26[b], 39, 40, 47, 56[i], 60, 61, 63[n], 63[o], 81
Addiction to painkillers, § 52
Adjustment disorder with depressed mood, § 25[b]
Adjustment disorder with mixed emotional features, § 60
Affidavit regarding paternity, § 72
Agency, other, determination of disability by, §§ 64, 67, 76
Age of applicant, §§ 73, 90
Alcohol, discharge of firearm while intoxicated, §§ 39[b], 61[b]
Alcohol abuse and alcoholism, §§ 8, 17, 25[b], 26[b], 39, 40, 47, 56[i], 60, 61, 63[n], 63[o], 81
Alcohol use, drunk driving, § 81
Allergies, § 71
Amputation of leg, § 60
Anemia, § 39[b]
Angina, §§ 11, 22, 28, 41[a], 56[e], 63[k], 63[v]
Angioplasty, § 28[b]
Animals, violence toward, §§ 8[a], 25[a]
Ankle injuries or conditions, §§ 7[b], 12[a], 24[b], 29, 56[f], 83
Antalgic gait, § 24[b]
Anti-anxiety medication, §§ 25[a], 56[c]
Anti-coagulant, use of, § 41[b]
Anti-convulsive medication in blood, failure to undergo testing to determine level of, § 89
Anti-depressant drugs, § 25[b]
Anti-inflammatory drugs, § 12[a]
Antisocial personality, § 60
Anxiety, §§ 8[a], 25, 26[b], 56[c], 57, 62[a], 63[e], 63[f]
Applicants for benefits, requests for remand by, §§ 6- 88
Armenia, affidavits from neighbors in, §§ 25[b], 27[b], 63[f]
Arm injuries or conditions, §§ 7[a], 24[b], 28[b], 56[b], 63[a], 90
Arm pain, §§ 24[b], 28[b]
Arms and hands, overuse syndrome, § 24[b]
Arteriography, § 11[b]
Arthralgia of knees, §§ 6[a], 23[a]
Arthritis, §§ 9[a], 12, 18, 23, 24[b], 29, 56[f], 60, 61[a], 62[b], 63[f], 63[i], 63[j], 63[s], 63[t], 67[b], 68, 83, 90
Asbestosis, §§ 28[b], 63[v]
Asthma, §§ 43, 62[a], 63[i], 71, 89
Ataxia, § 63[h]
Atrophy of leg, § 90
Attack at work, § 54
Attention and concentration, §§ 10[a], 25[b], 26[b], 27, 28[a], 62[a], 63[i]
Attention deficit disorder, §§ 8[a], 25[a]
Attorney, lack of, and pro se representation, §§ 7[a], 10[b], 24[a], 62, 63[a], 63[f], 63[g]
Atypical psychosis, §§ 25[b], 60
Auschwitz, experience in, § 25[a]
Automobile, drunk driving, § 81
Automobile, qualification for handicapped placard for, § 51
Automobile accidents, §§ 60, 63[i], 63[w]
Avascular necrosis of hip, §§ 7[b], 24[b]
Bachelor's degree in fine arts, §§ 62[b], 63[f]
Back, neuritis affecting, §§ 14, 30
Back injuries or conditions, §§ 6, 10[a], 12[a], 13[b], 14, 19, 23, 24[b], 25[b], 26[b], 29, 30, 35, 39[b], 41[b], 49, 50, 55[a], 56[a], 60, 62, 63[a], 63[b], 63[e], 63[f], 63[h]- 63[j], 63[r], 63[w], 83, 90
Backlogs and process bogging down, §§ 60, 62[b], 63[b]
Back pain, §§ 6, 23, 24[b], 39[b], 41[b], 49, 50, 56[a], 62[a], 63[a], 63[b], 63[f], 63[i], 63[j], 63[r], 67[b], 83, 90
Back surgery, § 56[a]
Bad or good faith, §§ 57, 59, 63[i]
Bakery worker, § 12[a]
Balance problems, § 63[h]
Beauty operator, § 25[b]
Bed rest, limitation to, § 11[b]
Behavior, §§ 8, 9[b], 25[a], 60
Bell's palsy, § 31[a]
Bend, ability to, §§ 23[b], 27[a], 54
Biopsy, failure to obtain, § 63[j]
Bipolar disorder, §§ 25[a], 56[c]
Birth injury, §§ 9[a], 26[a], 62[a]
Blackouts, § 8[a]
Blockage of artery, § 28[b]
Blood disease, § 83
Boredom, §§ 25[b], 27[b]
Breathing difficulty, § 63[j]
Briefs from workers compensation hearing, § 85
Broad construction and liberal application of Social Security Act, § 3
Bronchitis, §§ 28[b], 63[v]
Bus driver, § 63[w]
Calculating benefits, remand for, § 91
Cancer, §§ 40, 56[i]
Car, drunk driving, § 81
Car, qualification for handicapped placard for, § 51
Car accidents, §§ 60, 63[i], 63[w]
Cardiac catheterization, §§ 28[a], 56[e]
Cardiologists' reports, § 23[b]
Carpal tunnel syndrome, §§ 7[b], 24[b], 60, 63[u]
Cashier, § 43
Cataracts, §§ 12[a], 29[a], 63[s]
Catheterization, § 90
Catheterization, cardiac, §§ 28[a], 56[e]
CAT scan, §§ 23[b], 28[a], 56[d], 90
Cerebral palsy, §§ 9[a], 26, 62[a], 63[g]
Cerebrovascular accident, history of, §§ 11[a], 28[a], 56[d]
Cerebrovascular disease, § 21
Cervical spine, degenerative arthritis of, §§ 12[a], 63[s]
Cervical spine, degenerative changes of, § 28[b]
Cervical spine, degenerative joint disease, § 23[a]
Cervical strain, §§ 70, 80
Charcot-Marie-Tooth disease, § 50
Chemical dependency evaluation, § 39[b]
Chest pains, §§ 11[a], 28, 31[a], 56[e], 63[j]
Chronic anxiety, §§ 8[a], 56[c]
Chronic depression, § 8[a]
Chronic fatigue syndrome, §§ 16, 33, 63[m]
Chronic intractable benign pain syndrome, §§ 70, 80
Chronic malnutrition, § 39[b]
Chronic obstructive pulmonary disease, §§ 28[b], 63[v]
Chronic sinusitis, §§ 12[a], 29[a], 63[s]
Cirrhosis of liver, §§ 17, 39
Cleaner, §§ 11[a], 28[a], 63[k]
Climb, ability to, §§ 23[b], 24[b]
Clothing factory, § 90
Club foot, §§ 25[b], 32
Cognitive disorder, § 27[b]
Collateral estoppel, § 3
Colonostomy, § 63[f]
Color perception, decrease in, § 52
Commissioner, requests for remand by, §§ 89- 91
Communication difficulties, §§ 26[b], 27[a], 57, 63[h]
Concentration and attention, §§ 10[a], 25[b], 26[b], 27, 28[a], 62[a], 63[i]
Conclusory statements, §§ 23[b], 26[b], 29[b], 32
Conflicting medical diagnoses, § 56[a]
Congestive cardiomyopathy, §§ 11[a], 28[a], 56[d]
Congestive heart failure, § 11
Construction worker, § 24[b]
Conviction for drunk driving, § 81
Convulsive disorders, seizures, and epilepsy, §§ 8[b], 9, 23[a], 26[b], 60, 63[g], 89, 90
Coronary angiography, § 56[e]
Coronary artery, narrowing of, § 56[e]
Coronary artery disease, §§ 11[b], 28[a], 56[e], 60
Coronary bypass, §§ 11[b], 28[a]
Coronary heart disease, §§ 28[b], 41[a], 62[a], 63[v]
Coronary insufficiency, § 41[a]
Coronary vessel blockage, §§ 28[b], 63[v]
Coughing and vomiting blood, § 61[a]
Counsel, lack of, and pro se representation, §§ 7[a], 10[b], 24[a], 62, 63[a], 63[f], 63[g]
Crane, fall from, §§ 7[b], 29[b]
Crawl, ability to, § 23[b]
Crepitus, § 12[a]
Crohn's disease, § 56[h]
CT scan, §§ 6[a], 23, 56[a], 63[a]
Daily experiences, evidence of, § 75
Degenerative arthritis of spine, §§ 12[a], 29[a], 63[s]
Degenerative changes, §§ 23[a], 28[b], 57
Degenerative cognitive functioning, § 25[b]
Degenerative disc disease, §§ 6[a], 23[a], 56[a]
Degenerative disease, generally, §§ 6[a], 23[a], 56[a], 60, 63[s], 68
Degenerative heart condition, § 56[e]
Degenerative joint disease, § 89
Delay, uncertainty, and expense involved in remand, § 90
Delirium tremens, § 8[a]
De minimis procedural default, §§ 59, 63[j]
Dental problems, § 26[b]
Depression, §§ 8[a], 25- 27, 39[b], 56[c], 57, 60, 62[a], 63[f], 63[g], 63[i], 67[b]
Destruction of administrative record, § 77
Deterioration of condition, §§ 24[b], 25, 26[b], 28[a], 29[b], 39[b], 47, 52, 55[a], 63[f], 63[n]
Deterioration of mental abilities due to alcohol abuse, §§ 17, 39[a], 63[n]
Determination of disability by another administrative law judge, §§ 68, 83
Determination of disability by another agency, §§ 64, 67, 76
Diabetes, §§ 15, 46, 55[a], 60, 63[f], 63[i], 63[j], 90
Diagnosis, letter indicating, § 8[b]
Diagnosis occurring after administrative hearing, § 56[h]
Diagnosis of chronic fatigue syndrome, lack of clinically accepted methodology for, § 63[m]
Disc, herniated or ruptured, §§ 6[a], 23[a], 56[a], 57, 62, 63[a], 67[b]
Disc disease, degenerative, §§ 6[a], 23[a], 56[a]
Discharge summary from physician, § 7[b]
Discogenic disease, § 24[b]
Discovery of shrapnel in hip, § 56[b]
Discs, bulging, § 24[b]
Disruptive classroom behavior, §§ 8[b], 9[b], 60
Diverticulosis and diverticulitis, §§ 15, 26[a], 46, 63[g]
Divorce first wife, investigation of court records to determine whether deceased wage earner had, § 89
Dizziness and vertigo, §§ 15, 21, 28, 29[b], 31[a], 46, 83
Doctor's notes, § 60
Double vision, §§ 63[h], 83
Drive, ability to, §§ 23[a], 35
Driving, drunk, § 81
Drowning of son, depression following, § 67[b]
Drug abuse, § 25[b]
Drunk driving conviction, § 81
Duodenitis, § 28[b]
Dyshydrotic eczema, § 60
Dysthymic disorder, §§ 25[b], 26[a], 63[g], 67[b], 89
Echocardiographic report, §§ 11[a], 28[a]
Education of applicant, § 63[w]
Electromyography (EMG), §§ 23[b], 24[b], 63[a]
Electronics assembler, § 43
Embarrassment as good cause for failure to present evidence earlier, § 60
Emotional levels, high, §§ 25[b], 27[b]
Emotional problems, §§ 10[a], 63[i]
Emphysema, §§ 22, 28[b], 63[v]
Employment, evidence of, § 88
Enzymes, degradation of, §§ 7[b], 24[b]
Epilepsy, seizures, and convulsive disorders, §§ 8[b], 9, 23[a], 26[b], 60, 63[g], 89, 90
Epstein-Barre disease, §§ 49, 63[r]
Equal Access to Justice Act, §§ 10[b], 23[a], 25[a], 28[a], 63[i]
Exercise shop, work in, § 15
Exercise stress test, §§ 11[a], 28[a]
Existing evidence, failure to present, § 60
Existing evidence, unavailability of, § 61
Expense involved in remand, § 90
Eyes and eyesight, §§ 8, 20, 26[b], 31[a], 53, 60, 62[a], 63[e], 63[f], 63[h], 63[i], 63[s], 83
Failed surgical back syndrome, §§ 6[a], 23[a], 56[a]
Falls and falling, §§ 7[b], 29[b]
Family court program, participation in, § 71
Family history, § 79
Fatigue, §§ 16, 25[a], 28[b], 33, 36, 48, 56[k], 62[a], 63[m], 63[v], 68
Fibroid tumor in uterus, § 83
Fibromyalgia, §§ 18, 34, 63[q], 70, 80
Financial motives as affecting credibility, § 70
Financial resources, § 57
Find school records, inability to, § 78
Fine arts, bachelor's degree in, §§ 62[b], 63[f]
Firearm, discharge while intoxicated, §§ 39[b], 61[b]
Firearms, shooting, §§ 6[a], 23[a], 63[a]
Fire-setting behavior, §§ 8[a], 25[a]
Floor girl in clothing factory, § 90
Foot injuries or conditions, §§ 7[b], 8[a], 12[b], 23[a], 29[b], 56[a]
Foot pain, §§ 23[a], 56[a]
Forehead, laceration to from attack at work, § 54
Forgetfulness and memory problems, §§ 10[a], 25, 26[b], 27, 28[a], 55[b], 62[a], 63[h]- 63[j], 67[a]
Forms, filling out by physician, §§ 14, 30
Fractures, §§ 6[a], 7[b], 12[a], 23[a], 29[a]
Furniture, back injury suffered while trying to move, §§ 23[b], 63[b]
Gait, §§ 24[b], 26[b], 90
Gallstones, § 83
Gastritis, § 63[f]
Gender dysphoria, §§ 8[a], 25[b], 62[a], 63[f]
Glaucoma, §§ 8[a], 62[a], 63[e]
Good cause for failing to present evidence earlier, §§ 56- 63, 76- 88
Good or bad faith, §§ 57, 59, 63[i]
Gout, §§ 24[b], 39[b]
Government expense, examination at, § 57
Grip, weak, §§ 7[b], 61[b]
Groundskeeper, § 91
Hair stylist, § 24[b]
Hallucinations, §§ 8[a], 56[c]
Hand injuries or conditions, §§ 7[a], 12[a], 24, 28[b], 60, 63[a], 63[v], 83
Hand pain, §§ 24[b], 28[b], 63[v]
Hands, dyshydrotic eczema on, § 60
Hands and arms, overuse syndrome, § 24[b]
Hardship upon applicant resulting from remand, § 90
Headaches, §§ 13[a], 25[b], 27[b], 29[b], 31[a], 37, 49, 50, 61[a], 63[a], 63[r], 83, 89
Head injury, § 63[h]
Hearing and hearing problems, §§ 26[b], 45, 51
Heart diseases or conditions, §§ 8[b], 11, 12[a], 23[b], 25[a], 26, 28, 29, 41[a], 55[a], 56[e], 63[k], 63[l], 56[e], 57, 58, 60, 62[a], 63[f], 63[h], 63[s], 63[v], 67[b], 68
Heart murmur, § 26[b]
Heat treatments to heal bedsore, § 90
Heavy lifting, §§ 7[b], 23[a], 24[b], 27[a], 31[a], 63[u]
Heel spurs, § 89
Hemiparesis, §§ 6[a], 23[a], 56[a], 63[h]
Hemiplegia, §§ 11[a], 28[a], 56[d]
Hepatitis, § 47
Hepatitis B, §§ 36, 62[a]
Herniated or ruptured disc, §§ 6[a], 23[a], 28[a], 56[a], 57, 62[a], 63[a], 67[b]
Hiatal hernia, §§ 26[a], 63[g]
High blood pressure, §§ 8[b], 11[a], 13, 24[b], 25[b], 26[a], 28[a], 29[b], 31, 49, 50, 56[e], 56[d], 56[g], 60, 61[a], 62, 63[f], 63[g], 63[i], 63[j], 63[r], 83, 90
Hip, need for surgery, §§ 12[a], 29[a]
Hip injuries or conditions, §§ 7, 12[a], 24[a], 26[b], 24[b], 29, 63[c], 63[i]
Hip joints, inflammation of, § 26[b]
Hip pain, §§ 7[a], 10[a], 24[a], 27[a], 29[b], 63[c], 63[i]
Hip replacement, §§ 7[b], 10[a], 24[b], 27[a], 63[i]
History, family, § 79
Holter monitoring report, §§ 11[a], 28[a]
Homan's sign, positive, §§ 41[a], 56[j]
Home health care visits, § 90
Hospitalizations, §§ 7[a], 11[a], 17, 23[a], 24[a], 25, 28, 31[a], 39[a], 41[a], 56, 60, 63[f], 63[j], 63[l], 67[a]
Housekeeper for hotel or nursing home, § 54
Hydronephrosis, § 45
Hypertension and high blood pressure, §§ 8[b], 11[a], 13, 24[b], 25[b], 26[a], 28[a], 29[b], 31, 49, 50, 56[e], 56[d], 56[g], 60, 61[a], 62, 63[f], 63[g], 63[i], 63[j], 63[r], 83, 90
Hyperthyroidism, § 63[w]
Hypokalemia, § 31[a]
Hypothyroidism, §§ 10[a], 25[a], 27[a], 62[a], 63[i]
Illiteracy or marginal literacy, §§ 10[a], 27[a], 62[b], 63[i], 63[j], 91
Income earned and expected, § 90
Ingrown toenail, minor surgery, § 44
Insomnia and sleep difficulties, §§ 25[b], 27[b], 28[b], 63[v], 67[a], 83
Insurance company, letter by orthopedic surgeon to, §§ 23[b], 63[b]
Insurer, letter stating that applicant pursuing Social Security benefits on voluntary basis, §§ 70, 80
Insurer, settlement by, § 69
Intelligence, §§ 8[a], 10, 25, 26[a], 27, 57, 60, 62[b], 63[g], 63[i]
Intent to leave wife, §§ 65, 87
Introduction to annotation, § 1
Invited, request for remand, § 91
IQ, §§ 10, 25[b], 26[a], 60, 62[b], 63[g], 63[j]
Iron deficiency anemia, § 31[a]
Ischemic heart disease, § 28[b]
Janitor, § 63[g]
Jerking of abdomen, §§ 15, 46
Kidney pain, § 83
Kidney stones, § 45
Knee injury or condition, §§ 6[a], 7[b], 9[a], 12[a], 23[a], 24[b], 25[a], 26[a], 28[b], 29, 44, 56[c], 57, 60, 63[d], 63[g], 63[j], 63[v], 83
Knee pain, §§ 7[b], 28[b], 60, 63[j], 63[v]
Knee replacement, § 12[a]
Knees, need for surgery, §§ 12[a], 29[a]
Laborer, §§ 17, 39[a]
Laceration to liver and forehead during attack at work, § 54
Lack of money, § 57
Laminectomy, §§ 6[a], 23[a], 56[a]
Landlord, letter from, § 51
Lay advocates, representation by, §§ 61[a], 63[e]
Learning difficulties, §§ 27[b], 71
Leave wife, intent to, §§ 65, 87
Legal services, representation by legal assistant from, § 63[w]
Leg injuries or conditions, §§ 6, 7, 12[a], 14, 23, 24, 30, 56[a], 57, 60, 63[c], 63[f], 63[j], 63[v], 90
Leg pain, §§ 6, 7[a], 23, 24[a], 56[a], 57, 60, 63[c], 63[f], 63[j], 63[v]
Leg vein problems, §§ 41, 56[j]
Letter explaining terms of workers compensation award, § 84
Letter stating that applicant was not to work, § 6[b]
Liberal construction of Social Security Act, § 3
Lifting, heavy, §§ 7[b], 23[a], 24[b], 27[a], 31[a], 63[u]
Lifting or carrying, §§ 9[a], 11[a], 23[b], 25[b], 28[a], 31[a], 54, 56[e], 61[a]
Light work, §§ 11[b], 12[a], 23[b], 25[b], 28[a], 29[a], 54, 55[b], 56[e], 63[b], 68, 90
Limp, §§ 24[b], 90
Liver, cirrhosis of, §§ 17, 39
Liver, laceration to during attack at work, § 54
Locate school records, inability to, § 78
Loss of hearing transcript, § 77
Loss of motion and range of motion, §§ 12[a], 23[b], 24[b], 29, 34, 90
Low back pain, §§ 6, 23, 24[b], 56[a], 62[a], 63[a], 63[b], 63[i]
Lower back, neuritis, §§ 30, 57
Low mental functioning, generally, §§ 10, 27, 62[a], 63[i], 63[j]
Lumbar body fusion surgery, §§ 6[a], 13[b]
Lumbar laminectomy, §§ 6[a], 56[a]
Lumbar myelogram, §§ 6[a], 23[a], 56[a]
Lumbar radiculopathy, § 25[b]
Lumbar region, progressive deterioration in, § 23[a]
Lumbosacral spine, arthritis of, §§ 12[a], 29
Lumbosacral spine, limitation of motion, § 90
Lung, sarcoidosis of, §§ 38, 63[p]
Lungs, asbestosis, §§ 28[b], 63[v]
Lungs, chronic obstructive pulmonary disease, §§ 28[b], 63[v]
Lungs and respiratory problems, generally, §§ 11[a], 28[b], 62[b], 63[f], 63[j], 63[v]
Magazine articles describing fibromyalgia, §§ 18, 34
Maintenance and janitorial work, §§ 17, 39[a], 63[g]
Malignant hyperthermia during surgery, §§ 55[a], 63[j]
Malingering, § 23[a]
Malnutrition, chronic, § 39[b]
Manipulate process, attempt to, §§ 57, 59
Marriage, prior, validity of, § 66
Materiality of evidence, §§ 3- 5, 23- 55, 67- 75
Mathematical computations, ability to perform, §§ 10[a], 27[a], 63[i]
Meat packer, §§ 6[a], 23[a]
Mechanic, foreign car, §§ 10[a], 27[a], 63[i]
Medial meniscus tear of knee, §§ 7[b], 63[d]
Medicaid benefits, letter prepared in relation to, § 61[a]
Medical evidence, requests for remand by applicants for benefits, §§ 6- 63
Medical expert, opinion regarding relevancy of new evidence, § 55[a]
Medical-Vocational Guideline (Grid), error in applying, § 90
Medicare, § 90
Medicine, failure to take, § 41[b]
Memo regarding claimant having seen psychiatrist, § 61[a]
Memory problems, §§ 10[a], 25, 26[b], 27, 28[a], 55[b], 62[a], 63[h]- 63[j], 67[a]
Mental abilities, deterioration due to alcohol abuse, §§ 17, 39[a]
Mental ability and intelligence, §§ 8[a], 10, 25, 26[a], 27, 57, 60, 62[b], 63[g], 63[i]
Mental health and psychiatric illnesses or problems, generally, §§ 8, 14, 25, 56[c], 60, 61[a], 62, 63[e], 63[f], 63[w], 68, 69, 90
Mental health evaluation, §§ 8[a], 25[a], 57, 63[e]
Mental impairment, generally, §§ 62[b], 63[f], 63[j], 89
Mental retardation and low intelligence, §§ 8[a], 10, 25, 26[a], 27, 57, 63[g]
Migraine headaches, §§ 13[a], 31[a], 37, 61[a], 89
Minor surgery, § 44
Misapplication of law, § 90
Misdiagnosis or incomplete diagnosis, § 42
Mitral valve prolapse with arrhythmia, §§ 12[a], 29[a], 63[s]
Mixed organic brain, § 25[b]
Money, lack of, § 57
Morphological changes indicative of cell death, §§ 7[b], 24[b]
Motorcycle accidents, § 24[b]
Motor vehicle, conviction for drunk driving, § 81
Motor vehicle, qualification for handicapped placard for, § 51
Motor vehicle accidents, §§ 24[b], 60, 63[i], 63[w]
MRI, §§ 6[b], 21, 23[a], 57, 63[a]
Muscle spasms, §§ 23[b], 49, 50, 63[r]
Musculoskeletal condition, §§ 29[a], 68
Myasthenia gravis, §§ 48, 56[k], 63[f]
Myelogram, §§ 6[a], 23[a], 63[a], 90
Myocardial infarction, §§ 28[a], 56[e]
Nausea, § 29[b]
Neck conditions or problems, §§ 14, 15, 23[b], 26[b], 30, 57, 60, 62[a], 63[a], 63[f], 67[b]
Neck pain, §§ 23[b], 63[a], 63[f]
Nerve conduction study, § 23[b]
Nervousness, §§ 25[b], 27[b], 83
Neuritis, §§ 14, 30, 57
Neurological examination, §§ 57, 63[h], 63[j]
Neurological injury or deficit, §§ 9, 23[b], 26, 31[a], 56[d], 63[g], 63[h], 90
Neurologists' reports, §§ 16, 23[b], 33, 55[a], 62[a], 63[a], 63[g], 63[m]
Neurology clinic, § 21
Neurolysis, §§ 6[a], 23[a], 56[a]
Neuropathy, § 63[w]
Neuropsychological assessment, §§ 8[a], 25[a], 27[a], 62[a], 63[e], 63[i], 63[j]
Neurosis, § 8[b]
Neurotic or phobic reaction to injury, § 8[b]
Newness of evidence, §§ 6- 22, 64- 66
Nitroglycerin treatment, § 28[a]
Non-English-speaking applicant, §§ 62[a], 63[a], 91
Non-medical evidence, §§ 64- 88
Numbness, §§ 6[a], 23[a], 54, 56[a], 63[a]
Nursing home or hotel housekeeper, § 54
Nursing services, reimbursement under Medicare for, § 90
Obesity, §§ 6[a], 8[a], 13[a], 23[a], 25[a], 31[a], 44, 60, 61[a], 63[i]
Occlusion of left vertebral artery, § 28[b]
Office employment, §§ 23[b], 43
One-handed applicant, § 91
Onset date of claim, evidence concerning, §§ 22, 55[a], 58
Open heart surgery, § 28[b]
Oppositional tendencies, §§ 8[a], 25[a]
Organic brain disorder, §§ 26[b], 63[h]
Organic brain syndrome, §§ 24[b], 26[a], 63[g]
Organic mental disorder, §§ 26[a], 63[g]
Organic personality syndrome, § 25[a]
Orthopedic injuries or conditions, §§ 6, 7, 23, 24, 56[a], 56[b], 63[a]- 63[d], 90
Orthopedic surgeons' reports, § 23[b]
Orthopedists' reports, §§ 62[a], 63[g]
Osteoarthritis, §§ 9[a], 23, 24[b], 29[b]
Other administrative law judge, disability determination by, §§ 68, 83
Other agency, determination of disability by, §§ 64, 67, 76
Overuse syndrome, hands and arms, § 24[b]
Pain, §§ 6- 8[a], 11, 12, 14, 23- 25, 28, 30, 31[a], 34, 39[b], 41[b], 42, 49- 51, 54, 55[b], 56[a], 56[e], 57, 60, 61[b], 62[a], 63[a]- 63[c], 63[e], 63[f], 63[i], 63[j], 63[r], 63[v], 67[b], 70, 80, 83, 90
Pain, general, unexplained, § 51
Painkillers, addiction to, § 52
Pancreatitis, § 47
Panic disorder, § 63[f]
Paralysis of arm, §§ 7[a], 24[a]
Paranoid schizophrenia, §§ 25[b], 27[b], 88
Paresthesia of leg, § 90
Paternity, affidavit regarding, § 72
Pathological dependence, §§ 8[a], 25[a], 63[a], 63[i]
Pelvis, pain in, § 63[f]
Peptic ulcer, §§ 12[a], 29[a], 63[s]
Personality disorders, §§ 8[a], 25[a], 63[a], 63[i], 88, 89
Phlebitis, §§ 41[a], 56[j]
Phobias, § 63[f]
Physical capacities evaluation, § 63[a]
Physical therapists and therapy, §§ 23[b], 90
Physicians' Desk Reference, evidence of side effects of medicine, § 60
Pinched nerve, § 63[a]
Pituitary gland, removal of, § 26[b]
Pleuritic pains, § 11[b]
Plumber, §§ 62[b], 63[f]
Pneumonitis, §§ 28[b], 63[v]
Polyneuritis, §§ 14, 25[a], 30, 62[a], 63[e]
Post-decision oral hearing, failure to request, § 58
Post-menopausal symptoms, §§ 49, 50, 63[r]
Post-polio syndrome, § 32
Post-traumatic stress disorder, §§ 6[b], 24[b], 25[b], 63[b], 63[f], 71
Power tools, use of, §§ 7[b], 63[u]
Preliminary matters, §§ 1, 2
Prinzmetal angina, §§ 11[a], 28[a], 63[k]
Prior marriage, validity of, § 66
Procedural default, § 59
Pro se claimants, §§ 7[a], 10[b], 24[a], 62, 63[a], 63[f], 63[g]
Prosthetic device, loose, §§ 7[a], 24[a], 63[c]
Proteinuria, § 31[a]
Psychiatric illnesses or problems, generally, §§ 8, 14, 25, 56[c], 60, 61[a], 62, 63[e], 63[f], 63[w], 68, 69, 90
Psychiatrists or psychologists, reports from, §§ 8, 9[a], 10[a], 16, 17, 25, 26, 27, 33, 39[a], 51, 56[c], 57, 59, 60, 62, 63[f], 63[i], 63[j], 63[m], 90
Psychological testing or examination, §§ 17, 27[a]
Pulmonary function test, § 11[a]
Quad atrophy of knees, §§ 7[b], 63[d]
Radiographic report, §§ 23[a], 61[a]
Radiology and x-rays, §§ 6[b], 12[a], 23, 29, 61[a], 63[s]
Range of motion, §§ 12[a], 23[b], 24[b], 29, 34, 90
Rash, § 60
Reach, ability to, §§ 23[b], 54
Reactive depression, § 60
Reappraisal of evidence by expert, § 6[b]
Reasonable likelihood standard, generally, § 5
Reasonable possibility standard, generally, § 3
Reasonable probability standard, generally, § 4
Recalcitrance of physician in providing records, § 61[a]
Rectal cancer, colonostomy as result of, § 63[f]
Reinterpretation of information previously submitted, § 6[b]
Reiter's syndrome, § 42
Related annotations, § 1[b]
Release form, necessity of execution of, § 61[b]
Remedial nature of Social Security Act, § 3
Renal calculi or kidney stones, § 45
Report of evaluation prepared after administrative hearing, § 63
Res judicata, §§ 3, 77
Respiratory problems and lungs, generally, §§ 11[a], 28[b], 62[b], 63[f], 63[j], 63[v]
Rest periods, need for, §§ 23[a], 31[a]
Rheumatoid arthritis, §§ 12, 13[a], 29, 56[f], 63[t]
Roofer, § 63[b]
Ruptured or herniated disc, §§ 6[a], 23[a], 56[a], 57, 62[a], 63[a], 67[b]
Sarcoidosis of lung, §§ 38, 63[p]
Scar tissue, §§ 23[a], 56[a]
Schizoaffective disorder- bipolar type, §§ 8[b], 25[b]
Schizo-affective schizophrenia, § 60
Schizophrenia, generally, § 25[a]
Schizophrenia, paranoid, §§ 25[b], 27[b], 88
School records, inability to find, § 78
Scope of annotation, § 1[a]
Seizures, epilepsy, and convulsive disorders, §§ 8[b], 9, 23[a], 26[b], 60, 63[g], 89, 90
Settlement by private disability insurer, § 69
Sewing machine operator, § 89
Sex reassignment surgery, candidate for, § 63[f]
Shooting, §§ 6[a], 23[a], 63[a]
Shortness of breath, §§ 7[b], 28, 31[a], 42, 61[b], 63[v], 83
Shoulder problems, §§ 24[b], 39[b]
Shrapnel wounds, §§ 7[a], 56[b]
Side effects of medicine, §§ 19, 35, 60
Sinusitis, chronic, §§ 12[a], 29[a], 63[s]
Sit, ability to, §§ 9[a], 12[a], 23, 29[a], 63[s]
Skin condition on hands, dyshydrotic eczema, § 60
Skin rash, § 26[b]
Sleep difficulties, §§ 25[b], 27[b], 28[b], 63[v], 67[a], 83
Sleepiness, § 28[a]
Social worker, letter from, § 63[w]
Somatic complaints, § 63[f]
Somatization, §§ 25[a], 56[c]
Somatoform pain disorder, §§ 8[a], 25[a]
Spanish-speaking applicant, §§ 62[a], 63[a]
Spasms, §§ 63[j], 90
Spastic colon syndrome, § 13[a]
Speech problems, §§ 26[b], 63[h]
Spinal injuries or conditions, §§ 6[a], 12[a], 13[b], 23, 25[b], 29, 52, 56[a], 57, 62[a], 63[a], 63[s], 63[w], 67[b], 90
Spinal meningitis, § 15
Spinal stenosis, §§ 6[a], 23, 56[a]
Spouse, intent to leave, §§ 65, 87
Spouse, treatment as, §§ 74, 86
Squat, ability to, §§ 23[b], 24[b], 54
Stab wound, §§ 7[a], 24[a]
Stand, ability to, §§ 9[a], 11[a], 12[a], 23[b], 24[b], 25[b], 28[a], 29[a], 41[b], 56[e], 63[s]
State department of rehabilitation, report from, § 24[b]
State disability determination, § 67[b]
Stenosis, §§ 6[a], 23, 28[b], 56[a], 57
Stoop, ability to, § 54
Stroke-like occurrence, § 37
Subpoena to obtain medical records, § 61[a]
Substance abuse, §§ 25[b], 60, 79
Substance abuse facility, treatment in, § 39[b]
Suicide, desire to commit, § 25[a]
Summary, § 2
Surgery, §§ 6[a], 6[b], 7[b], 10[a], 12[a], 23, 24[b], 27[a], 28[b], 29[a], 44, 55[a], 56[a], 56[e], 56[f], 56[h], 56[i], 63[a], 63[i], 63[j]
Surgery, malignant hyperthermia during, §§ 55[a], 63[j]
Surgery, minor, § 44
Surgery, need for, §§ 12[a], 29[a], 56[f], 63[a]
Surgery performed since decision, §§ 6[b], 23, 24, 56[a]
Surprise, § 58
Swelling and inflammation, §§ 12[b], 34, 83
Tape recordings of oral hearing lost or inaudible, § 77
Teachers, evaluations by, § 60
Teacher's aide, § 63[f]
Technology, improvement in, § 63[a]
Tendon reflexes, diminished, § 24[b]
Terms of workers compensation award, letter explaining, § 84
Tests for determining materiality of evidence, §§ 3- 5
Textbook excerpt, § 63[o]
Thrombosis, § 41[b]
Thyroid problems, § 26[b]
Time of filing, § 59
Tingling, § 54
Transferability of claimant's work skills, § 90
Transportation, ability to handle, §§ 9[a], 23[a]
Transsexual, §§ 8[a], 25[b], 62[a], 63[f]
Travel alone, inability to, § 9[a]
Treatment as wife, evidence of, §§ 74, 86
Truck driver, § 35
Tumor, surgical removal of, § 56[h]
Ulcer, §§ 6[a], 23[a], 62[a], 63[a], 63[s]
Undated letter or report, §§ 11[b], 23[b]
Unexplained general pain, § 51
Unspecified medical evidence, §§ 22, 55, 63[v], 63[w]
Urethra, damage to, § 45
Urinary tract infection, § 42
Uterine bleeding, §§ 13[a], 31[a], 43
Uterus, fibroid tumor in, § 83
Validity of prior marriage, § 66
Vascular problems, legs, § 41
Venous reflux, § 41[b]
Vertebrogenic disorders, generally, § 90
Vertigo and dizziness, §§ 15, 21, 28, 29[b], 31[a], 46, 83
Vestibular disorder, § 21
Veterans Administration, obtaining records from, § 61[a]
Veterans Administration determination regarding disability, §§ 64, 67, 76
Vision and eyes, §§ 8, 20, 26[b], 31[a], 53, 60, 62[a], 63[e], 63[f], 63[h], 63[i], 63[s], 83
Vocational assessment report from rehabilitation program, §§ 6[a], 23[a], 63[a]
Vocational expert, letter or report from, §§ 10[a], 11[a], 23[a], 27[a], 28[a], 56[e], 63[i]
Vocational expert, remand to obtain testimony of, §§ 89, 90
Vocational expert having testified, §§ 27[b], 43
Voicebox, removal of, §§ 40, 56[i]
Voluntary basis, evidence that disability benefits sought on, §§ 70, 80
Vomiting blood, § 61[a]
W-2 Form, § 82
Waiting list at clinic causing delay, § 57
Walk, ability to, §§ 11[a], 12, 23, 24[b], 26[b], 27[a], 28[a], 29, 31[a], 41[b], 56[e], 61[a], 63[h], 63[s], 90
Whipple's Disease, § 42
Wife, intent to leave, §§ 65, 87
Wife, treatment as, §§ 74, 86
Workers compensation award, letter explaining terms of, § 84
Workers compensation hearing, briefs from, § 85
Wrist injuries or conditions, §§ 7[b], 12[b], 23[b], 24[b], 29, 56[f], 60, 63[t], 63[u], 67[b]
Xanax, § 25[a]
X-rays and radiology, §§ 6[b], 12[a], 23, 29, 61[a], 63[s]








STATUTORY TEXT

The sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) provides in pertinent part that:
§ 405. Evidence, procedure, and certification for payments

[(a) through (f) omitted]

(g) Judicial review

[text omitted]
(a) … . The court may, on motion of the Commissioner of Social Security made for good cause shown before the Commissioner files the Commissioner's answer, remand the case to the Commissioner of Social Security for further action by the Commissioner of Social Security, and it 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; … .

Table of Cases, Laws, and Rules

United States

28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b). See 3
42 U.S.C.A. § 205(g). See 6[b], 7[b], 8[a], 24[b], 25[b], 29[b], 45, 46, 52, 56[c], 57, 58, 60, 63[a], 63[f], 63[g], 63[k], 63[n], 66
42 U.S.C.A. §§ 301 et seq.. See 4, 62.5
42 U.S.C.A. §§ 405(g), 423(d)(5). See 36
42 U.S.C.A. § 405(g). See 1[a], 2, 3, 4, 5, 5.3, 5.5, 6[a], 6[b], 7[a], 7[b], 8[a], 8[b], 9[a], 9[b], 10[a], 10[b], 11[a], 11[b], 12[a], 12[b], 13[a], 13[b], 14, 15, 16, 17, 18, 19, 20, 21, 21.5, 22, 23[a], 23[b], 24[a], 24[b], 25[a], 25[b], 26[a], 26[b], 27[a], 27[b], 28[a], 28[b], 29[a], 29[b], 30, 31[a], 31[b], 32, 33, 34, 35, 36, 37, 38, 39[a], 39[b], 40, 41[a], 41[b], 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55[a], 55[b], 56[a], 56[b], 56[c], 56[d], 56[e], 56[f], 56[g], 56[h], 56[i], 56[j], 56[k], 57, 58, 59, 60, 61[a], 61[b], 62[a], 62[b], 63[a], 63[b], 63[c], 63[d], 63[e], 63[f], 63[g], 63[h], 63[i], 63[j], 63[k], 63[l], 63[m], 63[o], 63[p], 63[q], 63[r], 63[s], 63[t], 63[u], 63[v], 63[w], 64, 65, 65.5, 66, 67[a], 67[b], 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 82.5, 83, 84, 85, 86, 87, 88, 89, 90, 91
42 U.S.C.A. § 416(i). See 89
42 U.S.C.A. § 1382c(a)(3)(A, B). See 63[i]

Supreme Court

Shalala v. Schaefer, 509 U.S. 292, 113 S. Ct. 2625, 125 L. Ed. 2d 239, 26 Fed. R. Serv. 3d 1438 (1993) — 10[b]
Sullivan v. Finkelstein, 496 U.S. 617, 110 S. Ct. 2658, 110 L. Ed. 2d 563 (1990) — 10[a], 11[a]

First Circuit

Beliveau ex rel. Beliveau v. Apfel, 154 F. Supp. 2d 89 (D. Mass. 2001) — 3
Bomes v. Schweiker, 544 F. Supp. 72 (D. Mass. 1982) — 6[a], 23[a], 56[a]
Caron v. Shalala, 1994 WL 484346 (D.N.H. 1994) — 60
Chabot v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶14687B, 1995 WL 523621 (D.N.H. 1995) — 43
Conner v. Barnhart, 443 F. Supp. 2d 131 (D. Mass. 2006) — 3
Conte v. McMahon, 472 F. Supp. 2d 39 (D. Mass. 2007) — 23[b]
Cruz v. Commissioner of Social Security, 303 F. Supp. 2d 55 (D.P.R. 2004) — 3
Defosse v. Bowen, 670 F. Supp. 1078 (D. Mass. 1987) — 3, 6[b], 23[b]
Delgado v. Secretary of Health and Human Services, 43 F.3d 1456 (1st Cir. 1994) — 3, 12[a], 29[a], 56[f]
Dewey v. Chater, 942 F. Supp. 711 (D. Mass. 1996) — 51
Dow v. Secretary of Health and Human Services, 1994 WL 258562 (D.N.H. 1994) — 63[b]
Evangelista v. Secretary of Health and Human Services, 826 F.2d 136 (1st Cir. 1987) — 3, 6[b], 23[b], 62[b], 63[b], 63[e]
Falu v. Secretary of Health and Human Services, 703 F.2d 24 (1st Cir. 1983) — 3
Field v. Chater, 920 F. Supp. 240 (D. Me. 1995) — 90
Guyton v. Apfel, 20 F. Supp. 2d 156 (D. Mass. 1998) — 6[b]
Kapp v. Secretary of Health and Human Services, 1985 WL 5754 (D. Mass. 1985) — 90
Karouz v. Sullivan, 1992 WL 220760 (D.R.I. 1992) — 15
LaRiviere v. Sullivan, Unempl. Ins. Rep. (CCH) ¶16366A, 1991 WL 327431 (D.R.I. 1991) — 23[b], 60, 62[a]
LeClerc v. Shalala, 1994 WL 461696 (D.N.H. 1994) — 36, 62[a]
Lemire v. Shalala, 1994 WL 253557 (D.N.H. 1994) — 6[b], 23[b], 63[b]
Liles v. Chater, Unempl. Ins. Rep. (CCH) ¶14691, 1995 WL 523625 (D.N.H. 1995) — 28[a]
MacKinnon v. Bowen, Unempl. Ins. Rep. (CCH) ¶14639A, 1989 WL 270105 (D. Mass. 1989) — 3, 8[a], 25[b], 62[a], 63[f]
McNeil v. Heckler, 577 F. Supp. 212 (D. Mass. 1983) — 6[a], 23[a], 63[a]
Mercier v. Secretary of Health and Human Services, 66 F.3d 306 (1st Cir. 1995) — 32
Perkins v. Barnhart, 266 F. Supp. 2d 198 (D. Mass. 2003) — 22
Perry v. Shalala, Unempl. Ins. Rep. (CCH) ¶17536A, 1993 WL 541707 (D.N.H. 1993) — 23[b], 63[f]
Rawls v. Apfel, 998 F. Supp. 70 (D. Mass. 1998) — 25[a], 56[c]
Santos Rios v. Secretary of Health and Human Services, 953 F.2d 633 (1st Cir. 1991) — 88
Sepulveda v. Callahan, 2 F. Supp. 2d 212 (D.P.R. 1998) — 25[b], 63[f]
Starkweather v. Shalala, Unempl. Ins. Rep. (CCH) ¶14533B, 1995 WL 85355 (D.N.H. 1995) — 11[a], 28[b], 56[e]
Zurek v. Shalala, 878 F. Supp. 314 (D.N.H. 1994) — 3, 6[a], 23[a], 57

Second Circuit

Abreu-Mercedes v. Chater, 928 F. Supp. 386 (S.D. N.Y. 1996) — 2, 3, 24[b]
Anderson v. Secretary of Health and Human Services, 1987 WL 30201 (E.D. N.Y. 1987) — 89
Aubeuf v. Schweiker, 649 F.2d 107 (2d Cir. 1981) — 90
Babula v. Secretary of Health and Human Services, 655 F. Supp. 1117 (W.D. N.Y. 1987) — 90
Balke v. Barnhart, 219 F. Supp. 2d 319 (E.D. N.Y. 2002) — 55[a]
Baran v. Bowen, 710 F. Supp. 53 (S.D. N.Y. 1989) — 12[a], 29[a], 63[s]
Barrera v. Secretary of Health and Human Services, 872 F. Supp. 24 (E.D. N.Y. 1995) — 14, 30, 57
Berestecki v. Secretary of Health and Human Services, 662 F. Supp. 1521 (S.D. N.Y. 1987) — 90
Borrero v. Callahan, 2 F. Supp. 2d 235 (D. Conn. 1998) — 3, 8[a], 25[a], 63[e]
Bradley v. Barnhart, 87 Fed. Appx. 190 (2d Cir. 2003) — 64
Breault v. Secretary of HHS, Medicare & Medicaid 37945, 1989 WL 97939 (N.D. N.Y. 1989) — 90
Brewerton v. Barnhart, 235 F.R.D. 574 (W.D. N.Y. 2006) — 8[a]
Cassera v. Secretary of Health and Human Services, 104 F.3d 355 (2d Cir. 1996) — 3
Catrain v. Barnhart, 325 F. Supp. 2d 183 (E.D. N.Y. 2004) — 25[b]
Colon v. Sullivan, 1989 WL 85183 (S.D. N.Y. 1989) — 89
Cosme v. Bowen, 1987 WL 16969 (S.D. N.Y. 1987) — 90
Counterman v. Chater, 923 F. Supp. 408 (W.D. N.Y. 1996) — 71
Crespo v. Barnhart, 293 F. Supp. 2d 321 (S.D. N.Y. 2003) — 7[a]
DeYoung v. Shalala, Medicare & Medicaid 43562, 1995 WL 579755 (D. Vt. 1995) — 90
Dombrowski v. Chater, 960 F. Supp. 558 (N.D. N.Y. 1997) — 39[b], 61[b]
Espinar v. Shalala, 1995 WL 679236 (S.D. N.Y. 1995) — 56[h]
Estevez v. Apfel, 59 Soc. Sec. Rep. Serv. 383, 1998 WL 872410 (S.D. N.Y. 1998) — 4, 8[b], 25[b]
Ferraro v. Secretary of U.S. Dept. of Health and Human Services, 770 F. Supp. 100 (E.D. N.Y. 1991) — 77
Firpo v. Shalala, 1995 WL 92264 (S.D. N.Y. 1995) — 3
Flanders v. Chater, Unempl. Ins. Rep. (CCH) ¶15040B, 1995 WL 608287 (S.D.N.Y. 1995) — 9[a], 23[a], 62[a], 63[g]
Fonseca v. Chater, 953 F. Supp. 467 (W.D. N.Y. 1997) — 13[b], 31[b], 60, 62[b]
Formica v. Shalala, 1994 WL 414299 (D. Conn. 1994) — 90
Fox v. Barnhart, 137 Fed. Appx. 395 (2d Cir. 2005) — 44
Fragale v. Chater, 916 F. Supp. 249 (W.D. N.Y. 1996) — 16, 33, 63[m]
Geracitano v. Callahan, 979 F. Supp. 952 (W.D. N.Y. 1997) — 12[a], 29[a], 61[a]
Glover v. Heckler, 588 F. Supp. 956 (S.D. N.Y. 1984) — 91
Gonzalez v. Chater, 1996 WL 442798 (S.D. N.Y. 1996) — 7[b], 24[b], 25[b], 63[d]
Jones v. Sullivan, 949 F.2d 57 (2d Cir. 1991) — 3
Keppler v. Heckler, 587 F. Supp. 1319 (S.D. N.Y. 1984) — 90
Law v. Barnhart, 439 F. Supp. 2d 296 (S.D. N.Y. 2006) — 6[b]
Lepak ex rel. Lepak v. Barnhart, 206 F. Supp. 2d 389 (W.D. N.Y. 2002) — 20
Lisa v. Secretary of Dept. of Health and Human Services of U.S., 940 F.2d 40 (2d Cir. 1991) — 3, 18, 34, 63[q]
Luckett v. Chater, 1997 WL 55948 (S.D. N.Y. 1997) — 20, 29[b], 60
Madrigal v. Callahan, 1997 WL 441903 (S.D. N.Y. 1997) — 3
Maestre v. Appel, 57 Soc. Sec. Rep. Serv. 493, 1998 WL 477950 (S.D. N.Y. 1998) — 3, 27[b]
McLaughlin v. Sullivan, 1 Nat'l Disability Law Rep. P 52, 1990 WL 121607 (S.D.N.Y. 1990) — 90
Miller v. Bowen, Unempl. Ins. Rep. (CCH) ¶17984.1, 1987 WL 17433 (S.D.N.Y. 1987) — 90
Morales v. Bowen, Unempl. Ins. Rep. (CCH) ¶14145A, 1988 WL 78375 (S.D.N.Y. 1988) — 60
Morgan on Behalf of Morgan v. Chater, 913 F. Supp. 184 (W.D. N.Y. 1996) — 8[a], 25[a], 63[e]
Moscatiello v. Apfel, 129 F. Supp. 2d 481 (E.D. N.Y. 2001) — 63[w]
Ostrovsky v. Massanari, 83 Fed. Appx. 354 (2d Cir. 2003) — 82.5
Pabon v. Barnhart, 273 F. Supp. 2d 506 (S.D. N.Y. 2003) — 63[i]
Pizzonia v. Chater, 1997 WL 436486 (S.D. N.Y. 1997) — 3
Rich v. Apfel, 57 Soc. Sec. Rep. Serv. 359, 1998 WL 458056 (S.D. N.Y. 1998) — 3, 13[b], 31[b], 63[w]
Rivera v. Secretary of Health, Ed. and Welfare, 513 F. Supp. 194 (S.D. N.Y. 1981) — 62[a], 63[a]
Roman v. Apfel, 24 F. Supp. 2d 263 (D. Conn. 1998) — 3, 60
Roman v. Barnhart, 477 F. Supp. 2d 587 (S.D. N.Y. 2007) — 27[b]
Rosado v. Shalala, 1994 WL 163718 (S.D. N.Y. 1994) — 25[a]
Rosado v. Sullivan, 805 F. Supp. 147 (S.D. N.Y. 1992) — 3, 25[b], 27[b]
Santiago v. Shalala, Unempl. Ins. Rep. (CCH) ¶14640B, 1995 WL 224622 (S.D.N.Y. 1995) — 8[a], 25[a], 57
Schaal v. Apfel, 134 F.3d 496, 149 A.L.R. Fed. 679 (2d Cir. 1998) — 63[f]
Schaffer v. Apfel, 992 F. Supp. 233 (W.D. N.Y. 1997) — 3, 16, 33, 63[m]
Sergenton v. Barnhart, 470 F. Supp. 2d 194 (E.D. N.Y. 2007) — 53
Sharpe v. Shalala, 1994 WL 29827 (W.D. N.Y. 1994) — 23[a]
Sharpe v. Sullivan, 802 F. Supp. 938 (W.D. N.Y. 1992) — 23[a], 56[a]
St. Cyr v. Chater, 1995 WL 870967 (W.D. N.Y. 1995) — 78
Stewart v. Chater, 1996 WL 534832 (E.D. N.Y. 1996) — 8[b], 9[b], 60
Teta v. Barnhart, 305 F. Supp. 2d 240 (E.D. N.Y. 2004) — 62.5
Thompson v. Secretary of Health and Human Services, 721 F. Supp. 34 (W.D. N.Y. 1989) — 90
Tirado v. Bowen, 705 F. Supp. 179 (S.D. N.Y. 1989) — 13[a], 23[a], 31[a], 43, 56[g]
Torres v. Heckler, 1984 WL 888 (S.D. N.Y. 1984) — 91
Torres v. Shalala, 938 F. Supp. 211 (S.D. N.Y. 1996) — 89
Villanueva v. Chater, 1996 WL 471195 (S.D. N.Y. 1996) — 7[a], 24[a]
Wagner v. Secretary of Health and Human Services, 906 F.2d 856 (2d Cir. 1990) — 37
Williams v. Bowen, Unempl. Ins. Rep. (CCH) ¶14470A, 1989 WL 1307 (S.D.N.Y. 1989) — 38, 63[p]

Third Circuit

Altomare v. Barnhart, 394 F. Supp. 2d 678 (E.D. Pa. 2005) — 4, 6[a]
Arnold v. Schweiker, 571 F. Supp. 526 (E.D. Pa. 1983) — 28[b]
Boccuto v. Heckler, 1985 WL 2615 (E.D. Pa. 1985) — 3
Bradley v. Bowen, 667 F. Supp. 161 (D.N.J. 1987) — 3, 44
Chisholm v. Secretary of Health and Human Services, 717 F. Supp. 366 (W.D. Pa. 1989) — 3
Cruz-Santos v. Callahan, 55 Soc. Sec. Rep. Serv. 789, 1998 WL 175936 (D.N.J. 1998) — 62[b]
Davis v. Bowen, 1987 WL 27913 (D.N.J. 1987) — 3
Delores Alper for Sarah Alper v. Donna E. Shalala, Secretary of Health and Human Services, 1995 WL 141929 (E.D. Pa. 1995) — 60
Felder v. Sullivan, 1992 WL 328848 (E.D. Pa. 1992) — 27[a], 57
Fouch v. Barnhart, 80 Fed. Appx. 181 (3d Cir. 2003) — 60
Hardee v. Commissioner of Social Sec., 188 Fed. Appx. 127 (3d Cir. 2006) — 31[b]
Hawkins for Reilly v. Heckler, 631 F. Supp. 711 (D.N.J. 1985) — 3, 9[a], 26[a], 62[a]
Hoffman v. Shalala, Unempl. Ins. Rep. (CCH) ¶14610B, 1995 WL 290442 (E.D. Pa. 1995) — 3
Jones v. Sullivan, 954 F.2d 125 (3d Cir. 1991) — 3, 47, 60
Martinez v. Bowen, 1988 WL 33911 (E.D. Pa. 1988) — 3
McCloskey v. Sullivan, 1992 WL 245930 (E.D. Pa. 1992) — 3
Milano v. Commissioner of Social Security, 152 Fed. Appx. 166 (3d Cir. 2005) — 22
Money v. Barnhart, 91 Fed. Appx. 210 (3d Cir. 2004) — 55[b]
Newhouse v. Heckler, 753 F.2d 283 (3d Cir. 1985) — 3, 41[a], 56[j]
Pysher v. Bowen, 1986 WL 11444 (E.D. Pa. 1986) — 3
Raglin v. Massanari, 39 Fed. Appx. 777 (3d Cir. 2002) — 55[b]
Sample v. Barnhart, 239 F. Supp. 2d 422 (D. Del. 2002) — 4, 55[a]
Santiago v. Bowen, 1987 WL 13905 (D.N.J. 1987) — 3, 55[b]
Scarlata v. Schweiker, 533 F. Supp. 469 (E.D. Pa. 1982) — 90
Scatorchia v. Commissioner of Social Sec., 137 Fed. Appx. 468 (3d Cir. 2005) — 62.5
Scott v. Bowen, 1989 WL 130563 (E.D. Pa. 1989) — 3
Smith v. Commissioner of Social Sec., 80 Fed. Appx. 268 (3d Cir. 2003) — 62.5
Stewart v. Secretary of Health, Educ. and Welfare of U.S., 714 F.2d 287 (3d Cir. 1983) — 23[a]
Szubak v. Secretary of Health and Human Services, 745 F.2d 831 (3d Cir. 1984) — 3, 5, 14, 25[a], 30, 39[b], 62[a], 63[e]
Torres v. Harris, 502 F. Supp. 518 (E.D. Pa. 1980) — 60
Torres v. Schweiker, 682 F.2d 109 (3d Cir. 1982) — 57
Utkus v. Sullivan, 1989 WL 86599 (E.D. Pa. 1989) — 3, 6[a], 60, 62[a], 63[a]
Ziehl v. Bowen, 1989 WL 5331 (E.D. Pa. 1989) — 3

Fourth Circuit

Barnard v. Secretary of Health and Human Services, 515 F. Supp. 690 (D. Md. 1981) — 12[a], 29[b]
Borders v. Heckler, 777 F.2d 954 (4th Cir. 1985) — 3
Bowen v. Secretary, Dept. of Health and Human Services, 922 F.2d 835 (4th Cir. 1991) — 3
Bowles v. Barnhart, 392 F. Supp. 2d 738 (W.D. Va. 2005) — 23[b]
Bradley v. Barnhart, 463 F. Supp. 2d 577 (S.D. W. Va. 2006) — 68
Brock v. Heckler, 612 F. Supp. 1348 (D.S.C. 1985) — 6[a], 23[b]
Brock v. Secretary of Health and Human Services, 807 F. Supp. 1248 (S.D. W. Va. 1992) — 3
Clagg v. Chater, 70 F.3d 111 (4th Cir. 1995) — 3
Dargan on Behalf of Dargan v. Chater, 54 F.3d 772 (4th Cir. 1995) — 26[b]
Fagg v. Chater, 106 F.3d 390 (4th Cir. 1997) — 3, 25[b], 32
Hacker v. Sullivan, 887 F.2d 1079 (4th Cir. 1989) — 3
Hammond v. Apfel, 5 Fed. Appx. 101 (4th Cir. 2001) — 22
Hartsell v. Bowen, 861 F.2d 264 (4th Cir. 1988) — 3
Hayes v. Astrue, 488 F. Supp. 2d 560 (W.D. Va. 2007) — 3, 64
Holstein v. Bowen, 841 F.2d 1122 (4th Cir. 1988) — 3
Ivey v. Barnhart, 393 F. Supp. 2d 387 (E.D. N.C. 2005) — 46
Kilpatrick v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶16147, 1983 WL 116153 (D. Md. 1983) — 26[b]
King v. Califano, 599 F.2d 597 (4th Cir. 1979) — 3
McAbee v. Halter, 21 Fed. Appx. 126 (4th Cir. 2001) — 36
McCauley v. Bowen, 823 F.2d 547 (4th Cir. 1987) — 3
Meadows v. Sullivan, 930 F.2d 913 (4th Cir. 1991) — 3
Miller v. Barnhart, 64 Fed. Appx. 858 (4th Cir. 2003) — 3, 55[b]
Payne v. U.S. Dept. of Health & Human Services, 869 F.2d 594 (4th Cir. 1989) — 3
Riffle v. Shalala, 47 F.3d 1165 (4th Cir. 1995) — 3
Rogers v. Barnhart, 204 F. Supp. 2d 885 (W.D. N.C. 2002) — 18
Schoofield v. Barnhart, 220 F. Supp. 2d 512 (D. Md. 2002) — 5.5
Skeens v. Sullivan, 737 F. Supp. 362 (W.D. Va. 1990) — 3
Smith v. Chater, 99 F.3d 635 (4th Cir. 1996) — 39[b]
Taylor v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶16473A, 1991 WL 335837 (D.S.C. 1991) — 3
Webb, o/b/o Webb v. Shalala, Unempl. Ins. Rep. (CCH) ¶14261B, 1994 WL 746586 (W.D. Va. 1994) — 3
White v. Bowen, 825 F.2d 409 (4th Cir. 1987) — 3
Wilkins v. Secretary, Dept. of Health and Human Services, 953 F.2d 93 (4th Cir. 1991) — 3
Wilson v. Sullivan, Unempl. Ins. Rep. (CCH) ¶15048A, 1989 WL 281935 (D.S.C. 1989) — 31[b]
Young v. Barnhart, 284 F. Supp. 2d 343 (W.D. N.C. 2003) — 9[b]

Fifth Circuit

Bradley v. Bowen, 809 F.2d 1054 (5th Cir. 1987) — 3, 23[b], 63[b]
Breaux v. Secretary of Health and Human Services, 1988 WL 92049 (E.D. La. 1988) — 24[b]
Brickey on Behalf of Perez v. Bowen, 722 F. Supp. 318 (S.D. Tex. 1989) — 65, 87
Brown v. Barnhart, 285 F. Supp. 2d 919 (S.D. Tex. 2003) — 4
Castillo v. Barnhart, 325 F.3d 550 (5th Cir. 2003) — 5.5
Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981) — 3, 4, 5, 24[b]
Cieutat v. Bowen, 824 F.2d 348 (5th Cir. 1987) — 3
Dorsey v. Heckler, 702 F.2d 597 (5th Cir. 1983) — 3, 8[a], 39[b], 56[c], 63[f]
Earp v. Commissioner of Social Security Admin., 168 F. Supp. 2d 628 (E.D. Tex. 2001) — 27[a]
Fritscher v. Shalala, 1994 WL 419901 (E.D. La. 1994) — 6[a], 23[b]
Granderson v. Department of Health and Human Services, 1989 WL 33659 (E.D. La. 1989) — 3
Haney v. Shalala, 1994 WL 247207 (E.D. La. 1994) — 25[b], 27[b]
Haney v. Shalala, 1994 WL 24232 (E.D. La. 1994) — 8[a]
Haywood v. Sullivan, 888 F.2d 1463 (5th Cir. 1989) — 25[b], 57
Hunter v. Bowen, 1987 WL 9384 (S.D. Tex. 1987) — 45
Johnson v. Heckler, 767 F.2d 180 (5th Cir. 1985) — 39[b]
Lafrance v. Sullivan, 1992 WL 125404 (E.D. La. 1992) — 19, 35, 60
Latham v. Shalala, 36 F.3d 482 (5th Cir. 1994) — 3, 64, 67[a], 76
Leggett v. Chater, 67 F.3d 558 (5th Cir. 1995) — 63[f]
Lovings v. Commissioner S.S.A., 914 F. Supp. 1432 (E.D. Tex. 1995) — 67[a], 76
Masters v. Secretary of Health and Human Services, 1993 WL 302902 (E.D. La. 1993) — 3
Morgan v. Sullivan, 1993 WL 35263 (E.D. La. 1993) — 29[b]
Nickerson v. Secretary of Health & Human Services, 894 F. Supp. 279 (E.D. Tex. 1995) — 7[b], 24[b]
Pate v. Heckler, 777 F.2d 1023 (5th Cir. 1985) — 3, 25[b], 61[a], 69
Pierre v. Bowen, 1988 WL 104818 (E.D. La. 1988) — 3
Pierre v. Sullivan, 884 F.2d 799 (5th Cir. 1989) — 63[j]
Ratcliff v. Shalala, 1994 WL 321040 (E.D. La. 1994) — 52
Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995) — 23[a], 56[a]
Spence v. Barnhart, 159 Fed. Appx. 593 (5th Cir. 2005) — 65.5
Taylor v. Callahan, 1997 WL 345786 (E.D. La. 1997) — 3
Wheat v. Barnhart, 318 F. Supp. 2d 358 (M.D. La. 2004) — 3, 55[b]
Williams v. Califano, 590 F.2d 1332 (5th Cir. 1979) — 3

Sixth Circuit

Alexander v. Secretary of Health & Human Services, 856 F.2d 192 (6th Cir. 1988) — 63[l]
Anderson v. Secretary of Health and Human Services, 43 F.3d 1471 (6th Cir. 1994) — 4
Birchfield v. Harris, 506 F. Supp. 251 (E.D. Tenn. 1980) — 63[w]
Briggs v. Schweiker, 703 F.2d 559 (6th Cir. 1982) — 6[a], 23[a]
Byars v. Secretary of Health and Human Services, 944 F.2d 904 (6th Cir. 1991) — 22, 55[a], 63[v]
Carroll v. Califano, 619 F.2d 1157 (6th Cir. 1980) — 4
Casey v. Secretary of Health and Human Services, 987 F.2d 1230 (6th Cir. 1993) — 55[b], 60
Cline v. Commissioner of Social Sec., 96 F.3d 146, 35 Fed. R. Serv. 3d 1273, 1996 FED App. 0294P, 152 A.L.R. Fed. 721 (6th Cir. 1996) — 63[f]
Cooper v. Commissioner of Social Security, 277 F. Supp. 2d 748 (E.D. Mich. 2003) — 11[b], 60
Cranfield v. Commissioner, Social Security, 79 Fed. Appx. 852 (6th Cir. 2003) — 55[b]
Cross v. Commissioner of Social Sec., 373 F. Supp. 2d 724 (N.D. Ohio 2005) — 4, 24[b]
Curry v. Secretary of Health & Human Services, 856 F.2d 193 (6th Cir. 1988) — 63[f]
Gambill v. Bowen, 823 F.2d 1009 (6th Cir. 1987) — 23[b]
Handy v. Commissioner of Social Sec., 77 F.3d 482 (6th Cir. 1995) — 4, 23[b]
Heath v. Commissioner of Social Sec., 110 F.3d 64 (6th Cir. 1997) — 4
Hensley v. Commissioner of Social Sec., 214 Fed. Appx. 547, 2007 FED App. 0056N (6th Cir. 2007) — 22, 65.5
Hoople v. Secretary of Health and Human Services, 979 F.2d 850 (6th Cir. 1992) — 4
Howard v. Commissioner of Social Sec., 276 F.3d 235, 2002 FED App. 0016P (6th Cir. 2002) — 3
Jeffries v. Commissioner of Social Security, 23 Fed. Appx. 351 (6th Cir. 2001) — 7[b]
Jewell v. Harris, 673 F.2d 1329 (6th Cir. 1981) — 15, 46
Johnson v. Heckler, 765 F.2d 145 (6th Cir. 1985) — 3, 4, 25[b]
Keen v. Secretary of Health and Human Services, 833 F.2d 1012 (6th Cir. 1987) — 82
Kienutske v. Barnhart, 375 F. Supp. 2d 556 (E.D. Mich. 2004) — 4
King v. Secretary of Health and Human Services, 896 F.2d 204 (6th Cir. 1990) — 68
Kirves v. Callahan, 113 F.3d 1235 (6th Cir. 1997) — 4
Leffel v. Commissioner of Social Sec., 30 Fed. Appx. 459 (6th Cir. 2002) — 6[b]
Lofton by Chessor v. Shalala, Unempl. Ins. Rep. (CCH) ¶17736A, 1993 WL 650841 (W.D. Tenn. 1993) — 4, 27[b]
Longworth v. Commissioner Social Security Admin., 402 F.3d 591, 2005 FED App. 0157P (6th Cir. 2005) — 10[b]
Maynard v. Chater, 108 F.3d 1377 (6th Cir. 1997) — 4
McCraney v. Commissioner of Social Sec., 68 Fed. Appx. 570 (6th Cir. 2003) — 25[b]
McKernan v. Secretary of Health and Human Services, 12 F.3d 213 (6th Cir. 1993) — 63[j]
Meece v. Barnhart, 192 Fed. Appx. 456, 2006 FED App. 0569N (6th Cir. 2006) — 23[a]
Moore v. Secretary of Health and Human Services, 54 F.3d 777 (6th Cir. 1995) — 4, 7[a], 56[b]
Newman v. Secretary of Health and Human Services, 683 F. Supp. 174 (W.D. Mich. 1988) — 23[b], 63[f]
Oliver v. Secretary of Health and Human Services, 804 F.2d 964 (6th Cir. 1986) — 55[b], 63[j]
Pasco v. Commissioner of Social Sec., 137 Fed. Appx. 828, 2005 FED App. 0540N (6th Cir. 2005) — 62.5
Peachock v. Secretary of Health & Human Services, 831 F.2d 296 (6th Cir. 1987) — 63[f]
Pha v. Chater, 909 F. Supp. 508 (N.D. Ohio 1995) — 4
Robertson v. Shalala, 91 F.3d 144 (6th Cir. 1996) — 3
Robinson v. Secretary of Health and Human Services, 932 F.2d 969 (6th Cir. 1991) — 63[f]
Roddy v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶15617A, 1990 WL 166565 (N.D. Ohio 1990) — 4
Ross v. Secretary of Health & Human Services, 836 F.2d 550 (6th Cir. 1987) — 79
Roth v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶16997, 1986 WL 83423 (N.D. Ohio 1986) — 26[b]
Shaver v. Secretary of Health and Human Services, 878 F.2d 382 (6th Cir. 1989) — 12[b], 29[b], 63[t]
Sizemore v. Secretary of Health and Human Services, 865 F.2d 709 (6th Cir. 1988) — 4, 5, 29[b]
Snider v. Commissioner of Social Sec., 328 F. Supp. 2d 703 (E.D. Mich. 2004) — 4, 9[a]
Steingraber v. Secretary of Health and Human Services, 762 F.2d 1011 (6th Cir. 1985) — 56[a]
Stone v. Secretary of Health & Human Services, 823 F.2d 553 (6th Cir. 1987) — 60
Street v. Commissioner of Social Security, 390 F. Supp. 2d 630 (E.D. Mich. 2005) — 4
Templeton v. Commissioner of Social Sec., 215 Fed. Appx. 458, 2007 FED App. 0101N (6th Cir. 2007) — 26[b]
VanVolkenburg v. Secretary of Health and Human Services, 865 F.2d 262 (6th Cir. 1988) — 28[b]
Ward v. Commissioner, Social Sec., 72 F.3d 131 (6th Cir. 1995) — 4, 6[b], 23[b]
Weissmiller v. Secretary of Health and Human Services, 785 F.2d 311 (6th Cir. 1986) — 60
White v. Shalala, 114 F.3d 1190 (6th Cir. 1997) — 4
Willis v. Secretary of Health and Human Services, 727 F.2d 551 (6th Cir. 1984) — 63[f]
Wyatt v. Secretary of Health and Human Services, 12 F.3d 216 (6th Cir. 1993) — 7[b], 61[b], 63[u]

Seventh Circuit

Arnold v. Sullivan, 131 F.R.D. 129 (N.D. Ind. 1990) — 89
Avalo v. Bowen, 1988 WL 121590 (N.D. Ill. 1988) — 3
Blackburn v. Heckler, 615 F. Supp. 908 (N.D. Ill. 1985) — 39[a], 61[a]
Blom v. Barnhart, 363 F. Supp. 2d 1041 (E.D. Wis. 2005) — 22
Briscoe ex rel. Taylor v. Barnhart, 309 F. Supp. 2d 1025 (N.D. Ill. 2004) — 89
Brock v. Apfel, 58 Soc. Sec. Rep. Serv. 979, 1998 WL 808860 (N.D. Ill. 1998) — 4, 12[b], 29[b]
Brown v. Sullivan, 1990 WL 103605 (N.D. Ill. 1990) — 8[a], 25[b]
Burden v. Chater, 79 F.3d 1150 (7th Cir. 1996) — 60
Campbell v. Shalala, 988 F.2d 741 (7th Cir. 1993) — 63[w]
Chapman v. Barnhart, 189 F. Supp. 2d 795 (N.D. Ill. 2002) — 22
Chiaramonte v. Sullivan, 1991 WL 66129 (N.D. Ill. 1991) — 3
Creighton v. Sullivan, 798 F. Supp. 1359 (N.D. Ind. 1992) — 8[a], 25[a], 63[e]
Cummings v. Bowen, 677 F. Supp. 975 (N.D. Ill. 1988) — 63[i]
Cummings v. Sullivan, 950 F.2d 492 (7th Cir. 1991) — 63[i]
Czubala v. Heckler, 574 F. Supp. 890 (N.D. Ind. 1983) — 7[a], 24[a], 56[b]
Ewing v. Sullivan, Unempl. Ins. Rep. (CCH) ¶15268A, 1990 WL 357263 (N.D. Ind. 1990) — 3
Felver v. Barnhart, 243 F. Supp. 2d 895 (N.D. Ind. 2003) — 4, 10[a]
Furmanek v. Shalala, 1994 WL 110194 (N.D. Ill. 1994) — 3
Gilbert v. Secretary of Health and Human Services, 1995 WL 646328 (N.D. Ind. 1995) — 3, 68
Godsey v. Bowen, 832 F.2d 443 (7th Cir. 1987) — 3, 47
Gonzalez v. Sullivan, 799 F. Supp. 940 (N.D. Ind. 1992) — 42
Haak v. Chater, 1996 WL 131723 (N.D. Ill. 1996) — 3, 11[a], 58
Humphrey v. Shalala, 1993 WL 313053 (N.D. Ill. 1993) — 3, 25[a], 56[c], 57
Jens v. Barnhart, 347 F.3d 209 (7th Cir. 2003) — 4
Jones v. Chater, 1996 WL 390246 (N.D. Ill. 1996) — 3
Kindred v. Heckler, 595 F. Supp. 563 (N.D. Ill. 1984) — 23[a], 63[a]
Lavin v. Callahan, 55 Soc. Sec. Rep. Serv. 596, 1998 WL 142451 (N.D. Ill. 1998) — 27[a]
Maxwell v. Sullivan, 792 F. Supp. 582 (N.D. Ill. 1992) — 3
Medina v. Shalala, 1993 WL 498206 (N.D. Ill. 1993) — 70, 75, 80
Milbrook v. Sullivan, 1993 WL 78723 (N.D. Ill. 1993) — 26[a], 63[g]
Mills v. Sullivan, 804 F. Supp. 1048 (N.D. Ill. 1992) — 3
Moomey v. Apfel, 3 F. Supp. 2d 970 (C.D. Ill. 1998) — 3, 6[b], 23[b], 60
Nelson v. Bowen, 855 F.2d 503 (7th Cir. 1988) — 3
Palmore v. Department of Health and Human Services, 1989 WL 152377 (N.D. Ill. 1989) — 3, 23[a], 61[a]
Perkins v. Chater, 107 F.3d 1290 (7th Cir. 1997) — 8[b], 63[f]
Pickett v. Bowen, 1986 WL 8048 (N.D. Ill. 1986) — 13[a], 31[a], 61[a]
Prak v. Chater, 892 F. Supp. 1081 (N.D. Ill. 1995) — 3
Regino Cavazos v. Apfel, 130 F. Supp. 2d 1016 (N.D. Ind. 2000) — 89
Sample v. Shalala, 999 F.2d 1138 (7th Cir. 1993) — 11[a], 21
Sanchez v. Bowen, 1988 WL 1432 (N.D. Ill. 1988) — 3, 56[e]
Sangas v. Shalala, 1995 WL 76862 (N.D. Ill. 1995) — 3
Schmidt v. Barnhart, 395 F.3d 737 (7th Cir. 2005) — 65.5
Sears v. Bowen, 840 F.2d 394 (7th Cir. 1988) — 3, 8[a], 25[a], 62[a], 63[e], 63[j]
Smith v. Bowen, 664 F. Supp. 1165 (N.D. Ill. 1987) — 11[b]
Stidman v. Heckler, 1984 WL 3465 (N.D. Ill. 1984) — 40, 56[i]
Stubbs v. Apfel, 57 Soc. Sec. Rep. Serv. 717, 1998 WL 547107 (N.D. Ill. 1998) — 3, 23[a], 57
Taylor v. Barnhart, 150 Fed. Appx. 558 (7th Cir. 2005) — 65.5
Terrell v. Shalala, 1994 WL 386425 (N.D. Ill. 1994) — 10[b]
Thomas v. Barnhart, 54 Fed. Appx. 873 (7th Cir. 2003) — 5.5
Travis v. Sullivan, 985 F.2d 919 (7th Cir. 1993) — 11[a], 28[a], 63[k]
Tsoutsouris v. Shalala, 977 F. Supp. 899 (N.D. Ind. 1997) — 3
Veal v. Bowen, 833 F.2d 693 (7th Cir. 1987) — 83
Webb v. Shalala, 1993 WL 460843 (N.D. Ill. 1993) — 62[b], 63[j]
Wilkerson v. Secretary of Health and Human Services, 996 F.2d 1220 (7th Cir. 1993) — 3
Wilks v. Chater, 1997 WL 158328 (N.D. Ill. 1997) — 23[b], 41[b]
Wilson v. Sullivan, 1990 WL 205457 (N.D. Ill. 1990) — 3
Wolf v. Apfel, 985 F. Supp. 843 (N.D. Ill. 1998) — 89
Wolms v. Barnhart, 71 Fed. Appx. 579 (7th Cir. 2003) — 5
Woodard v. Bowen, 1987 WL 8988 (N.D. Ill. 1987) — 26[a], 63[g]
Woods v. Bowen, 1988 WL 247678 (N.D. Ill. 1988) — 6[a], 23[a], 62[a], 63[a]

Eighth Circuit

Attia v. Barnhart, 306 F. Supp. 2d 895 (D.S.D. 2004) — 55[b]
B.L.D. v. Chater, 1997 WL 102497 (W.D. Mo. 1997) — 5, 26[b]
Chandler v. Secretary of Health and Human Services, 722 F.2d 369 (8th Cir. 1983) — 8[b]
Estes v. Barnhart, 275 F.3d 722 (8th Cir. 2002) — 8[b]
Frost v. Chater, 952 F. Supp. 659 (D.N.D. 1996) — 84
Geigle v. Sullivan, 961 F.2d 1395 (8th Cir. 1992) — 63[a]
Hanson v. Chater, 895 F. Supp. 1279 (N.D. Iowa 1995) — 5, 89
Heim v. Shalala, 895 F. Supp. 1222 (N.D. Iowa 1995) — 39[b]
Hinchey v. Shalala, 29 F.3d 428 (8th Cir. 1994) — 5, 60
Honey v. Sullivan, 1989 WL 134517 (E.D. Ark. 1989) — 90
Jackson v. Apfel, 162 F.3d 533 (8th Cir. 1998) — 25[b]
Jones v. Callahan, 122 F.3d 1148, 166 A.L.R. Fed. 759 (8th Cir. 1997) — 5
Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002) — 5
Mitchell v. Shalala, 48 F.3d 1039, 31 Fed. R. Serv. 3d 419 (8th Cir. 1995) — 62[b], 63[j]
O'Neill v. Shalala, 32 F.3d 571 (8th Cir. 1994) — 5
Parker v. Apfel, 998 F. Supp. 1070 (E.D. Mo. 1998) — 63[u]
Riley v. Shalala, 18 F.3d 619 (8th Cir. 1994) — 5
Smith v. Shalala, 987 F.2d 1371 (8th Cir. 1993) — 63[f]
Sullins v. Shalala, 25 F.3d 601 (8th Cir. 1994) — 63[f]
Tolbert v. Sullivan, 966 F.2d 1459 (8th Cir. 1992) — 7[b], 29[b]
Woolf v. Shalala, 3 F.3d 1210 (8th Cir. 1993) — 3, 5, 23[b]

Ninth Circuit

Agesyan v. Apfel, 133 F.3d 925 (9th Cir. 1998) — 3, 28[a], 56[e]
Allen v. Secretary of Health and Human Services, 726 F.2d 1470 (9th Cir. 1984) — 55[a], 62[b], 63[e], 63[f], 63[i]
Booz v. Secretary of Health and Human Services, 734 F.2d 1378 (9th Cir. 1984) — 3, 11[a], 39[a], 57
Bruton v. Massanari, 268 F.3d 824 (9th Cir. 2001) — 68
Bunnell v. Barnhart, 336 F.3d 1112 (9th Cir. 2003) — 5.5
Burton v. Heckler, 724 F.2d 1415 (9th Cir. 1984) — 3, 17, 26[b], 63[n]
Caenen v. Secretary of Health and Human Services, 722 F. Supp. 629 (D. Nev. 1989) — 29[b], 67[b]
Clem v. Sullivan, 894 F.2d 328 (9th Cir. 1990) — 63[o]
Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1986) — 24[b]
Dallas v. Chater, 105 F.3d 664 (9th Cir. 1997) — 53
Dallas v. Chater, 1995 WL 789004 (N.D. Cal. 1995) — 60, 62[b]
Duggan v. Barnhart, 66 Fed. Appx. 730 (9th Cir. 2003) — 62.5
Embrey v. Bowen, 849 F.2d 418 (9th Cir. 1988) — 55[a]
Finley v. Sullivan, 902 F.2d 1578 (9th Cir. 1990) — 72
Gamer v. Secretary of Health and Human Services, 815 F.2d 1275 (9th Cir. 1987) — 24[b]
Guerrero v. Bowen, 865 F.2d 264 (9th Cir. 1988) — 3, 27[b]
Guzman v. Shalala, 1995 WL 437720 (N.D. Cal. 1995) — 63[b]
Harris v. Barnhart, 40 Fed. Appx. 581 (9th Cir. 2002) — 55[b]
Key v. Heckler, 754 F.2d 1545 (9th Cir. 1985) — 63[h]
King v. Bowen, 852 F.2d 1289 (9th Cir. 1988) — 3
Kokal v. Massanari, 163 F. Supp. 2d 1122 (N.D. Cal. 2001) — 3, 6[a]
Larkin v. Heckler, 584 F. Supp. 512, 40 Fed. R. Serv. 2d 1202 (N.D. Cal. 1984) — 90
Lewis v. Sullivan, 902 F.2d 1578 (9th Cir. 1990) — 67[b]
Lorge v. Shalala, 1996 WL 266129 (N.D. Cal. 1996) — 85
Madrigal v. Sullivan, 777 F. Supp. 1503 (N.D. Cal. 1991) — 73
Markosyan v. Sullivan, 933 F.2d 1014 (9th Cir. 1991) — 25[b], 27[b], 63[f]
Mayes v. Massanari, 276 F.3d 453 (9th Cir. 2001) — 3, 6[b]
McNally v. Secretary of Health and Human Services, 935 F.2d 274 (9th Cir. 1991) — 63[w]
Meyers v. Department of Health & Human Services, 977 F.2d 590 (9th Cir. 1992) — 49, 50, 63[r]
Nelson v. Shalala, 21 F.3d 1114 (9th Cir. 1994) — 63[a]
Nshanyan v. Shalala, 70 F.3d 1279 (9th Cir. 1995) — 63[j]
Padgett v. Sullivan, 933 F.2d 1015 (9th Cir. 1991) — 24[b], 25[b]
Perryman v. Shalala, 1994 WL 163912 (N.D. Cal. 1994) — 31[a], 60
Ramos v. Chater, 1996 WL 478639 (N.D. Cal. 1996) — 23[b], 63[b]
Rice v. Shalala, 1994 WL 326283 (D. Or. 1994) — 90
Robinson v. Barnhart, 469 F. Supp. 2d 793 (D. Ariz. 2006) — 5.5
Roe v. Shalala, 1995 WL 27530 (N.D. Cal. 1995) — 10[a], 27[a], 62[a], 63[i]
Sanchez v. Secretary of Health and Human Services, 812 F.2d 509 (9th Cir. 1987) — 26[b], 63[h], 63[j]
Scarpati v. Secretary of Health and Human Services, 5 F.3d 539 (9th Cir. 1993) — 60
Silva v. Bowen, Unempl. Ins. Rep. (CCH) ¶14293A, 1988 WL 252078 (N.D. Cal. 1988) — 25[b]
Sivilay v. Commissioner of Social Security, 32 Fed. Appx. 911 (9th Cir. 2002) — 24[a]
Wainwright v. Secretary of Health and Human Services, 939 F.2d 680 (9th Cir. 1991) — 23[a], 63[a]
Ward v. Schweiker, 686 F.2d 762 (9th Cir. 1982) — 4, 39[b], 48, 56[k], 63[f], 63[j]
Williams v. Shalala, 35 F.3d 573 (9th Cir. 1994) — 60
Wysocki v. Sullivan, 761 F. Supp. 693 (C.D. Cal. 1991) — 22, 55[a], 58
Zayas v. Sullivan, 974 F.2d 1344 (9th Cir. 1992) — 66
Zurcher v. Bowen, Unempl. Ins. Rep. (CCH) ¶16967, 1986 WL 83387 (D. Or. 1986) — 90

Tenth Circuit

Beauclair v. Barnhart, 453 F. Supp. 2d 1259 (D. Kan. 2006) — 55[b]
Birkinshaw v. Astrue, 490 F. Supp. 2d 1136 (D. Kan. 2007) — 5.5
Cagle v. Califano, 638 F.2d 219 (10th Cir. 1981) — 3
Crozier v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶17810, 1987 WL 123935 (D. Kan. 1987) — 25[a], 63[e]
Gonzales v. Barnhart, 54 Fed. Appx. 294 (10th Cir. 2002) — 5.5
Gorrell v. Chater, 1997 WL 159049 (D. Kan. 1997) — 25[b]
Graham v. Chater, 74 F.3d 1249 (10th Cir. 1995) — 28[a]
Hatfield v. Apfel, 55 Soc. Sec. Rep. Serv. 861, 1998 WL 160995 (D. Kan. 1998) — 24[b]
Hebert v. Sullivan, 1991 WL 127083 (D. Kan. 1991) — 54
Heimerman v. Chater, 939 F. Supp. 832 (D. Kan. 1996) — 6[b], 23[b], 56[a], 63[b]
Henderson v. Department of Health and Human Services, 16 F.3d 416 (10th Cir. 1994) — 24[b]
Hobson v. Sullivan, 1992 WL 402017 (D. Kan. 1992) — 60
Jackson v. Sullivan, 1991 WL 12992 (D. Kan. 1991) — 11[a], 28[a], 63[k]
Jackson v. Sullivan, 1990 WL 171015 (D. Kan. 1990) — 11[a], 26[a], 28[a], 56[d]
Johnson v. Shalala, 1993 WL 560903 (D. Kan. 1993) — 81
Lee v. Chater, 1997 WL 50476 (D. Kan. 1997) — 55[b]
Martin (Clara D.) v. Sullivan (Louis M.), 1993 WL 17472 (D. Kan. 1993) — 89
Meyer v. Sullivan, 742 F. Supp. 586 (D. Kan. 1990) — 89
Miller v. Barnhart, 194 Fed. Appx. 519 (10th Cir. 2006) — 8[b]
Mondragon v. Apfel, 3 Fed. Appx. 912 (10th Cir. 2001) — 18
Rhodes v. Barnhart, 117 Fed. Appx. 622 (10th Cir. 2004) — 23[b], 62.5
Staley v. Sullivan, 1990 WL 118240 (D. Kan. 1990) — 89
Stella v. Sullivan, 1991 WL 12826 (D. Kan. 1991) — 7[b], 24[b]
Williams v. Barnhart, 178 Fed. Appx. 785 (10th Cir. 2006) — 5.3
Williams v. Sullivan, 1989 WL 151920 (D. Kan. 1989) — 10[a], 27[a], 63[i]
Wilson v. Sullivan, 1989 WL 134925 (D. Kan. 1989) — 8[a], 25[a], 63[i]

Eleventh Circuit

Archer v. Commissioner of Social Security, 176 Fed. Appx. 80 (11th Cir. 2006) — 23[b]
Brown v. Schweiker, 557 F. Supp. 190 (M.D. Fla. 1983) — 60
Burden v. Barnhart, 223 F. Supp. 2d 1263 (M.D. Fla. 2002) — 3
Butler v. Barnhart, 347 F. Supp. 2d 1116 (M.D. Ala. 2003) — 10[b]
Cannon v. Bowen, 858 F.2d 1541 (11th Cir. 1988) — 11[a], 28[a], 31[a], 56[e]
Caulder v. Bowen, 791 F.2d 872 (11th Cir. 1986) — 3, 6[a], 23[a], 56[a]
Cherry v. Heckler, 760 F.2d 1186, 94 A.L.R. Fed. 757 (11th Cir. 1985) — 3
Falge v. Apfel, 150 F.3d 1320 (11th Cir. 1998) — 3
Fontanez ex rel. Fontanez v. Barnhart, 195 F. Supp. 2d 1333 (M.D. Fla. 2002) — 3
Fremd v. Barnhart, 412 F. Supp. 2d 1245 (M.D. Ala. 2005) — 56[f]
Frizzell v. Astrue, 487 F. Supp. 2d 1301 (N.D. Ala. 2007) — 89
Greaux v. Apfel, 137 F. Supp. 2d 1308 (M.D. Fla. 2001) — 3
Holley v. Chater, 931 F. Supp. 840 (S.D. Fla. 1996) — 28[b], 63[v]
Hurley v. Barnhart, 385 F. Supp. 2d 1245 (M.D. Fla. 2005) — 3
Hyde v. Bowen, 823 F.2d 456 (11th Cir. 1987) — 7[a], 24[a], 63[c]
Keeton v. Department of Health and Human Services, 21 F.3d 1064 (11th Cir. 1994) — 23[a]
Kleja v. Barnhart, 220 F. Supp. 2d 1330 (M.D. Fla. 2002) — 3
Lipscomb v. Commissioner of Social Sec., 199 Fed. Appx. 903 (11th Cir. 2006) — 6[a]
McCloud v. Barnhart, 166 Fed. Appx. 410 (11th Cir. 2006) — 8[b]
Milano v. Bowen, 809 F.2d 763 (11th Cir. 1987) — 3, 25[a], 59
Smith v. Bowen, 792 F.2d 1547 (11th Cir. 1986) — 6[a], 23[a], 56[a]
Spivey v. Apfel, 133 F. Supp. 2d 1292 (M.D. Fla. 2001) — 3
Stephen v. Commissioner of Social Sec., 386 F. Supp. 2d 1257 (M.D. Fla. 2005) — 3
Thomas v. Sullivan, 1990 WL 53371 (M.D. Fla. 1990) — 90
Vega v. Commissioner of Social Sec., 265 F.3d 1214 (11th Cir. 2001) — 3, 6[a]
Vlamakis v. Commissioner of Social Sec., 172 Fed. Appx. 274 (11th Cir. 2006) — 21.5
Wright v. Heckler, 734 F.2d 696 (11th Cir. 1984) — 10[a]

District of Columbia Circuit

Gooden v. Barnhart, 191 F. Supp. 2d 150, 51 Fed. R. Serv. 3d 1288 (D.D.C. 2002) — 5.5
Johnson v. Apfel, 59 Soc. Sec. Rep. Serv. 488, 1998 WL 934649 (D.D.C. 1998) — 63[c]
Johnson v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶16535, 1985 WL 71811 (D.D.C. 1985) — 74, 86
Krishnan v. Barnhart, 328 F.3d 685 (D.C. Cir. 2003) — 5.5, 65.5
Robinson v. Shalala, 871 F. Supp. 3 (D.D.C. 1994) — 13[a], 55[a]
I. PRELIMINARY MATTERS

§ 1[a] Introduction—Scope

This annotation collects and analyzes those cases in which the courts have applied the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) after its amendment in 1980 to provide that federal district courts may remand to the Commissioner of Social Security actions by applicants for social security benefits challenging the administrative denial of their claim (1) for good cause shown by the Commissioner before the Commissioner files an answer to the applicant's complaint, or (2) at any time upon a showing that there is new and material evidence and there is good cause for failing to introduce the evidence earlier in the proceedings.

§ 1[b] Introduction—Related annotations

Related Annotations are located under the Research References heading of this Annotation.

§ 2. Summary and comment

Every year hundreds of thousands of claims for benefits are filed with the Social Security Administration. When a claim is not accepted by local social security officials, applicants are entitled to a determination of their claim by an administrative law judge and ultimately by the Commissioner of Social Security. After the final decision of the Commissioner of Social Security, an individual may obtain a review of the decision by filing a civil action, within 60 days after the mailing of the notice of decision, in the federal district court for the judicial district in which the applicant resides. The district court has the power to enter on the pleadings and the transcript of the record of the administrative proceeding a judgment affirming, modifying, or reversing the Commissioner's decision, with or without remanding the action for further hearing before the Commissioner. The district court is required to accept as conclusive the findings of the Commissioner as to any fact, if supported by substantial evidence, and where a claim is denied because of the applicant's failure to submit proof in conformity with the social security regulations the court may only review the question of the conformity of the submissions to the regulations and the validity of the regulations.[FN1]
A claimant seeking social security benefits is considered disabled if the claimant is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. The analytical framework for evaluating claims of disability is defined by regulations of the Commissioner of Social Security, which set forth a five–step inquiry. (20 C.F.R. §§ 404.1520, 416.920). The first step is a decision whether the claimant is engaged in 'substantial gainful activity.' If so, benefits are denied. If not, the second step is a decision whether the claimant's medical condition or impairment is 'severe.' If not, benefits are denied. If the impairment is 'severe,' the third step is a decision whether the claimant's impairments meet or equal the 'Listing of Impairments' set forth in subpart P, app. 1, of the social security regulations. These are impairments acknowledged by the Commissioner to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the 'listed' impairments, the claimant is conclusively presumed to be disabled and entitled to benefits. If the claimant's impairments do not satisfy the 'Listing of Impairments,' the fourth step is assessment of the individual's 'residual functional capacity,' i.e., the capacity to engage in basic work activities, and a decision whether the claimant's residual functional capacity permits engaging in the claimant's prior work. If the residual functional capacity is consistent with prior employment, benefits are denied. If not, the fifth and final step is a decision whether a claimant, in light of the residual functional capacity, age, education, and work experience, has the capacity to perform 'alternative occupations available in the national economy.'
The initial burden is on claimants to prove that they are disabled within the meaning of the statute. Once the claimant carries the burden of proving disability by showing that the impairment prevents the return to the claimant's prior employment, the claimant has established a prima facie case, and the burden shifts to the Commissioner to prove the fifth step—that there exists alternative substantial gainful employment in the national economy that the claimant can perform considering not only physical capacity but also age, education, experience, and training.[FN2]
As provided in the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) prior to 1980, the federal district courts had the power, in addition to entering a judgment affirming, modifying, or reversing the decision of the Commissioner, to remand the case to the Commissioner[FN3] for further review on motion by the Commissioner before filing an answer, and, at any time, on good cause shown, for taking of additional evidence before the Commissioner. In 1980, Congress, in response to a perception that the district courts were remanding cases too often in the sense that they were remanding cases where they disagreed with the decisions of administrative law judges, amended the sixth sentence of § 205(g) to provide that the power of the district courts to remand a case at any time was limited to cases in which there was a showing made that there was additional evidence that was new and material and there was good cause for failing to incorporate such evidence into the record in a prior proceeding.
The meaning of the requirement that additional evidence be "material" to justify remand pursuant to § 205(g) is not obvious. While the term materiality has a commonly accepted meaning in evidence law, the meaning of the term in § 205(g) is somewhat different since it does not simply mean evidence that has a tendency to prove or disprove a disputed matter. Rather, courts have spoken of "materiality" in § 205(g) as meaning evidence that has a reasonable possibility (§ 3, infra) or reasonable probability (§ 4, infra) or reasonable likelihood (§ 5, infra) of causing the Commissioner to change a decision regarding a claim. What courts that use the term "reasonable probability" or "reasonable likelihood" mean by the term is not clear, since the normal meaning of the term "probability" is that the occurrence in question is more likely than not to occur, and the significance of adding the word "reasonable" is murky. However, the trend among the circuits is to adopt a "reasonable possibility" meaning for "material" in § 205(g) so that new evidence is material if there is a reasonable possibility that the evidence will cause the Commissioner to change the decision on the claim in question. Clearly, a "reasonable possibility" standard is less demanding than one requiring a showing that there is probability or that it is likely that the additional evidence would cause the decision of the Commissioner to change the decision.
In general, the requirement in the sixth sentence of § 205(g) that evidence be new has not presented too much difficulty to claimants seeking a remand of their case to the Commissioner of Social Security as long as the evidence presented was not cumulative of evidence presented at the administrative hearing. Although some courts have held, for example, that an opinion of a consulting physician is not new where it is based on evidence presented at the administrative hearing, the courts have generally spent more time focusing on whether the evidence is material and whether good cause exists for the failure to present the material in prior proceedings than they have in considering whether evidence is "new."
In cases involving back problems, the courts have found that additional medical evidence was new where it consisted of medical reports concerning operations that the claimant underwent after the administrative hearing, myelograms revealing undiagnosed disc herniations, vocational assessments and physical capacities evaluations where none previously existed, a physician's report, dated after the administrative hearing, of an examination of the claimant prior to the hearing, and a physician's opinion that the claimant's problems might result from a herniated disc where the prior reports of the physician had not suggested a cause for the claimant's problems (§ 6[a], infra). On the other hand, courts have found reports of physicians retained after the administrative hearing to evaluate the claimant's condition not to constitute new evidence where the record contained substantial medical evidence, and the courts have reached the same conclusion with respect to conclusory opinions of treating physicians and evidence of surgery after the administrative hearing where the administrative law judge knew at the time of the hearing that such surgery was contemplated (§ 6[b], infra).
In cases of orthopedic injuries not involving the back, the courts found evidence to be new when it consisted of medical records when the administrative law judge had failed previously to obtain them, evidence of subsequent hospitalizations, evidence that a person whose claim was based on shrapnel wounds to his left arm had shrapnel in his right hip, and evidence that the cause of a claimant's pain in his hip and leg might result from a loose prosthetic device (§ 7[a], infra). Additional evidence has been held not new where it has been found to simply reiterate evidence presented at the administrative hearing or proves a point assumed by the administrative law judge (§ 7[b], infra).
Claimants for social security disability benefits based on physical ailments whose claim has been denied have frequently requested a remand under § 205(g) because they have been subsequently diagnosed as suffering from psychiatric illnesses. Generally, the courts have found such diagnoses to constitute new evidence because the diagnoses did not exist at the time of the administrative hearing (§ 8[a], infra), although other courts have found such evidence not new where evidence of psychiatric problems was presented at the administrative hearing or was otherwise available (§ 8[b], infra). In the case of neurological injuries, medical evidence from a neurologist and an orthopedist concerning an applicant for disability benefits seizures was found to be new when the only evidence at the administrative hearing concerning the seizures was that of the applicant, as was a report from a psychiatrist that the applicant's disabilities resulted from oxygen deprivation at birth (§ 9[a], infra), while evidence of additional seizures has been held not new where the administrative record contained evidence of the applicant's seizures (§ 9[b], infra). Reports indicating that applicants for disability benefits based on physical injuries had low IQ's and functioned at very low levels have been held new (§ 10[a], infra), while a remand to consider IQ test results has been held not to involve new evidence where the results were in existence at the time of the administrative hearing (§ 10[b], infra).
The courts have held that evidence of the subsequent hospitalizations is new evidence as was done where claimants for disability benefits based upon heart problems have been hospitalized for heart–related problems after the denial of their claims, and where medical tests were performed after the administrative denial of the applicant's claim (§ 11[a], infra). The courts have in some cases held that medical reports from doctors based on tests done prior to the administrative hearing can constitute new evidence, as can reports indicating deterioration of the claimant's condition (§ 11[b], infra). However, a letter from a doctor stating that an applicant's heart condition at a certain date was related to his then–current heart condition was not new evidence since the evidence in the letter not already in the record was the statement that the applicant's condition at the date in question was related to his then–current condition, which the court found irrelevant since the administrative law judge found the applicant not disabled at the time in question (§ 11[b], infra).
The courts have held in a few cases that additional evidence indicating that the applicant suffered from arthritis or that the applicant's arthritic condition had worsened constituted new evidence (§ 12[a], infra) but reached the contrary conclusion when the Commissioner did not dispute the existence of the claimant's arthritis (§ 12[b], infra). Similarly, additional evidence of high blood pressure has been held to constitute new evidence where the applicant's condition appeared to have deteriorated since the administrative hearing or where the administrative law judge did not have possession of the medical records at the time of the administrative hearing (§ 13[a], infra) but has been held not to constitute new evidence when it was evidence that the claimant could have presented to the administrative hearing (§ 13[b], infra). Evidence of neuritis has been held new where the applicant's physician failed to fill out the forms sent him by the administrative law judge and where the applicant presented 5 reports from physicians dated after the date of the administrative hearing, where the court stated that the reports were clearly new because they could not have been presented at the hearing and were not merely cumulative since they appeared to corroborate the applicant's subjective complaints of pain (§ 14, infra). Evidence of the activities of a claimant for disability benefits based on diabetes has been held not new, as has evidence of dizziness and jerking of the abdomen, where the record contained similar evidence (§ 15, infra.).
A letter from a physician stating that he had been treating the applicant for chronic fatigue syndrome since 4 years before the administrative hearing date was held to constitute new evidence(§ 16, infra), as was a letter from a psychiatrist attributing a claimant's inability to learn new information or skill to the long–term effects of alcoholism (§ 17, infra) and 4 letters from physicians concurring in the diagnosis that the applicant suffered from fibromyalgia and 2 magazine articles describing the disease (§ 18, infra). Additional evidence in the form of the side–effects of a medicine that an applicant was required to take for her back problem has been held to constitute new evidence (§ 19, infra) since it was not cumulative as it had not been presented to the administrative law judge, but evidence of vision problems was held not new since the problems were the same as those mentioned in a prior letter from the doctor (§ 20, infra). A letter from a doctor stating that the claimant's impairment equaled a listed impairment and resulted from cerebrovascular disease was not new, since the doctor's conclusion about the applicant's impairments was based upon the applicant's treatment at a neurology clinic, which was part of the administrative record and therefore could not be characterized as new (§ 21, infra).
Unspecified medical evidence concerning the onset date of a claim was held new because similar evidence could not be found in the administrative record, as was a medical report prepared after the administrative law judge denied an applicant's claim for disability benefits based on acute emphysema and angina (§ 22, infra).
With the adoption of the "reasonable possibility" standard of materiality by most circuits the requirement that the new evidence be material can often be satisfied where the evidence is not cumulative of evidence presented at the administrative hearing. However, one area of recurring contention is when the applicant submits evidence of the condition of the applicant subsequent to the administrative hearing. In such cases, the Commissioner often challenges the evidence on the grounds that it is not relevant because the matter at issue is the condition of the applicant at the time the applicant was last eligible for disability benefits. The Commissioner often argues that, although the applicant may be disabled at the time the request for remand is made, the disability is the result of the deterioration of a progressive condition and the fact that the applicant may be disabled at the time the request for remand is made does not mean the applicant was disabled at the time the applicant was last eligible for benefits or that the administrative denial of the applicant incorrect. Rather, the Commissioner usually takes the position that the applicant, if eligible, should file a new claim for disability benefits based upon the deteriorated condition.
Evidence that an applicant for disability benefits based on back problems had undergone back surgery after the administrative denial of the applicant's claim has been held to constitute material evidence, as has evidence of disc and other back abnormalities in the form of myelograms, CAT or MRI scans or a physician's diagnosis after the administrative denial of the applicant's claim (§ 23[a], infra). Vocational assessments, physical capacities evaluations, and reports from treating physicians have also been held material where there was a dispute as to the residual functional capacity of an applicant (§ 23[a], infra). Sworn testimony from a treating physician based on notes of physical examinations and x–rays relating to a period prior to the date of the administrative decision has also been held material (§ 23[a], infra). On the other hand, reports of physicians concerning back problems have been held not material where they were cumulative of material already in the administrative record or where the reports were dated so far after the administrative hearing that they did not shed light upon the applicant's condition at the time in question (§ 23[b], infra). It has also been held in a number of cases that evidence of back surgery after the administrative denial of the applicant's claim is not material where the fact that the applicant might or was likely to undergo surgery was known to the administrative law judge at the time of the hearing (§ 23[b], infra).
In cases involving orthopedic injuries other than back injuries, the courts have held material additional evidence of hospitalizations after the denial of the applicant's claim for disabilities, medical records containing letters from the applicant's treating physicians where the administrative law judge failed to obtain them in a case of a pro se applicant for disability benefits and letters from the applicant's treating physician explaining the restrictions imposed by the applicant's injuries where the paucity of medical evidence precluded review of the administrative law judge's decision and where the additional medical evidence provided objective medical support for the applicant's claim of pain (§ 24[a], infra). On the other hand, additional evidence in cases involving orthopedic injuries other than back injuries has been held not material when the additional evidence was essentially the same as that presented at the administrative hearing, when the evidence presented was not relevant to the disability period under consideration, when it did not address the applicant's residual functional capacity and evidence of such capacity was the key issue in the proceeding, and when the evidence would at most indicate deterioration of the applicant's condition from the date of the administrative hearing (§ 24[b], infra).
Additional evidence of psychiatric problems has been held material in many cases, including cases in which the initial application was based upon physical ailments, where the evidence suggested that the applicant's condition was long–term, such as where the applicant suffered from depression or schizophrenia, where the evidence reported additional maladaptive behaviors, where the evidence bore directly upon the applicant's capacity to work, and where the evidence consisted of an evaluation made shortly after the administrative denial of the applicant's claim (§ 25[a], infra). However, additional evidence of psychiatric problems has been held not to be material where the administrative law judge considered essentially the same evidence as that contained in the later report, where the court found there was no basis for concluding that the applicant had been depressed for 4 or 5 years as a psychological report did, where the report did not purport to evaluate the applicant's ability to function in a work setting, where the applicant was evaluated as suffering from post–traumatic stress disorder, where the report related to a period after the period under consideration, where a psychological report offered insight into the claimant's recent mental heath and a social worker's assessment offered insight into the claimant's recent functional status but did not address the claimant's condition 3 years earlier at the time of the disability application or 2 years earlier at the time of the administrative hearing, where the new evidence suggested the claimant suffered from depression but did not establish or suggest a possibility of a mental impairment that could prevent the applicant from any substantial gainful activity that could be expected to last for a continuous period of 12 months, where a psychological report was made 3 years after the administrative hearing and noted that the applicant's condition had been deteriorating recently, and where the significance in the change of the diagnosis of the applicant as suffering from "adjustment disorder with depressed mood" prior to the administrative hearing and "schizophrenic disorder, or an anxiety disorder in a paranoid personality" a year later was not explained (§ 24[b], infra). Additional evidence of neurological problems has been held material where a psychiatrist opined that the most likely explanation of the applicant's impairment was a birth injury involving damage to the brain resulting from a lack of oxygen and that the applicant could not hold the simplest of jobs, where neurological testing in 1986 was found to be reasonably proximate to the condition of the applicant in 1982, and where psychological testing showed the applicant had an IQ of 69, mental retardation, organic mental disorder and dysthymia despite the fact that the administrative law judge had found the applicant was severely impaired by cerebral palsy (§ 25[a], infra). On the other hand, additional evidence of neurological problems has been held not material where a letter from a treating physician stated that the applicant was totally disabled by cerebral palsy but the fact that the applicant suffered from cerebral palsy was well documented in the administrative record and was extensively evaluated by the administrative law judge, where additional medical evidence submitted by an applicant for disability benefits based upon a seizure disorder were essentially cumulative of evidence in the record, where the medical reports discussed the mother ratherthan the child applicant and did not support a checklist that the author of the report prepared for the administrative law judge, and where the applicant at the time of the hearing did not suggest that he suffered from a disabling mental impairment (§ 26[b], infra). Additional evidence of low mental functioning has been held material where a comprehensive psychological exam showed the applicant's mental capacities were more severely limited than earlier evidence had shown and suggested along with the applicant's physical limitations that he could not perform basic work as defined by social security regulations, where an auto mechanic who could no longer work as such because of a hip replacement was found to be unable to obtain employment that required writing simple sentences or performing simple mathematical equations, and where a report concluded that an applicant for disability benefits was disabled due to mental slowness, difficulty processing information of any complexity, limited attention span, and memory problems (§ 27[a], infra). Additional evidence of low mental functioning has been held not material where the report was not made by a treating physician and did not establish that the applicant's mental problems precluded him from working as a groundskeeper, where the administrative law judge had considered the applicant's limited intellectual capacity but found that it was not of comparable severity to an impairment that would disable an adult, and where the issue of the applicant's ability to concentrate on her work was addressed at the administrative hearing by a psychiatrist who testified that poor concentration was not likely to affect the claimant's ability to perform certain occupations (§ 27[b], infra).
Additional evidence of heart disease has been held material where the applicant was hospitalized and operated on for heart problems after the denial of his claim, where additional medical testing done after the denial of the applicant's claim yielded evidence of heart disease, and where a letter from a treating physician after the date of the administrative denial of the applicant's claim stated that the applicant suffered from prinzmental angina and was not able to do even sedentary work because of her unstable angina (§ 28[a], infra). However, evidence of heart disease has been held not to be material even when it consisted of evidence of an applicant's hospitalizations (including hospitalization for a "heart attack" and open heart surgery) after the administrative denial of the applicant's claim where there was no expert medical evidence indicating that the subsequent hospitalizations were new evidence of prior disabilities rather than evidence of an exacerbation or recurrence of a impairment that was not disabling at the time under consideration, or where the additional hospitalization occurred after the period in question (§ 28[b], infra). Evidence of heart problems prior to the period under consideration has also been held not material when the administrative law judge found that the applicant's condition had been remedied by angioplasty (§ 28[b], infra).
Evidence of arthritis has been held material where the reports were made 2 years after the administrative hearing and showed that the applicant had significant difficulty standing, moving, walking, or sitting for extended periods of time and X–rays indicated the persistence of arthritis since they documented the severity of the applicant's impairment, were closely linked to the applicant's impairment during the pertinent period of disability, and showed the applicant's condition had worsened, contrary to findings of improvement by the administrative law judge (§ 29[a], infra). However, evidence of arthritis has been held not material for purposes of § 205(g) where X–rays of the applicant at the relevant time period showed no abnormalities and the applicant did not complain about, or present evidence of, arthritis at the administrative hearing, where a letter from a treating physician stated that the applicant's arthritis had worsened and the only statement concerning the relevant time period was that the physician had been treating the applicant since before that period, where the new evidence did not relate to the time period in question and there was substantial evidence to support the administrative law judge's conclusion that the applicant had no significant limitation on motion when the administrative law judge wrote his decision, and where a physician's statement that the applicant was totally disabled was not supported by a laboratory test or diagnostic procedure identifying a specific physical condition that would account for the inability to return to prior employment (§ 29[b], infra). Evidence of neuritis has been held material where the claimant's treating physician had failed to complete forms sent to him by the administrative law judge and reports of 5 physicians, which postdated the administrative hearing, appeared to corroborate the applicant's subjective complaints of pain (§ 30, infra).
High blood pressure readings subsequent to the administrative denial of an applicant's disability claim have been held material where the court's prior affirmance of the administrative denial of the applicant's claim was based in part on the findings of the administrative law judge that the applicant's condition was improving, where readings prior to the administrative hearing had been lower and not accompanied by persistent headaches or dizziness, and where the applicant had been hospitalized for treatment of obesity and hypertension (§ 31[a], infra). Such evidence has been held not material where the applicant's treating physician had never opined that high blood pressure limited the applicant's activities in any way or restricted his ability to work during the time in question, where the applicant's blood pressure decreased during treatment, and where the letter of the treating physician in connection with the applicant's disability claim stated that the applicant was not "totally disabled" (§ 31[b], infra).
Evidence of post–polio syndrome has been held not material where the administrative law judge fully credited the applicant's history of polio but denied her claim because there was insufficient evidence of any disabling restrictions coupled with affirmative evidence that the applicant was still able to perform some types of work, and where the evidence was a letter of a specialist in post–polio syndrome, which did not indicate to what extent the claimant was disabled or identify what limitations, if any, were created by the disease during the relevant time period, so that the letter added nothing to the treating physician's opinion that the child was totally disabled due to post–polio syndrome (§ 32, infra). On the other hand, evidence of chronic fatigue syndrome has been held material where a letter of the applicant's treating physician stated that the applicant has been disabled since prior to the time period in question (§ 33, infra), as have reports of 4 physicians diagnosing the applicant as suffering from fibromyalgia and 2 magazine articles describing the disease (§ 34, infra), evidence concerning the side–effects of a medication that an applicant was taking for her back problems (§ 35, infra), evidence that an applicant suffered from hepatitis B which explained the applicant's subjective complaints of fatigue, where the administrative law judge did not include complaints of fatigue in his hypothetical questions posed to vocational experts (§ 36, infra), a letter from a treating physician stating that an applicant diagnosed as suffering from hemiplegic migraines after a stroke–like occurrence had been suffering hemiplegic migraines during the 3 years prior to the diagnosis (§ 37, infra), and a medical report stating that the impairments of an applicant with sarcodosis of the lung equaled criteria of impairment in the social security disability regulations (§ 38, infra).
Evidence of alcoholism has been held material where the evidence consisted of a psychological evaluation concluding that the deterioration of the applicant's mental condition was due to long–term alcohol abuse and that the applicant could no longer do the work that he had done because he was unable to perform even the simplest tasks easily, where the administrative law judge had expressly considered the issue of alcoholism in finding that the applicant was no longer disabled due to alcoholism when the applicant did not contest the review of his disability benefits,and when the evidence consisted of evidence of hospitalizations for coughing and spitting blood prior to and after the disability period in question and the administrative law judge had specifically noted the absence of any hospitalizations around the time in question (§ 39[a], infra). Evidence of alcoholism has been held not material where the applicant was hospitalized 4 months after the administrative hearing date, where the applicant was hospitalized after the denial of his claim but his symptoms were quickly resolved and he was released from the hospital in good condition, where the new evidence consisted of evidence of a deteriorated condition and there was substantial evidence supporting the administrative law judge's view that the applicant was not disabled at the date of the administrative hearing, and where the application for benefits in question did not allege disability due to alcoholism (§ 39[b], infra). Evidence of sobriety has been held not material where the applicant sought to have changed the determination that the applicant was alcoholic and therefore her benefits should be paid to a representative where the applicant denied strenuously at the administrative hearing that she was an alcoholic but substantial evidence supported the administrative law judge's decision that a representative payee was appropriate (§ 39[b], infra).
Evidence of cancer serious enough to require the removal of the voicebox of an applicant for disability benefits based on alcoholism and related illnesses was held "obviously material" (§ 40, infra), as were evidence of completely obstructed veins in an applicant's left leg where the administrative law judge had terminated the applicant's benefits based on the absence of clinical evidence of disability (§ 41, infra), and a diagnosis of Whipple's disease—a rare disease characterized by steatorrhea, frequently generalized lymphadenopathy, arthritis, fever, and cough (§ 42, infra). On the other hand, evidence of asthma has been held not material for purposes of § 205(g) where it was not clear whether a letter from a treating physician reflected the claimant's condition at the date of the letter (1994) rather than during the relevant time period of 1987–1992 (§ 43, infra), as has evidence of minor surgery (§ 44, infra), and evidence of kidney problems, a new letter written about a year or so after the administrative denial of the applicant's claim based on kidney problems and a residual functional capacity report of the same date, because they did not relate to the time period at issue (§ 45, infra). Likewise, evidence of diabetes consisting of dizziness and jerking of the abdomen, when the symptoms were discussed at length at the administrative hearing (§ 46, infra), a tentative diagnosis of Epstein–Barre disease based on an examination 11 months after the expiration of eligibility for disability benefits (§ 47, infra), evidence of the deterioration of the applicant's pancreas where the evidence of deterioration was offered in 1986 and the administrative hearing took place in 1983 (§ 48, infra), a 1980 diagnosis of a woman with myasthenia gravis when the applicant's eligibility for disability benefits ended in 1975 (§ 49, infra), a diagnosis of Marie–Charcot–Tooth's disease made approximately 5 years after the expiration of eligibility for disability benefits (§ 50, infra), a medical report not identifying the source of the applicant's pain (§ 51, infra), evidence of the applicant's addiction to painkillers where the addiction began 3 years after the expiration of the applicant's eligibility for disability benefits (§ 52, infra), vision problems involving lack of color perception (§ 53, infra), and evidence of difficulties with veins in the applicant's legs where the additional evidence disclosed no new medical abnormalities (§ 54, infra), have all been held not material.
Unspecified medical evidence has been held material where the evidence in question was relevant to the claimant's condition at the time at issue and was not available at the time of the administrative hearing, where the evidence was a letter from a treating physician who testified at the administrative hearing, and where the evidence dealt with the onset date of an applicant's disability claim (§ 55[a], infra). Unspecified medical evidence has been held not material where the additional records were created nearly 2 years after the final determination of the applicant's disability claim, and where the evidence related to a period prior to that in question (§ 55[b], infra).
The requirement in the sixth sentence of § 205(g) that good cause be shown for the failure to introduce the additional evidence in question earlier in the proceedings has proved to be more difficult to meet than the requirements that the additional evidence be new and material. The courts have uniformly found good cause where the new evidence arose out of a hospitalization of the applicant after the administrative hearing, whether the hospitalization was for back problems (§ 56[a], infra), orthopedic problems other than back problems (§ 56[b], infra), psychiatric illnesses (§ 56[c], infra), neurological injuries (§ 56[d], infra), heart disease (§ 56[e], infra), arthritis (§ 56[f], infra), high blood pressure (§ 56[g], infra), Crohn's disease (§ 56[h], infra), cancer (§ 56[i], infra), phlebitis (§ 56[j], infra) or myasthenia gravis (56[k], infra). Similarly, the courts have found good cause to have existed where applicants established that they were not able to present evidence earlier in the proceedings because they did not have the money to have medical testing performed (§ 57, infra), where the rulings of the administrative law judge could not reasonably have been anticipated (§ 58, infra), or where new evidence was filed a day late (§ 59, infra).
On the other hand, the courts have held that good cause was not established where the evidence in question existed but the applicant did not make it available to the administrative law judge or the Appeals Council (§ 60, infra). Where the evidence existed but was claimed not to have been available to the applicant, the courts have found good cause where they believed that the applicant was not at fault (§ 61[a], infra), while finding a lack of good cause when they found that the applicant was at fault in not making the evidence available (§ 61[b], infra). In a number of cases in which good cause was found the courts have noted that the applicant was not represented by counsel before the administrative law judge or the Appeals Council (§ 62[a], infra), while in other cases where good cause was not found the courts have rejected the argument that the fact that the applicant was not represented by counsel alone was sufficient to establish a lack of good cause (§ 62[b], infra).
Controversy has been greatest in the good cause area when applicants have submitted medical reports or evaluations prepared after the administrative hearing that were not prepared in connection with the applicant's hospitalization after the administrative hearing. In cases involving back injuries (§ 63[a], infra), orthopedic injuries other than back injuries (§ 63[c], infra), psychiatric illnesses (§ 63[e], infra), neurological injuries (§ 63[g], infra), low mental functioning (§ 63[i], infra), heart disease (§ 63[k], infra), chronic fatigue syndrome (§ 63[l], infra), alcoholism (§ 63[m], infra), sarcodosis of the lung (§ 63[o], infra), fibromyalgia (§ 63[p], infra), Epstein–Barre disease (§ 63[q], infra), arthritis (§ 63[r], infra), carpal tunnel syndrome (§ 63[s], infra), and unspecified medical evidence (§ 63[t], infra), the courts have more often found good cause to exist where reports or evaluations were prepared after the date of the administrative hearing where the applicant was not represented by counsel, where the report was prepared by a treating physician, and where obscure medical conditions were involved. On the other hand, in cases involving back injuries (§ 63[b], infra), orthopedic injuries other than back injuries (§ 63[d], infra), psychiatric illnesses (§ 63[f], infra), neurological injuries (§ 63[h], infra), low mental functioning (§ 63[j], infra), heart disease (§ 63[l], infra), alcoholism (§ 63[o], infra), arthritis, and unspecified medical evidence (§ 63[w], infra), the courts have more often found a lack of good cause where the medical reports or evaluations were prepared after the administrative hearing by physicians retained to evaluate the applicant for disability and where no explanation was offered for the failure to have the report prepared before the administrative hearing. In particular, the courts have frequently found good cause not to exist where applicants seek remand to introduce evidence of psychiatric illnesses, sometimes noting that psychiatric illnesses tend to be chronic in nature, so that if the applicant can produce evidence of psychiatric illnesses to the court then the applicant probably could have presented the same evidence to the administrative law judge (§ 63[f], infra).
With respect to the newness of non–medical evidence, the fact that after the decision of the administrative law judge the Veterans Administration held that an applicant for disability benefits was entitled to veterans disability benefits was held to constitute new evidence (§ 64, infra), but the request of an applicant for survivor's benefits that the case be remanded so that additional evidence that a man who died after leaving the house of his second wife intended when he left the house to leave his wife was denied because there was no showing that new evidence existed (§ 65, infra), as was a request by a woman who claimed to be entitled to survivor's benefits because her marriage had never been legally dissolved, since she could not show that there was new evidence concerning the validity of the marriage in question (§ 66, infra).
The courts have differed with respect to whether a determination by a veterans agency or another state agency that an applicant for disability benefits is disabled is material, with some courts holding that such a determination is material (§ 67, infra) and other courts taking a contrary view (§ 68, infra). It has been held that subsequent factual determinations by other administrative law judges dealing with different time periods were not material (§ 69, infra), and that a settlement between the applicant and the applicant's private disability insurer was also not material (§ 70, infra), as was an affidavit by the husband of an applicant concerning the daily activities of the applicant, where the administrative law judge found the applicant's testimony concerning her daily activities incredible (§ 75, infra). Evidence that the amount that the claimant would receive from her disability insurer would not be decreased if she received social security disability benefits has been held material (§ 71, infra), while evidence that an applicant and his mother were participating in a family court program for incorrigible children was held not material (§ 71, infra), as was an affidavit concerning the paternity of a child in an action for survivor's benefits (§ 72, infra), the fact that an applicant had turned 50 (§ 73, infra), and evidence that the friends of a woman considered her husband to be the man through whom she claimed survivor's benefits (§ 74, infra).
In cases concerning good cause and non–medical evidence, courts have found good cause where the additional evidence comprised disability determinations made by other agencies after the administrative denial of the applicant's claim (§ 76, infra), where the transcript of the administrative hearing was lost (§ 77, infra), where the applicant's attorney was not able to obtain the applicant's school records despite diligent efforts to do so (§ 78, infra), where the additional evidence consisted of family history of the applicant subsequent to the administrative hearing (§ 79, infra), where the additional evidence showed that the applicant's disability insurer was not requiring the applicant to file the claim for social security disability benefits (§ 80, infra), and where the additional evidence was evidence of a conviction for drunk driving and the conviction did not occur until after the administrative denial of the applicant's claim (§ 81, infra). Good cause has not been found for the failure to introduce a W–2 form reflecting the applicant's earnings for the year in question, where the form was in the applicant's possession during the administrative hearing (§ 82, infra), where the applicant did not inform the district court of the fact that an application for disability benefits for a period of disability subsequent to the period at issue had been granted by the Commissioner (§ 83, infra), where the applicant by oversight failed to introduce into evidence a letter explaining the terms of a workers' compensation award in his possession at the time of the hearing (§ 84, infra), where the applicant failed to introduce at the administrative hearing briefs from a prior workers compensation hearing (85, infra), where there was evidence that the friends of a woman who claimed widow's benefits through a man she claimed has husband considered her to be the man's wife (86, infra), where the applicant sought to introduce evidence that a man who had walked out of the house of his second wife intended to leave her (§ 87, infra), and where an applicant for social security disability benefits failed to introduce evidence that he had been employed at a certain period in time (§ 88, infra).
Most actions under the sixth sentence of § 205(g) are filed by applicants for benefits who want to have their case remanded to the Commissioner for consideration of additional evidence. The sixth sentence also authorizes the Commissioner to request remands to consider additional evidence where there is new and material evidence and good cause exists for the Commissioner's failure to introduce the evidence earlier in the proceedings. Where the Commissioner requests a remand before filing an answer to the claimant's complaint the Commissioner need only show good cause to obtain a remand. Requests for remand by the Commissioner have been upheld where the applicant refused to undergo testing of the level of anti–convulsive medication in his blood, where there was no evidence of an applicant's residual functional capacity because the administrative law judge had found that she could do the same work she had done 25 years earlier, where the Commissioner had made diligent efforts to obtain evidence that the applicant had worked during the period during which she claimed to be disabled but the applicant had thwarted the Commissioner's efforts, where the applicant did not oppose the remand in a request for remand before the applicant's answer, the court noting that a favorable ruling on the applicant's request for benefits would resolve the matter without court action, and where the Commissioner sought remand to more fully investigate court records to determine whether a deceased wage–earner divorced his first wife before he entered into a common–law marriage with the claimant (§ 89, infra). The courts have not been reluctant to refuse requests for remand by the Commissioner, however, where they believe that the applicant has presented evidence sufficient to prove eligibility for benefits, especially where years have passed since the applicant initially filed the claim in question (§ 90, infra). On occasion, the courts have stayed an order reversing the termination of social security disability benefits to allow the Commissioner to introduce evidence supporting a remand under § 205(g) (§ 91, infra).

II. TESTS FOR DETERMINING MATERIALITY OF EVIDENCE

§ 3. Reasonable possibility standard

[Cumulative Supplement]

The courts in the following cases held that new evidence was material, for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts 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 that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding, when there is a reasonable possibility that the additional evidence will result in a change of the Commissioner's decision with respect to the matter at issue.
First Circuit
Falu v. Secretary of Health and Human Services, 703 F.2d 24, 1 Soc. Sec. Rep. Serv. 333 (1st Cir. 1983)
Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 18 Soc. Sec. Rep. Serv. 711, Unempl. Ins. Rep. (CCH) ¶17493 (1st Cir. 1987)
Delgado v. Secretary of Health and Human Services, 43 F.3d 1456 (1st Cir. 1994) (publication and use restricted)
Defosse v. Bowen, 670 F. Supp. 1078, 19 Soc. Sec. Rep. Serv. 443, Unempl. Ins. Rep. (CCH) ¶17934 (D. Mass. 1987)
MacKinnon v. Bowen, Unempl. Ins. Rep. (CCH) ¶14639A, 1989 WL 270105 (D. Mass. 1989)
Zurek v. Shalala, 878 F. Supp. 314, 47 Soc. Sec. Rep. Serv. 303, Unempl. Ins. Rep. (CCH) ¶14304 (D.N.H. 1994)

Second Circuit
Lisa v. Secretary of Dept. of Health and Human Services of U.S., 940 F.2d 40, 34 Soc. Sec. Rep. Serv. 303, Unempl. Ins. Rep. (CCH) ¶16241A (2d Cir. 1991)
Jones v. Sullivan, 949 F.2d 57, 35 Soc. Sec. Rep. Serv. 532, Unempl. Ins. Rep. (CCH) ¶16376A (2d Cir. 1991)
Cassera v. Secretary of Health and Human Services, 104 F.3d 355 (2d Cir. 1996) (publication and use restricted)
Rosado v. Sullivan, 805 F. Supp. 147, 39 Soc. Sec. Rep. Serv. 483 (S.D.N.Y. 1992)
Firpo v. Shalala, 1995 WL 92264 (S.D.N.Y. 1995), aff'd, 100 F.3d 943 (2d Cir. 1996)
Abreu-Mercedes v. Chater, 928 F. Supp. 386, 51 Soc. Sec. Rep. Serv. 242, Unempl. Ins. Rep. (CCH) ¶15269B (S.D.N.Y. 1996)
Schaffer v. Apfel, 992 F. Supp. 233, 55 Soc. Sec. Rep. Serv. 985 (W.D.N.Y. 1997)
Pizzonia v. Chater, 1997 WL 436486 (S.D.N.Y. 1997)
Madrigal v. Callahan, 1997 WL 441903 (S.D.N.Y. 1997)
Borrero v. Callahan, 2 F. Supp. 2d 235, 57 Soc. Sec. Rep. Serv. 322 (D. Conn. 1998)
Roman v. Apfel, 24 F. Supp. 2d 263 (D. Conn. 1998)
Rich v. Apfel, 57 Soc. Sec. Rep. Serv. 359, 1998 WL 458056 (S.D.N.Y. 1998)
Rich v. Apfel, 57 Soc. Sec. Rep. Serv. 359, 1998 WL 458056 (S.D.N.Y. 1998)
Maestre v. Appel, 1998 WL 477950 (S.D.N.Y. 1998)

Third Circuit
Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 7 Soc. Sec. Rep. Serv. 127, Unempl. Ins. Rep. (CCH) ¶15549 (3d Cir. 1984)
Newhouse v. Heckler, 753 F.2d 283, 8 Soc. Sec. Rep. Serv. 237, Unempl. Ins. Rep. (CCH) ¶15833 (3d Cir. 1985), related reference, 1988 WL 6169 (E.D. Pa. 1988)
Jones v. Sullivan, 954 F.2d 125, 36 Soc. Sec. Rep. Serv. 189, Unempl. Ins. Rep. (CCH) ¶16438A (3d Cir. 1991)
Hawkins for Reilly v. Heckler, 631 F. Supp. 711, 13 Soc. Sec. Rep. Serv. 616, Unempl. Ins. Rep. (CCH) ¶16867 (D.N.J. 1985)
Boccuto v. Heckler, 1985 WL 2615 (E.D. Pa. 1985)
Pysher v. Bowen, 1986 WL 11444 (E.D. Pa. 1986)
Bradley v. Bowen, 667 F. Supp. 161, 19 Soc. Sec. Rep. Serv. 163, Unempl. Ins. Rep. (CCH) ¶17850 (D.N.J. 1987)
Santiago v. Bowen, 1987 WL 13905 (D.N.J. 1987)
Davis v. Bowen, 1987 WL 27913 (D.N.J. 1987)
Martinez v. Bowen, 1988 WL 33911 (E.D. Pa. 1988)
Chisholm v. Secretary of Health and Human Services, 717 F. Supp. 366, 26 Soc. Sec. Rep. Serv. 687 (W.D. Pa. 1989)
Ziehl v. Bowen, 1989 WL 5331 (E.D. Pa. 1989)
Scott v. Bowen, 1989 WL 130563 (E.D. Pa. 1989)
Utkus v. Sullivan, 1989 WL 86599 (E.D. Pa. 1989)
McCloskey v. Sullivan, 1992 WL 245930 (E.D. Pa. 1992)
Hoffman v. Shalala, Unempl. Ins. Rep. (CCH) ¶14610B, 1995 WL 290442 (E.D. Pa. 1995)

Fourth Circuit
Borders v. Heckler, 777 F.2d 954, 11 Soc. Sec. Rep. Serv. 276, Unempl. Ins. Rep. (CCH) ¶16657 (4th Cir. 1985)
McCauley v. Bowen, 823 F.2d 547 (4th Cir. 1987) (publication and use restricted)
White v. Bowen, 825 F.2d 409 (4th Cir. 1987), appeal after remand, 945 F.2d 399 (4th Cir. 1991) (publication and use restricted)
Holstein v. Bowen, 841 F.2d 1122 (4th Cir. 1988) (publication and use restricted)
Hartsell v. Bowen, 861 F.2d 264 (4th Cir. 1988) (publication and use restricted)
Payne v. U.S. Dept. of Health & Human Services, 869 F.2d 594 (4th Cir. 1989) (publication and use restricted)
Hacker v. Sullivan, 887 F.2d 1079 (4th Cir. 1989) (publication and use restricted)
Bowen v. Secretary, Dept. of Health and Human Services, 922 F.2d 835 (4th Cir. 1991)
Meadows v. Sullivan, 930 F.2d 913 (4th Cir. 1991)
Wilkins v. Secretary, Dept. of Health and Human Services, 953 F.2d 93, 36 Soc. Sec. Rep. Serv. 112, Unempl. Ins. Rep. (CCH) ¶16418A (4th Cir. 1991)
Riffle v. Shalala, 47 F.3d 1165 (4th Cir. 1995) (publication and use restricted)
Clagg v. Chater, 70 F.3d 111 (4th Cir. 1995) (publication and use restricted)
Fagg v. Chater, 106 F.3d 390 (4th Cir. 1997) (publication and use restricted)
Skeens v. Sullivan, 737 F. Supp. 362, 30 Soc. Sec. Rep. Serv. 252 (W.D. Va. 1990), related reference, 842 F. Supp. 209, 43 Soc. Sec. Rep. Serv. 574 (W.D. Va. 1994)
Taylor v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶16473A, 1991 WL 335837 (D.S.C. 1991)
Brock v. Secretary of Health and Human Services, 807 F. Supp. 1248, 39 Soc. Sec. Rep. Serv. 622, Unempl. Ins. Rep. (CCH) ¶17266A (S.D. W. Va. 1992)
Webb, o/b/o Webb v. Shalala, Unempl. Ins. Rep. (CCH) ¶14261B, 1994 WL 746586 (W.D. Va. 1994)

Fifth Circuit
Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981)
Dorsey v. Heckler, 702 F.2d 597, 1 Soc. Sec. Rep. Serv. 299 (5th Cir. 1983)
Pate v. Heckler, 777 F.2d 1023, 11 Soc. Sec. Rep. Serv. 285, Unempl. Ins. Rep. (CCH) ¶16546 (5th Cir. 1985)
Bradley v. Bowen, 809 F.2d 1054, 16 Soc. Sec. Rep. Serv. 163, Unempl. Ins. Rep. (CCH) ¶17157 (5th Cir. 1987)
Cieutat v. Bowen, 824 F.2d 348, 18 Soc. Sec. Rep. Serv. 493, Unempl. Ins. Rep. (CCH) ¶17519 (5th Cir. 1987)
Latham v. Shalala, 36 F.3d 482, 45 Soc. Sec. Rep. Serv. 618, Unempl. Ins. Rep. (CCH) ¶14170B (5th Cir. 1994)
Pierre v. Bowen, 1988 WL 104818 (E.D. La. 1988), judgment aff'd, 884 F.2d 799, 27 Soc. Sec. Rep. Serv. 12, Unempl. Ins. Rep. (CCH) ¶14964A (5th Cir. 1989)
Granderson v. Department of Health and Human Services, 1989 WL 33659 (E.D. La. 1989)
Masters v. Secretary of Health and Human Services, 1993 WL 302902 (E.D. La. 1993)
Taylor v. Callahan, 1997 WL 345786 (E.D. La. 1997)

Sixth Circuit
Johnson v. Heckler, 765 F.2d 145 (6th Cir. 1985) (publication and use restricted)
Robertson v. Shalala, 91 F.3d 144 (6th Cir. 1996) (publication and use restricted)[FN4]

Seventh Circuit
Godsey v. Bowen, 832 F.2d 443, 19 Soc. Sec. Rep. Serv. 556, Unempl. Ins. Rep. (CCH) ¶17657 (7th Cir. 1987)
Sears v. Bowen, 840 F.2d 394, 20 Soc. Sec. Rep. Serv. 552, Unempl. Ins. Rep. (CCH) ¶17904 (7th Cir. 1988),
Nelson v. Bowen, 855 F.2d 503, 22 Soc. Sec. Rep. Serv. 685 (7th Cir. 1988), reh'g denied, (Nov. 28, 1988) and related reference, 776 F. Supp. 360, 35 Soc. Sec. Rep. Serv. 484 (N.D. Ill. 1991), related reference, 776 F. Supp. 1265, 35 Soc. Sec. Rep. Serv. 562, Unempl. Ins. Rep. (CCH) ¶16479A (N.D. Ill. 1991)
Wilkerson v. Secretary of Health and Human Services, 996 F.2d 1220 (7th Cir. 1993) (publication and use restricted)
Sanchez v. Bowen, 1988 WL 1432 (N.D. Ill. 1988)
Avalo v. Bowen, 1988 WL 121590 (N.D. Ill. 1988)
Palmore v. Department of Health and Human Services, 1989 WL 152377 (N.D. Ill. 1989)
Ewing v. Sullivan, Unempl. Ins. Rep. (CCH) ¶15268A, 1990 WL 357263 (N.D. Ind. 1990)
Wilson v. Sullivan, 1990 WL 205457 (N.D. Ill. 1990)
Chiaramonte v. Sullivan, 1991 WL 66129 (N.D. Ill. 1991)
Maxwell v. Sullivan, 792 F. Supp. 582, 38 Soc. Sec. Rep. Serv. 14, Unempl. Ins. Rep. (CCH) ¶16870A (N.D. Ill. 1992)
Mills v. Sullivan, 804 F. Supp. 1048, 39 Soc. Sec. Rep. Serv. 396, Unempl. Ins. Rep. (CCH) ¶17261A (N.D. Ill. 1992), related reference, 1993 WL 247972 (N.D. Ill. 1993)
Humphrey v. Shalala, 1993 WL 313053 (N.D. Ill. 1993)
Furmanek v. Shalala, 1994 WL 110194 (N.D. Ill. 1994)
Prak v. Chater, 892 F. Supp. 1081, 48 Soc. Sec. Rep. Serv. 643, Unempl. Ins. Rep. (CCH) ¶15019B (N.D. Ill. 1995)
Sangas v. Shalala, 1995 WL 76862 (N.D. Ill. 1995), decision aff'd, 70 F.3d 117 (7th Cir. 1995)
Haak v. Chater, 1996 WL 131723 (N.D. Ill. 1996)
Jones v. Chater, 1996 WL 390246 (N.D. Ill. 1996)
Tsoutsouris v. Shalala, 977 F. Supp. 899, 54 Soc. Sec. Rep. Serv. 459 (N.D. Ind. 1997)
Moomey v. Apfel, 3 F. Supp. 2d 970, 57 Soc. Sec. Rep. Serv. 268 (C.D. Ill. 1998)
Stubbs v. Apfel, 1998 WL 547107 (N.D. Ill. 1998)

Eighth Circuit
Woolf v. Shalala, 3 F.3d 1210, 42 Soc. Sec. Rep. Serv. 207, Unempl. Ins. Rep. (CCH) ¶17492A (8th Cir. 1993)

Ninth Circuit
Burton v. Heckler, 724 F.2d 1415, 3 Soc. Sec. Rep. Serv. 383 (9th Cir. 1984)
Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 5 Soc. Sec. Rep. Serv. 259, Unempl. Ins. Rep. (CCH) ¶15430 (9th Cir. 1984)
King v. Bowen, 852 F.2d 1289 (9th Cir. 1988)
Guerrero v. Bowen, 865 F.2d 264 (9th Cir. 1988)
Agesyan v. Apfel, 133 F.3d 925 (9th Cir. 1998)[FN5]

Eleventh Circuit
Cherry v. Heckler, 760 F.2d 1186, 9 Soc. Sec. Rep. Serv. 303, Unempl. Ins. Rep. (CCH) ¶16111, 94 A.L.R. Fed. 757 (11th Cir. 1985)
Caulder v. Bowen, 791 F.2d 872, 13 Soc. Sec. Rep. Serv. 397, Unempl. Ins. Rep. (CCH) ¶16830 (11th Cir. 1986)
Milano v. Bowen, 809 F.2d 763, 16 Soc. Sec. Rep. Serv. 158, Unempl. Ins. Rep. (CCH) ¶17159 (11th Cir. 1987)
Falge v. Apfel, 150 F.3d 1320, 57 Soc. Sec. Rep. Serv. 811, Unempl. Ins. Rep. (CCH) ¶16080B (11th Cir. 1998), petition for cert. filed, Unempl. Ins. Rep. (CCH) ¶16080B (U.S. 1998)
Spivey v. Apfel, 133 F. Supp. 2d 1292 (M.D. Fla. 2001)

The court in Borders v. Heckler, 777 F.2d 954, 11 Soc. Sec. Rep. Serv. 276, Unempl. Ins. Rep. (CCH) ¶16657 (4th Cir. 1985), held that the definition of materiality used in the Fourth Circuit for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) was no stricter than that used in other circuits, stating that evidence is material to the extent that the Commissioner's decision might reasonably have been different. The court observed that the Fifth Circuit Court of Appeals in Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981), phrased the standard in terms of a "reasonable possibility" that the Commissioner might have reached a different decision, and in Chaney and Dorsey v. Heckler, 702 F.2d 597, 1 Soc. Sec. Rep. Serv. 299 (5th Cir. 1983), there are references to a "stricter" standard allegedly set forth in King v. Califano, 599 F.2d 597 (4th Cir. 1979). The court noted, however, that the "stricter" standard was derived from a misquotation of the court's words in King; in both cases it was said that the court had held in King that evidence is material if "reasonably likely to have resulted in a different decision." The court stated further that, looking at the words actually used in King, the court could perceive no difference between the standard as expressed there and the standard as expressed by other courts since the standard as applied in the Fourth Circuit appeared "stricter" only if one added to and qualified the words actually used by the court.
Declining to endorse the position taken by the Fourth Circuit in King v. Califano, 599 F.2d 597 (4th Cir. 1979), and the Tenth Circuit in Cagle v. Califano, 638 F.2d 219 (10th Cir. 1981), that evidence to be material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) must be reasonably likely to have resulted in a different decision by the Commissioner, the court in Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981), held that a remand to the Commissioner was justified if there is a reasonable possibility that it would have changed the outcome of the Commissioner's determination. The court observed that the sixth sentence of § 205(g) was amended in 1980 to add the requirement that new evidence be "material," and the requirement was an important one. While the concept of "material" suggests that the new evidence must be relevant and probative, the court observed that not every discovery of new evidence, even if relevant and probative, justifies a remand to the Commissioner, for some evidence is of limited value and insufficient to justify the administrative costs and delay of a new hearing.
comment The court noted that in Williams v. Califano, 590 F.2d 1332 (5th Cir. 1979), a case decided before the 1980 amendment of the sixth sentence of § 205(g), it had been held that the Social Security Act is to be broadly construed and liberally applied, and stated that courts had not hesitated to remand for the taking of additional evidence, on good cause shown, where relevant, probative, and available evidence was either not before the Commissioner or was not explicitly weighed and considered by the Commissioner, although such consideration was necessary to a just determination of claimant's application.
The court in Godsey v. Bowen, 832 F.2d 443, 19 Soc. Sec. Rep. Serv. 556, Unempl. Ins. Rep. (CCH) ¶17657 (7th Cir. 1987), stated that the meaning of materiality for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) had given rise to a pseudo–conflict among the circuits, with the Fourth and Tenth Circuits being said by several other circuits to require a showing similar to that required under F.R.C.P. 60(b)(2) to vacate a judgment on the ground of newly discovered evidence, which has been interpreted as requiring that the new evidence must be "likely to change the outcome," while other circuits have defined "material" in § 405(g) differently, requiring that there be "a reasonable possibility that it [the new evidence] would change the administrative outcome." However, the court stated that, as noticed by the Fourth Circuit in Borders v. Heckler, 777 F.2d 954, 11 Soc. Sec. Rep. Serv. 276, Unempl. Ins. Rep. (CCH) ¶16657 (4th Cir. 1985), the supposed conflict among circuits arose from an erroneous paraphrase by the Fifth Circuit in Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981), of the standard that had been laid down in an earlier Fourth Circuit decision, and the Tenth Circuit decision mentioned in Chaney (Cagle v. Califano, 638 F.2d 219 (10th Cir. 1981)) had merely quoted—correctly—language from that earlier Fourth Circuit decision that is entirely consistent with the "reasonable possibility" standard, so there was in fact,no conflict among the circuits. The Tenth Circuit, like the Fourth Circuit, had always adhered to the "reasonable possibility" standard. The court stated further that it would be a mistake to apply the strict standard used for motions under Rule 60(b)(2), where the movant is trying to upset a final judgment, to motions to remand under § 205(g), since while collateral attacks on civil judgments that have become final are disfavored for obvious reasons, these reasons have only attenuated relevance to the situation where in the course of judicial review of an agency proceeding—the agency's decision not yet having become final—the reviewing court is asked to remand the case to the agency. The court observed that the requirements of good cause and materiality give protection enough to the agency's (and the taxpayer's) interest in administrative finality, without the court having to give "material" a special definition.
comment The court in Gilbert v. Secretary of Health and Human Services, 1995 WL 646328 (N.D. Ind. 1995), stated that evidence is material for purposes of the sixth sentence of § 205(g) if there is a "reasonably probability" that the factfinder would have reached a different conclusion had it known of the additional evidence.
The court in Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 5 Soc. Sec. Rep. Serv. 259, Unempl. Ins. Rep. (CCH) ¶15430 (9th Cir. 1984), stated that the sixth sentence of § 205(g) of the Social Security Act was amended in 1980 to add a materiality requirement and that the purpose was at least in part to limit the court's ability to remand cases for consideration of new evidence, and adopted the standard announced by the Fifth Circuit in Dorsey v. Heckler, 702 F.2d 597, 1 Soc. Sec. Rep. Serv. 299 (5th Cir. 1983), that evidence is sufficiently material to require a remand "only where there is a reasonable possibility that the new evidence would have changed the Commissioner's determination had it been before him," rather than the standard announced by the Fourth and Tenth Circuits that the evidence to justify a remand must be reasonably likely to have resulted in a different decision by the Commissioner. The court stated that the "reasonably likely" standard of the Fourth and Tenth Circuits was reminiscent of the standard under Fed.R.Civ.P. 60(b) under which newly discovered evidence may relieve a party from a final judgment where it is shown that the evidence would have affected the result of the trial. The court noted that the strict standard under Rule 60(b) has been established because Rule 60(b) permits belated attacks on final court judgments, as opposed to § 205(g), which operates in an administrative, not judicial, context, and finality of decisions, specifically the res judicata and collateral estoppel doctrines, are not applied as rigidly to administrative proceedings as they are to judicial proceedings. Accordingly, the court did not believe that the materiality of new evidence should be tested as strictly in the administrative context as in the judicial context, and stated that the Social Security Act is remedial in nature and should be construed liberally.
caution It should be noted that the court in Borders v. Heckler, 777 F.2d 954, 11 Soc. Sec. Rep. Serv. 276, Unempl. Ins. Rep. (CCH) ¶16657 (4th Cir. 1985), made clear that the Fourth Circuit standard was no stricter than that used in the other circuits. The court noted that the perception that the Fourth Circuit had a stricter standard arose from the court in Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981), misquoting the decision in King v. Califano, 599 F.2d 597 (4th Cir. 1979). Furthermore, the view that the Tenth Circuit endorses a stricter standard is based on Cagle v. Califano, 638 F.2d 219 (10th Cir. 1981), which cited King for support.
See Cagle v. Califano, 638 F.2d 219 (10th Cir. 1981), in which the court stated that a remand is proper when a reviewing court concludes that "the Secretary's decision might reasonably have been different had that (new) evidence been before him when his decision was rendered," citing King v. Califano, 599 F.2d 597 (4th Cir. 1979).
comment The Fifth Circuit in Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981), interpreted Cagle as setting forth a definition of materiality harder to meet than the reasonable possibility standard. However, the Fifth Circuit's decision was based on an interpretation of language in King, cited in Cagle, which the Fourth Circuit subsequently held was incorrect in Borders v. Heckler, 777 F.2d 954, 11 Soc. Sec. Rep. Serv. 276, Unempl. Ins. Rep. (CCH) ¶16657 (4th Cir. 1985).

CUMULATIVE SUPPLEMENT

Cases:

New evidence is "material," for purposes of "sentence six remand" in social security disability case, if the ALJ's decision might reasonably have been different were it considered. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Conner v. Barnhart, 443 F. Supp. 2d 131 (D. Mass. 2006).
To be "material," so as to support remand to Commissioner of Social Security Administration by court reviewing denial of application for supplemental security income (SSI) disability benefits, new evidence must be both relevant to claimant's condition during the time period for which benefits were denied and probative; the concept of materiality requires a reasonable possibility that the new evidence would have influenced Commissioner to decide claimant's application differently. Beliveau ex rel. Beliveau v. Apfel, 154 F. Supp. 2d 89 (D. Mass. 2001).
New evidence warranting remand of a social security disability benefits case meets the materiality requirement in a social security disability benefits case if it bears directly and substantially on the matter in dispute and there is a reasonable possibility that the new evidence would have changed the outcome. Cruz v. Commissioner of Social Security, 303 F. Supp. 2d 55 (D.P.R. 2004).
Reviewing court may remand social security case to Commissioner on basis of new evidence if four prerequisites are met: (1) evidence must be relevant to determination of disability at time application was first filed; (2) evidence must be material to extent that Commissioner's decision might reasonably have been different had new evidence been before her; (3) there must be good cause for claimant's failure to submit evidence when claim was before Commissioner; and (4) claimant must make at least general showing of nature of new evidence to reviewing court. Social Security Act § 205(g), as amended, 42 U.S.C.A. § 405(g). Miller v. Barnhart, 64 Fed. Appx. 858 (4th Cir. 2003).
Evidence is material, for purposes of a request, in a social security disability benefits case, for remand on basis of new evidence, if there is a reasonable possibility that the new evidence would have changed the outcome. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Hayes v. Astrue, 488 F. Supp. 2d 560 (W.D. Va. 2007).
For new evidence to be material, as may justify remand of social security disability proceeding based upon new evidence, there must exist the reasonable possibility that the evidence would have changed the outcome of the Social Security Commissioner's determination. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Wheat v. Barnhart, 318 F. Supp. 2d 358 (M.D. La. 2004).
Procedure normally employed when new evidence is discovered during pendency of appeal that may support relief from lower court's judgment, whereby party seeking relief from judgment first files motion with district court and, only after district court indicates that it is willing or likely to grant relief from judgment, will he then file motion for remand with appeals court, also applied on social security disability claimant's appeal from district court's affirmance of decision of Commissioner of Social Security that claimant had vocational qualifications to perform specific jobs in national economy; accordingly, where new evidence proffered by claimant was not so compelling that remand was required as matter of law, claimant would have follow this procedure and first seek determination by district court. Social Security Act, § 405(g), 42 U.S.C.A. § 405(g); 28 U.S.C.A. Fed. Rules Civ. Proc. Rule 60(b) Howard v. Commissioner of Social Sec., 276 F.3d 235 (6th Cir. 2002).
Claimant seeking remand of denial of social security disability benefits based on new evidence is required to demonstrate that there is some reasonable possibility that this new evidence would have changed outcome of the administrative hearing. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Mayes v. Massanari, 276 F.3d 453 (9th Cir. 2001).
For purposes of Social Security disability benefits, to secure a remand for the consideration of new evidence, plaintiff must show that the evidence is material and that good cause existed for the failure to produce the evidence in the prior proceeding; new evidence is material if there is a reasonable possibility that the new evidence would have changed the outcome of the Commissioner of Social Security's determination. 42 U.S.C.A. § 405(g). Kokal v. Massanari, 163 F. Supp. 2d 1122 (N.D. Cal. 2001).
To succeed on her claim that a remand of a social security disability case to the administrative law judge (ALJ) is appropriate, claimant must show that: (1) there is new, noncumulative evidence; (2) the evidence is "material," that is, relevant and probative so there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for the failure to submit the evidence at the administrative level. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Vega v. Commissioner of Social Sec., 265 F.3d 1214 (11th Cir. 2001).
To remand decision of Commissioner of Social Security for additional evidence, claimant must establish that: (1) there is new, noncumulative evidence; (2) evidence is relevant and probative, so that there is reasonable possibility that it would change administrative result; and (3) there is good cause for failure to submit evidence at administrative level. Social Security Act, § 205, 42 U.S.C.A. § 405. Stephen v. Commissioner of Social Sec., 386 F. Supp. 2d 1257 (M.D. Fla. 2005).
To remand under court's "sentence six" authority to remand social security case upon showing of new material evidence, claimant must establish: (1) that there is new, non-cumulative evidence; (2) that the evidence is material—relevant and probative so that there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for failure to submit the evidence at the administrative level; sentence-six remand may be warranted even in the absence of an error by the Commissioner if new, material evidence becomes available to the claimant. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Hurley v. Barnhart, 385 F. Supp. 2d 1245 (M.D. Fla. 2005), aff'd, 2005 WL 2077075 (11th Cir. 2005).
To remand a social security disability benefits case to the Commissioner under sentence six, claimant must establish: (1) that there is new, noncumulative evidence; (2) that the evidence is material—relevant and probative so that there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for failure to submit the evidence at the administrative level. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Burden v. Barnhart, 223 F. Supp. 2d 1263 (M.D. Fla. 2002).
To remand under "sentence six" for consideration of additional evidence in a social security disability case, the claimant must establish that: (1) there is new, noncumulative evidence; (2) the evidence is material, relevant, and probative so that there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for failure to submit the evidence at the administrative level. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Kleja v. Barnhart, 220 F. Supp. 2d 1330 (M.D. Fla. 2002), aff'd (11th Cir. Sept. 11, 2002).
To remand under sentence six of provision of the Social Security Act governing judicial review, claimant must establish: (1) there is new, noncumulative evidence; (2) the evidence is material—relevant and probative so that there is a reasonable possibility that it would change the administrative result; and (3) there is good cause for failure to submit the evidence at the administrative level. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Fontanez ex rel. Fontanez v. Barnhart, 195 F. Supp. 2d 1333 (M.D. Fla. 2002).
To remand social security case upon showing of new material evidence accompanied by showing of good cause for not submitting such evidence in administrative proceeding, claimant must establish that: (1) there is new, non–cumulative evidence; (2) evidence is relevant and probative so that there is reasonable possibility that it would change administrative result; and (3) there is good cause for failure to submit evidence at administrative level. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Greaux v. Apfel, 137 F. Supp. 2d 1308 (M.D. Fla. 2001).

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§ 4. Reasonable probability standard

[Cumulative Supplement]

The courts in the following cases supported the view that there must be a reasonable probability that new evidence will affect the decision of the Commissioner of Social Security for the new evidence to be material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which authorizes district courts to remand to the Commissioner where there is new evidence that is material and good causes exists for the failure to introduce the evidence earlier in the proceeding.
Second Circuit
Estevez v. Apfel, 1998 WL 872410 (S.D.N.Y. 1998)

Sixth Circuit
Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 24 Soc. Sec. Rep. Serv. 262, Unempl. Ins. Rep. (CCH) ¶14481A (6th Cir. 1988)
Hoople v. Secretary of Health and Human Services, 979 F.2d 850 (6th Cir. 1992) (publication and use restricted)
Anderson v. Secretary of Health and Human Services, 43 F.3d 1471 (6th Cir. 1994) (publication and use restricted)
Moore v. Secretary of Health and Human Services, 54 F.3d 777 (6th Cir. 1995)
Ward v. Commissioner, Social Sec., 72 F.3d 131 (6th Cir. 1995) (publication and use restricted)
Handy v. Commissioner of Social Sec., 77 F.3d 482 (6th Cir. 1995) (publication and use restricted) ("reasonably be expected")
Maynard v. Chater, 108 F.3d 1377 (6th Cir. 1997) (publication and use restricted)
Heath v. Commissioner of Social Sec., 110 F.3d 64 (6th Cir. 1997) (publication and use restricted)
Kirves v. Callahan, 113 F.3d 1235 (6th Cir. 1997) (publication and use restricted)
White v. Shalala, 114 F.3d 1190 (6th Cir. 1997) (publication and use restricted)
Roddy v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶15617A, 1990 WL 166565 (N.D. Ohio 1990)
Lofton by Chessor v. Shalala, Unempl. Ins. Rep. (CCH) ¶17736A, 1993 WL 650841 (W.D. Tenn. 1993)
Pha v. Chater, 909 F. Supp. 508, 49 Soc. Sec. Rep. Serv. 839, Unempl. Ins. Rep. (CCH) ¶15215B (N.D. Ohio 1995)

Seventh Circuit
Brock v. Apfel, 1998 WL 808860 (N.D. Ill. 1998)

The court in Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 24 Soc. Sec. Rep. Serv. 262, Unempl. Ins. Rep. (CCH) ¶14481A (6th Cir. 1988), stated that for the claimant to satisfy the materiality requirement to obtain a remand to the Commissioner of Social Security pursuant to § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) the claimant must demonstrate that there is a reasonable probability that the Commissioner would have reached a different disposition of the disability claim if presented with the new evidence, and referred to Carroll v. Califano, 619 F.2d 1157 (6th Cir. 1980), Ward v. Schweiker, 686 F.2d 762 (9th Cir. 1982), and Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981).
comment It is not clear whether the court in Sizemore intended "reasonable probability" to be different from "reasonable possibility," since in Carroll v. Califano, 619 F.2d 1157 (6th Cir. 1980), a pre–1980 amendment case, the court stated that there had to be a reasonable chance the Commissioner would reach a different conclusion to justify remand; in Ward v. Schweiker, 686 F.2d 762 (9th Cir. 1982), the court noted that the Fifth Circuit had adopted the reasonable possibility standard, which was stricter than the pre–1980 amendment requirement that evidence be "relevant and probative," and stated that the court here did not have to choose between the 2 standards since the evidence was not material under either standard; and in Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981), the Fifth Circuit adopted the reasonable possibility standard. The Sixth Circuit previously, in Johnson v. Heckler, 765 F.2d 145 (6th Cir. 1985) (publication and use restricted), had seemingly adopted the reasonable possibility standard.
The court in Pha v. Chater, 909 F. Supp. 508, 49 Soc. Sec. Rep. Serv. 839, Unempl. Ins. Rep. (CCH) ¶15215B (N.D. Ohio 1995), citing Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 24 Soc. Sec. Rep. Serv. 262, Unempl. Ins. Rep. (CCH) ¶14481A (6th Cir. 1988), stated that a party seeking a remand to the Commissioner under § 205(g) must demonstrate that there is a reasonable probability that the Commissioner would have reached a different disposition of the disability claim if presented with the new evidence.

CUMULATIVE SUPPLEMENT

Cases:

When the Appeals Council has considered additional evidence that was not before the ALJ and the Appeals Council has denied review of the ALJ's decision in social security disability case, district court may remand the case to the Commissioner to consider the additional evidence if: (1) the evidence is new and not cumulative of what is already in the record; (2) the evidence is material, that is relevant and probative, and there is a reasonable probability that it would have changed the outcome of the Commissioner's decision; and (3) claimant has demonstrated good cause for not having incorporated the evidence into the record. Sample v. Barnhart, 239 F. Supp. 2d 422 (D. Del. 2002).
To warrant a new evidence remand in a social security disability benefits case, the claimant must show (1) that the evidence is new and not merely cumulative, (2) the evidence is material and there is a reasonable probability that it would have changed the outcome of the Commissioner's determination, (3) the evidence does not concern a later-acquired disability or subsequent deterioration of the previously non-disabling condition, and (4) there is good cause for not including the new evidence in the administrative record. Altomare v. Barnhart, 394 F. Supp. 2d 678 (E.D. Pa. 2005).
Reviewing materiality of new evidence in Social Security disability case to determine whether remand to Commissioner of Social Security is warranted, requires two separate inquiries: (1) whether evidence relates to time period for which disability benefits were denied, and (2) whether there is reasonable probability that new evidence would change outcome of Commissioner's decision. Social Security Act, §§ 1 et seq., 42 U.S.C.A. §§ 301 et seq. Brown v. Barnhart, 285 F. Supp. 2d 919 (S.D. Tex. 2003).
In social security disability case, court could, sua sponte, grant a remand pursuant to sentence six, where district court retains jurisdiction over action pending further development by agency, based on its finding that post-decision material was both new and material; there was a reasonable probability that the Secretary would have reached a different disposition of the disability claim if presented with the new evidence, which indicated that vocational limitations stemming from the claimant's seizure disorder remained even after he stopped drinking. Social Security Act, § 205(g), as amended, U.S.C.A. § 405(g); 20 C.F.R. § 404.1535(b)(1). Street v. Commissioner of Social Security, 390 F. Supp. 2d 630 (E.D. Mich. 2005).
In order for claimant for social security benefits to satisfy burden of proof as to materiality necessary to warrant remand to Commissioner of Social Security, she must demonstrate that there was reasonable probability that Commissioner would have reached different disposition of disability claim if presented with new evidence. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Kienutske v. Barnhart, 375 F. Supp. 2d 556 (E.D. Mich. 2004).
For a district court to order a "sentence six" remand of a claim for social security disability benefits requires that the claimant satisfy his burden of proof as to the materiality of alleged new evidence by demonstrating that there was a reasonable probability that the Commissioner would have reached a different disposition of the disability claim if presented with the new evidence. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Snider v. Commissioner of Social Sec., 328 F. Supp. 2d 703 (E.D. Mich. 2004).
For purposes of "sentence six remand" in social security disability case, additional evidence is considered "new" if that evidence was not in existence or available to claimant at time of administrative proceeding, to meet "good cause" requirement claimant must give valid reason for failing to obtain evidence prior to ALJ's decision, and "materiality" is defined as reasonable probability that ALJ would have rendered a different decision if evidence had been available for consideration. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Cross v. Commissioner of Social Sec., 373 F. Supp. 2d 724 (N.D. Ohio 2005).
To merit a remand pursuant to the sixth sentence of judicial review statute, a social security disability benefits claimant must show that there is new evidence which is material and that there is good cause for failure to incorporate such evidence into the record in a prior proceeding; evidence is "material" if there is a reasonable probability that the Commissioner would have reached a different conclusion had the evidence been considered. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Jens v. Barnhart, 347 F.3d 209 (7th Cir. 2003).
In the context of provision of Social Security Act allowing for remand to permit claimant to present new evidence in support of application for social security benefits, term "materiality" means that there is a reasonable probability that the Commissioner of Social Security would have reached a different conclusion had the evidence been considered. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Felver v. Barnhart, 243 F. Supp. 2d 895 (N.D. Ind. 2003).

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[END OF SUPPLEMENT]


§ 5. Reasonable likelihood standard

[Cumulative Supplement]

The courts in the following cases held that new evidence is material, for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts 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 that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding, when there is a reasonable likelihood that the additional evidence will result in a change of the Commissioner's decision with respect to the matter at issue.
The court in Woolf v. Shalala, 3 F.3d 1210, 42 Soc. Sec. Rep. Serv. 207, Unempl. Ins. Rep. (CCH) ¶17492A (8th Cir. 1993), stated that to be material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) there has to be a reasonable likelihood that the new evidence would have changed the Commissioner's determination, citing Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 7 Soc. Sec. Rep. Serv. 127, Unempl. Ins. Rep. (CCH) ¶15549 (3d Cir. 1984), in which the court held that for new evidence to be material there had to be a reasonable possibility that the new evidence would have changed the Commissioner's determination, and citing Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981), in which the court held to the same effect.
comment It is not clear whether the Eighth Circuit in Woolf intended the "reasonable likelihood" standard to be different from the "reasonable possibility" standard set forth in Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981), or the "reasonable probability" standard set forth in Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 24 Soc. Sec. Rep. Serv. 262, Unempl. Ins. Rep. (CCH) ¶14481A (6th Cir. 1988), since the court cited Szuback, which used a "reasonable likelihood" standard for materiality, and Chaney, which first set forth the "reasonable possibility" standard, which suggests that the court in Woolf may not have intended to set forth a standard more demanding than the reasonable possibility standard. Also employing the Eighth Circuit language that evidence is "material" within the meaning of the sixth sentence of § 205(g) if there is a reasonable likelihood that the evidence would have changed the Comissioner'' determination are: Riley v. Shalala, 18 F.3d 619, 44 Soc. Sec. Rep. Serv. 3, Unempl. Ins. Rep. (CCH) ¶17732A (8th Cir. 1994); Hinchey v. Shalala, 29 F.3d 428, 45 Soc. Sec. Rep. Serv. 16, Unempl. Ins. Rep. (CCH) ¶14001B (8th Cir. 1994); O'Neill v. Shalala, 32 F.3d 571 (8th Cir. 1994); Jones v. Callahan, 122 F.3d 1148, 54 Soc. Sec. Rep. Serv. 104, Unempl. Ins. Rep. (CCH) ¶15771B (8th Cir. 1997); Hanson v. Chater, 895 F. Supp. 1279, 48 Soc. Sec. Rep. Serv. 953, Unempl. Ins. Rep. (CCH) ¶15013B (N.D. Iowa 1995); B.L.D. v. Chater, 1997 WL 102497 (W.D. Mo. 1997).

CUMULATIVE SUPPLEMENT

Cases:

Remand for consideration of new evidence was not warranted in social security disability benefits case, inasmuch as evidence would not be likely to change outcome of claim; evidence did not establish that claimant suffered a severe impairment prior to his last insured date. Wolms v. Barnhart, 71 Fed. Appx. 579 (7th Cir. 2003).
Within section of the Social Security Act authorizing remand where "new and material evidence is adduced that was for good cause not presented during the administrative proceedings," "material evidence" is noncumulative, relevant, and probative of the claimant's condition for the time period for which benefits were denied, and there must be a reasonable likelihood that it would have changed the determination. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Krogmeier v. Barnhart, 294 F.3d 1019 (8th Cir. 2002).

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§ 5.3. Relation back to period on or before prior administrative determination

[Cumulative Supplement]

The following authority considered the appropriateness of remand under the new evidence provision of 42 U.S.C.A. § 405(g) in relation to whether the alleged new medical evidence related back to the period on or before the prior administrative determination.

CUMULATIVE SUPPLEMENT

Cases:

Social security disability claimant was not entitled to remand to the Social Security Commissioner in order present new medical evidence, where such new evidence did not relate back to the period on or before the date of the ALJ's decision denying benefits. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Williams v. Barnhart, 178 Fed. Appx. 785, 110 Soc. Sec. Rep. Serv. 258 (10th Cir. 2006).

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§ 5.5. Discretion of court

[Cumulative Supplement]

It has been held that the decision whether to remand under 42 U.S.C.A. for the taking of new evidence in a Social Security benefits proceeding is within the discretion of the court.

CUMULATIVE SUPPLEMENT

Cases:

District Court is empowered, in a social security disability benefits case, to remand a case to the ALJ for consideration of new evidence upon a showing of good cause by the claimant for the failure to have presented the evidence earlier; such remand can occur without making any substantive ruling as to the correctness of the ALJ's ruling. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Schoofield v. Barnhart, 220 F. Supp. 2d 512 (D. Md. 2002).
New evidence presented on appeal from federal district court's affirmance of Social Security Commissioner's denial of disability benefits, consisting of claimant's death following district court's decision and letter from treating physician stating that claimant had been in poor physical health starting at point following end of contested claim period, did not warrant remand; evidence did not address claimant's condition during period for which benefits were denied. Castillo v. Barnhart, 325 F.3d 550 (5th Cir. 2003).
Alleged new evidence presented by social security disability claimant did not warrant "sentence six" remand, inasmuch as "Continuing Accident & Health Claim Forms" were repetitive of material already in record, note from physician was already part of administrative record, and another "Continuing Accident & Health Claim Form" was not material in that doctor gave no detailed explanation for checking box indicating that claimant could not work. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Thomas v. Barnhart, 54 Fed. Appx. 873 (7th Cir. 2003).
Court of Appeals reviews for abuse of discretion district court's order of remand in Social Security disability benefits case. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Bunnell v. Barnhart, 336 F.3d 1112 (9th Cir. 2003).
Having decided to vacate a decision denying social security disability benefits, the District Court has the discretion to remand the case for further development of the record or for an award benefits. Robinson v. Barnhart, 469 F. Supp. 2d 793 (D. Ariz. 2006).
In social security disability benefits case, remand for consideration of new evidence was not warranted; nothing in submitted report related back to relevant time period. Gonzales v. Barnhart, 54 Fed. Appx. 294 (10th Cir. 2002).
Whether to remand a social security disability benefits case for additional fact-finding or for an immediate award of benefits is within the discretion of the district court. Birkinshaw v. Astrue, 490 F. Supp. 2d 1136 (D. Kan. 2007).
District court had no inherent authority to remand Social Security disability benefits case for development of new evidence, other than in accordance with statutory requirements for "sentence four" or "sentence six" remand. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Krishnan v. Barnhart, 328 F.3d 685 (D.C. Cir. 2003).
The Social Security Act's "good cause" standard for remand of benefits case to Social Security Administration does not necessitate same technical and cogent showing of good cause that is required to justify district court's vacation of judgment or granting of new trial; rather, whether to remand for rehearing is within court's discretion. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Gooden v. Barnhart, 191 F. Supp. 2d 150 (D.D.C. 2002).

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III. REQUESTS FOR REMAND BY APPLICANTS FOR BENEFITS

A. Medical Evidence

1. Newness of Evidence

§ 6[a] Back injuries—Held new

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of back injuries considered, held that the evidence was new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Bomes v. Schweiker, 544 F. Supp. 72 (D. Mass. 1982), held that a physician's diagnosis that an applicant for social security disability benefits based upon pain in his left foot and leg and left–side hemiparesis was suffering from a herniated disc impinging on the spinal column was new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), although the Appeals Council had had before it 2 brief letters from the physician reporting his diagnosis and a subsequent operation, since the Appeals Council did not have the physician's opinion that the herniated disc might have been the cause of plaintiff's previous problems. The record therefore lacked this evidence showing that the plaintiff was "under a disability" for a period of at least 12 months.
The court in McNeil v. Heckler, 577 F. Supp. 212, 4 Soc. Sec. Rep. Serv. 428, Unempl. Ins. Rep. (CCH) ¶15843 (D. Mass. 1983), held that a vocational assessment report from a rehabilitation program and a myelogram revealing a "small midline and right–sided disc herniation at L4–5 space" were new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in the case of an individual who was shot in 1969 and 11 years later stopped working because the pain from the bullet became unbearable. The court stated that, while the Appeals Council considered the vocational assessment report opinion letter, albeit only after it affirmed the decision of the administrative law judge, the Appeals Council could not evaluate what effect the evidence would have on the administrative law judge's overall assessment of the case.
The court in Zurek v. Shalala, 878 F. Supp. 314, 47 Soc. Sec. Rep. Serv. 303, Unempl. Ins. Rep. (CCH) ¶14304 (D.N.H. 1994), held that medical records indicating that the claimant had a "large disc herniation L4–5 left and possible disc fragments first nerve root anomaly on the left recess," which explained the pain the claimant was having in the leg and big toe were new evidence for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the medical reports and evaluations provided a more thorough diagnostic evaluation bearing on the underlying basis of the administrative law judge's final decision (dated September 23, 1993) that the claimant had severe arthralgia of the knees, history of fracture of the right ankle, and obesity. The court concluded that the medical reports and examinations conducted after the administrative law judge's final determination were not cumulative or a reinterpretation of the evidence presented and considered at the administrative hearing and, therefore, were properly classified as new evidence for purposes of the sixth sentence of § 205(g).
The court in Utkus v. Sullivan, 1989 WL 86599 (E.D. Pa. 1989), stated that the fact that the evidence which an applicant for social security disability benefits based upon back problems sought to justify a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) had been presented to the Appeals Council, which had declined to review the case, did not mean that the evidence was not new for purposes of § 205(g), since when the Appeals Council denies review the district court is reviewing the decision of the administrative law judge.
The court in Brock v. Heckler, 612 F. Supp. 1348, 10 Soc. Sec. Rep. Serv. 739, Unempl. Ins. Rep. (CCH) ¶16346 (D.S.C. 1985), held that medical reports indicating that an applicant for social security disability benefits based on pain emanating from the L3–4, 4–5 and S–1 vertebrae underwent lumbar body fusion surgery after the administrative hearing and his physician's statement that the applicant was disabled were new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
comment The court held that the evidence was not material, however, as it did not bear on the condition of the applicant's back at the time the administrative law judge rendered his decision (§ 6[b], infra).
The court in Fritscher v. Shalala, 1994 WL 419901 (E.D. La. 1994), stated that a physician's report dated after the administrative hearing based on examinations made prior to the hearing and discussing the condition of the claimant's back prior to the hearing was new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
comment The court denied remand, however, because the report was not material (§ 6[b], infra).
The court in Briggs v. Schweiker, 703 F.2d 559 (6th Cir. 1982) (publication and use restricted), stated that the medical records of a claimant for social security disability benefits based on a back injury who had his lumbar disc at L4–5 excised after his application was denied were obviously new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since the medical examination and treatment discussed in the record postdated the Commissioner's determination that the applicant was not entitled to disability benefits.
The court in Woods v. Bowen, 1988 WL 247678 (N.D. Ill. 1988), related reference, 778 F. Supp. 976, 35 Soc. Sec. Rep. Serv. 741, Unempl. Ins. Rep. (CCH) ¶16545A (N.D. Ill. 1991), held that a physical capacities evaluation of an applicant for social security disability benefits based on an ulcer and severe back problems, which was prepared after the administrative law judge's decision denying the applicant's claim, was obviously new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because it directly contradicted the administrative law judge's finding that the applicant could perform her past work as a meatpacker and drew into question whether the applicant could even perform sedentary tasks.
The court in Caulder v. Bowen, 791 F.2d 872, 13 Soc. Sec. Rep. Serv. 397, Unempl. Ins. Rep. (CCH) ¶16830 (11th Cir. 1986), held that records of the hospitalization of a claimant for social security disability benefits, consisting of a lumbar myelogram and CT scan of the spine that revealed a block at the L4–5 level and a diagnosis of spinal stenosis indicating an elective lumbar laminectomy with decompression at L3, 4, and 5, and S1, which was performed, and the fact that the procedure did not eliminate the claimant's pain, weakness, or numbness in the legs, were new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court rejected the Commissioner's argument that the evidence was cumulative because the claimant had testified at the administrative hearing about his back problem, since the nature of the new medical evidence was such that it could not reasonably be said to be cumulative of the claimant's lay testimony by a claimant. New objective medical evidence was especially important where the administrative law judge stopped the sequential evaluation of the claimant when he found no severe impairment, since at the hearing the evidence of the claimant's back and leg impairments was inadequate, consisting simply of one doctor's diagnosis contradicted by another, without a proper diagnosis by the latter physician despite his recommendation of further testing. The court stated that the new medical evidence containing the results of the lumbar myelogram and laminectomy was the product of the only comprehensive medical evaluation of a possible cause of the claimant's back and leg complaints and thus was not cumulative.
The court in Smith v. Bowen, 792 F.2d 1547, 14 Soc. Sec. Rep. Serv. 75 (11th Cir. 1986), held, in the case of a woman who sought social security disability benefits on the basis of disabling chronic low back pain resulting from degenerative disc disease and failed surgical back syndrome, that medical records relating to her hospitalization a month after the final administrative decision denying her claim, during which she underwent neurolysis and laminectomy, were new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that the records were not cumulative because they reflected the results of the new surgery.

CUMULATIVE SUPPLEMENT

Cases:

Remand was appropriate, in social security disability benefits case, for consideration of additional spinal studies conducted a few days after claimant's hearing; test results were new objective evidence of claimant's condition, were material to issue of claimant's functional limitations and could reasonably have changed outcome of the case, and were not evidence of a later-acquired disability, and ALJ's refusal to keep record open provided good cause for not presenting the test results to the ALJ. Altomare v. Barnhart, 394 F. Supp. 2d 678 (E.D. Pa. 2005).
Remand was necessary to consider Social Security disability claimant's case in light of new and material evidence consisting of second letter from physician; second letter concluded that claimant was not capable of any type of employment and was not necessarily inconsistent with his prior notes in record. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Kokal v. Massanari, 163 F. Supp. 2d 1122 (N.D. Cal. 2001).
Questionnaire completed by claimant's treating orthopedic surgeon was new and material evidence which required remand of disability and supplement security income (SSI) benefits case; questionnaire did not exist at time of administrative hearing, the new evidence related to time period on or before administrative law judge's (ALJ) decision, and the new evidence was material as it provided more specific opinions about claimant' capabilities and could have changed the outcome. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Lipscomb v. Commissioner of Social Sec., 199 Fed. Appx. 903 (11th Cir. 2006).
Social security disability claimant's newly submitted evidence met the requirements for remand to the administrative law judge (ALJ), where a physician discovered claimant's herniated disc and performed the corrective surgery after the ALJ rendered his decision, and the evidence was material because it contradicted the ALJ's findings and conclusions regarding the severity of claimant's spinal problems. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Vega v. Commissioner of Social Sec., 265 F.3d 1214 (11th Cir. 2001).

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§ 6[b] Back injuries—Held not new

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of back injuries considered, held that the evidence was not new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner on a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 18 Soc. Sec. Rep. Serv. 711, Unempl. Ins. Rep. (CCH) ¶17493 (1st Cir. 1987), held that a report of a physician who was retained to evaluate the claimant's condition, reaching the conclusion that a claimant for social security disability benefits based on low back pain was disabled, was not new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since this report was an ill–conceived effort to shove a square peg into a round hole because the medical record compiled before the administrative law judge was voluminous, detailed, and complex, spanning many years and dealing with an array of ailments. The court observed that the medical report offered no new facts of any relevance, being the result of the retained physician's evaluation of the medical reports that composed the administrative record. The court further stated that the fact that the doctor happened to disagree with the conclusion reached by the administrative law judge did not render the evidence that formed the basis for his opinion any less cumulative. The court observed that if a losing party could vault the "newness" hurdle of § 205(g) merely by retaining an expert to reappraise the evidence and come up with a conclusion different from that reached by the hearing officer the criterion would be robbed of all meaning, as a wide variety of evidence would be new in a sophisticated, enterprising world, where there are often almost as many opinions as there are experts.
The court in Defosse v. Bowen, 670 F. Supp. 1078, 19 Soc. Sec. Rep. Serv. 443, Unempl. Ins. Rep. (CCH) ¶17934 (D. Mass. 1987), held that a physician's undated medical report, discussing an office visit by an applicant for social security disability benefits based on a back injury, in which the claimant complained of persistent back and leg pains and in which the physician concluded that the applicant was totally and permanently disabled from any and all gainful occupations, was not new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since it was essentially the same as that contained in prior physician's reports that were in the record of the administrative hearing.
The court in Lemire v. Shalala, 1994 WL 253557 (D.N.H. 1994), held that medical reports issued in September and October 1993 by a consulting physician, stating that a claimant for social security disability benefits whose claim was denied on April 29, 1993, had been totally disabled since an accident in 1988 due to low back pain and post–traumatic stress disorder were not new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that evidence is new only where the court determines that further evidence is necessary to develop the facts of the case fully, that such evidence is not cumulative, and that consideration of the evidence is essential to a fair hearing. In the instant case, the court observed, the medical reports available to the administrative law judge were extensive, including those of the physician who had been treating the claimant for 5 years, so the fact that the consulting physician viewed the claimant's condition differently than the administrative law judge did not render the evidence that formed the basis for his opinion any less cumulative of what already appeared in the record.
The court, in Guyton v. Apfel, 20 F. Supp. 2d 156, 58 Soc. Sec. Rep. Serv. 845 (D. Mass. 1998), held that an MRI report and an x–ray report revealing information about the claimant's back impairment were not "new" for purposes of sentence six of § 205(g) of the Social Security Act, where neither report revealed information that was different from the records upon which the administrative law judge relied. The court stated that additional evidence is sufficiently "new" only when such evidence is not cumulative and consideration of the evidence is essential to a fair hearing. The court held that consideration of this evidence was not warranted because the additional medical records were essentially the same as the information already before the administrative law judge or merely represented a reinterpretation of information previously submitted.
The court in Ward v. Commissioner, Social Sec., 72 F.3d 131 (6th Cir. 1995), (publication and use restricted), held that the fact that an applicant for social security disability benefits based on a bad back had undergone back surgery was not new evidence for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the administrative law judge was aware that the applicant was planning to have the surgery done at the time that he rendered his decision denying benefits.
In Moomey v. Apfel, 3 F. Supp. 2d 970, 57 Soc. Sec. Rep. Serv. 268 (C.D. Ill. 1998), the court summarily stated that a letter subsequently submitted by the applicant stating that the applicant was not to work until further notice was not new for purposes of § 205(g) of the Social Security Act.
The court in Heimerman v. Chater, 939 F. Supp. 832, 51 Soc. Sec. Rep. Serv. 968, Unempl. Ins. Rep. (CCH) ¶15659B (D. Kan. 1996), stated that, even if the claimant for social security disability benefits based on an injured back had been able to show for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) that there was good cause for not having obtained the reports in question before the administrative law judge's ruling, the claimant had failed to show that the reports presented new evidence that was not merely cumulative of what was already in the record, since the medical report duplicated medical evidence in the file and a vocational report duplicated a similar report in the file.

CUMULATIVE SUPPLEMENT

Cases:

MRI results, which had not been in administrative record when Appeals Council decided to deny supplemental security income (SSI), were not grounds for remand, where ALJ had already determined based upon administrative record that claimant suffered from herniated disc, such that MRI was not new and would not influence ALJ to decide case differently. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Law v. Barnhart, 439 F. Supp. 2d 296 (S.D. N.Y. 2006).
Claimant was not entitled to remand to permit him to introduce evidence in disability insurance proceedings that he was required to occasionally lie down in course of eight–hour period, where claimant failed to submit evidence during administrative proceedings, or to demonstrate that evidence was new and material. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Leffel v. Commissioner of Social Sec., 30 Fed. Appx. 459 (6th Cir. 2002).
Even assuming that claimant's back problems were in dispute at social security disability benefits hearing, claimant did not show good cause for failure to introduce medical evidence of herniated discs at hearing, and did not qualify for having case remanded based on this alleged "new" evidence; though claimant mentioned that her back hurt, she did not seek diagnosis of, or treatment for, her back problems prior to hearing, and at hearing, claimant chiefly complained about other medical problems. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Mayes v. Massanari, 276 F.3d 453 (9th Cir. 2001).

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§ 7[a] Other orthopedic injuries—Held new

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of orthopedic problems other than back problems considered, held that the evidence was new for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Villanueva v. Chater, 1996 WL 471195 (S.D.N.Y. 1996), held that the claimant, an applicant for social security disability benefits based on an injury to his left hand that prevented him from opening it, was entitled to a remand of his case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), where the administrative law judge failed to make any attempt at the time of the hearing to obtain medical records identified by the claimant, so the judge did not fulfill the judge's heightened obligation to assist a pro se claimant in developing the record, and thus the medical records were new evidence, not merely cumulative.
The court in Moore v. Secretary of Health and Human Services, 54 F.3d 777 (6th Cir. 1995) (publication and use restricted), held that evidence that an applicant for social security disability benefits, whose original claim based on shrapnel wounds to his left arm had been granted, had shrapnel in his right hip constituted new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court in Czubala v. Heckler, 574 F. Supp. 890, 3 Soc. Sec. Rep. Serv. 651, Unempl. Ins. Rep. (CCH) ¶15321 (N.D. Ind. 1983), held that evidence of subsequent hospitalizations of an applicant for social security disability benefits based upon paralysis of the left arm resulting from a stab wound was new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the hospitalizations occurred after the hearing, evidence of them did not exist and therefore could not have been presented at the hearing, and the evidence was not repetitive or cumulative because it reported totally new and independent events.
The court in Hyde v. Bowen, 823 F.2d 456, 18 Soc. Sec. Rep. Serv. 417, Unempl. Ins. Rep. (CCH) ¶17518 (11th Cir. 1987), held that medical evidence, in the form of a letter from a claimant's physician stating that, based on his reevaluation of the claimant, an applicant for social security disability benefits, the claimant's allegations of significant pain in his hip and leg were consistent with the objective medical evidence—specifically that the applicant's prosthetic device might be loose—was new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. 4 405(g)). The court stated that the evidence was new because it was not previously before the administrative law judge and "noncumulative" because it provided objective medical evidence in support of the applicant's allegations of severe pain, which the administrative law judge had previously had found lacking.

CUMULATIVE SUPPLEMENT

Cases:

District Court would remand case to Commissioner for Social Security, following Commissioner's denial of disability benefits to claimant who had congenital bone disease of both hips, since record was inadequately developed and appeared to reflect some conflicting evidence. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Crespo v. Barnhart, 293 F. Supp. 2d 321 (S.D. N.Y. 2003).

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§ 7[b] Other orthopedic injuries—Held not new

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of orthopedic problems other than back problems considered, held that the evidence was not new for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Gonzalez v. Chater, 1996 WL 442798 (S.D.N.Y. 1996), held that a person whose disability payments were terminated by an administrative law judge had not established that treatment records in which the doctor reported a medial meniscus tear of the left knee and severe quad atrophy of both knees, treatment records in which the doctor concluded that the person had a left knee disability and suffered severe pain in his left knee, and a residual functional capacity evaluation were not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the evidence on its face seemed cumulative with evidence in the record.
See Nickerson v. Secretary of Health & Human Services, 894 F. Supp. 279, 48 Soc. Sec. Rep. Serv. 769, Unempl. Ins. Rep. (CCH) ¶15006B (E.D. Tex. 1995), in which the court stated that it was questionable whether evidence in the form of a discharge summary from a physician diagnosing a claimant for social security disability benefits based on lower back pain as having "avascular necrosis of right hip," which involves morphological changes indicative of cell death and is caused by progressive degradation of enzymes, due to deficient blood supply[FN6] after the claimant underwent hip replacement surgery in 1994, constituted new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). Although such a diagnosis did not appear to be listed within the medical records submitted in connection with the hearing before the administrative law judge, the discharge summary stated that the claimant had a long history of avascular necrosis and "has had difficulty ambulating for years," and such comments indicated the claimant's ability to present evidence on the condition prior to the administrative hearing.
The court in Wyatt v. Secretary of Health and Human Services, 12 F.3d 216 (6th Cir. 1993) (publication and use restricted), held that an applicant for social security benefits based upon frequent pain in several parts of her body, a weak grip, and shortness of breath had not established that evidence that she wanted the Commissioner of Social Security to hear upon remand was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that the report that the applicant wanted to have considered would not have altered the court's conclusion that the district court's decision was valid, since at the hearing the claimant and her attorney provided an earlier report of carpal tunnel syndrome by the same physician and discussed that diagnosis before the administrative law judge, so the report contained much the same data as the earlier report absent the statement by the physician that the claimant could not use power tools, engage in heavy lifting, or perform activities that demanded continual flexing of her wrists; the record indicated that, even absent such a statement, the administrative law judge presumed such activities could not be performed by the claimant.
The court in Tolbert v. Sullivan, 966 F.2d 1459 (8th Cir. 1992), held that additional medical evidence concerning an applicant for social security disability benefits who fell from a crane and sustained multiple injuries, including a serious fracture of a leg and of certain bones in the ankle or foot, consisting of a letter from a doctor stating that the applicant was unable to be "gainfully employed at this time" and objective evidence supplied at the court's request that merely reiterated the applicant's previously established injuries and condition, was cumulative and therefore did not justify remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
In a case involving an application for social security benefits by a woman based on her hip replacements, accompanying pain, and her depressions, the court in Stella v. Sullivan, 1991 WL 12826 (D. Kan. 1991), stated that the applicant's affidavit was not new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)), since it simply reiterated generally her testimony before the administrative law judge that she experienced pain and discomfort prior to June, 1983.

CUMULATIVE SUPPLEMENT

Cases:

Remand to the Commissioner of Social Security for consideration of new report from claimant's orthopedic surgeon which allegedly indicated that claimant had disabling impairment equivalent to medical listing was not warranted, where report was rendered more than one year after ALJ issued decision on claimant's application for social security disability, there was no evidence that report related back to her condition at time of hearing, and fact that claimant did not have referral to orthopedic surgeon at time of hearing did not demonstrate good cause for her failure to submit report. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Jeffries v. Commissioner of Social Security, 23 Fed. Appx. 351 (6th Cir. 2001).

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§ 8[a] Psychiatric illnesses—Held new

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of psychiatric problems considered, held that such evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in MacKinnon v. Bowen, Unempl. Ins. Rep. (CCH) ¶14639A, 1989 WL 270105 (D. Mass. 1989), held that a psychiatrist's report that the depression of an applicant for social security disability benefits based on various physical ailments and depression due to gender dysphoria arising out of her condition as a transsexual required treatment by medication and continued to interfere markedly with her ability to work was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court in Santiago v. Shalala, Unempl. Ins. Rep. (CCH) ¶14640B, 1995 WL 224622 (S.D.N.Y. 1995), judgment vacated on other grounds, 1995 WL 358793 (S.D.N.Y. 1995), held that a post–administrative–hearing diagnosis of the claimant as suffering from severe depression was new evidence for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), observing that the Commissioner did not contest the point.
In Morgan on Behalf of Morgan v. Chater, 913 F. Supp. 184, 50 Soc. Sec. Rep. Serv. 168, Unempl. Ins. Rep. (CCH) ¶15163B (W.D.N.Y. 1996), the court held that reports on the behavior of a child admitted to a psychiatric center dated September 6 and 14, 1994, when the hearing before the administrative law judge was held on April 7, 1994, and the Appeals Council denied the plaintiff's request for review on September 14, 1994, were new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The first report was made when the child was admitted to the facility and contained a history of the child's illness—attention deficit disorder—noting a pattern of fire–setting behavior when angry during the prior year and violence toward animals, while the second report, a psychological evaluation performed a few days later, found a "long history of attention deficit … [,] history of dangerous fire setting behavior as well as … oppositional tendencies." The court stated that the reports provided evidence of additional maladaptive behaviors that were not reported earlier, and much of the reported behavior had occurred throughout the prior year or so.
In Borrero v. Callahan, 2 F. Supp. 2d 235, 57 Soc. Sec. Rep. Serv. 322 (D. Conn. 1998), the court held that a mental health evaluation and a neuropsychological assessment, sought to be added to the record, were new evidence for purposes of sentence six of § 205(g) of the Social Security Act because the record before the administrative law judge contained no evidence of mental impairment.
The court in Dorsey v. Heckler, 702 F.2d 597, 1 Soc. Sec. Rep. Serv. 299 (5th Cir. 1983), implicitly held that reports by the claimant's treating physicians in connection with the claimant's hospitalization for hallucinations, anxiety, and depression around the time that the Appeals Council denied review of her claim for disability benefits based on various physical problems and her "chronic anxiety" were new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), where one report stated that the claimant was totally disabled and at home under his care, and a report by another physician stated that the claimant was an alcoholic and "almost certainly had delirium tremens, or hallucinations recently and still may have them," since the reports bore directly on the claimant's claim of mental impairment, evidence of which was absent from the administrative proceedings.
The court in Haney v. Shalala, 1994 WL 24232 (E.D. La. 1994), judgment aff'd, 1994 WL 247207 (E.D. La. 1994), held that a psychiatric evaluation of a claimant for social security disability benefits, which was performed after the administrative law judge's denial of the claimant's application for disability, was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the evaluation was prepared after the hearing.
comment The court denied remand, however, because the report was not material (§ 6[f], infra).
The court in Sears v. Bowen, 840 F.2d 394, 20 Soc. Sec. Rep. Serv. 552, Unempl. Ins. Rep. (CCH) ¶17904 (7th Cir. 1988), held that a medical report stating that a claimant for disability benefits on the basis of glaucoma had a number of severe psychiatric problems was new evidence for purposes of remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)), since the report was not in existence at the time of the administrative proceedings.
In Brown v. Sullivan, 1990 WL 103605 (N.D. Ill. 1990), the court held that a psychological evaluation of an applicant for social security disability benefits based upon back problems, foot problems, and blackouts was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
comment The court held the report was not material, however, as it did not relate to the applicant's condition 3 years earlier at the time the administrative law judge issued his decision (§ 6[f], infra).
The court in Creighton v. Sullivan, 798 F. Supp. 1359, 38 Soc. Sec. Rep. Serv. 691, Unempl. Ins. Rep. (CCH) ¶17232A (N.D. Ind. 1992), held, in the case of an applicant for social security disability benefits who originally sought benefits based upon back problems and asthma, that a psychiatric report indicating that the applicant was affected with a psychiatric disease known as somatoform pain disorder was new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because it was not in existence at the time of the administrative proceedings.
The court in Wilson v. Sullivan, 1989 WL 134925 (D. Kan. 1989), held that a diagnosis by a psychiatrist, who examined an applicant for social security disability benefits based upon arthritis, obesity, reduced vision, and diabetes mellitus 3 months after the applicant's claim was denied, that the applicant had chronic depression controllable with medication, a low level of intelligence, and a personality disorder characterized by pathological dependence, and that because of the latter 2 was a person who functioned at an extremely low level and was extremely limited in her ability to carry out daily activities, to maintain social functioning, and to concentrate upon her tasks in the workplace was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. 4 405(g)), because the diagnosis did not exist prior to the administrative hearing.

CUMULATIVE SUPPLEMENT

Cases:

Good cause existed for claimant's failure to present proffered new evidence at hearing in social security disability benefits case, warranting remand for further proceedings; claimant's new evidence, consisting of new diagnoses of post-traumatic stress disorder (PTSD), mild degenerative disease of the knees, and intractable dysfunctional uterine bleeding, was based on reports not generated until after the hearing. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Brewerton v. Barnhart, 235 F.R.D. 574 (W.D. N.Y. 2006).

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§ 8[b] Psychiatric illnesses—Held not new

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of psychiatric problems considered, held that such evidence was not new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Stewart v. Chater, 1996 WL 534832 (E.D.N.Y. 1996), held that, while evidence of additional seizures and disruptive classroom behavior on the part of a claimant for social security benefits might be relevant, it was not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since similar information was already part of the administrative record. Prior to the hearing, in her original request for reconsideration of the denial of child disability benefits, the claimant's mother indicated that the claimant had suffered seizures on May 31, 1993, June 18, 1993, and August 4, 1993. In addition, in a disability questionnaire filled out by the mother contained in the record, she described several of the applicant's adjustment problems, stating that he was blameful of others, that he got upset quickly, that he did poorly in school, that his grades were steadily dropping, and that he was very aggressive with others. Accordingly, the court found the proffered evidence to be cumulative and not to require a remand.
In Estevez v. Apfel, 1998 WL 872410 (S.D.N.Y. 1998), the court held that a letter dated 2 years after the administrative hearing, indicating that the plaintiff was diagnosed as a schizoaffective disorder– bipolar type, was not new evidence. The court stated that the letter did not suggest that it applied to the time period at issue on appeal. Consequently, the court concluded that the plaintiff provided no new information relevant to the time period for which benefits were denied, and therefore the evidence did not warrant a reversal or remand.
The court in Perkins v. Chater, 107 F.3d 1290, 52 Soc. Sec. Rep. Serv. 784, Unempl. Ins. Rep. (CCH) ¶15692B (7th Cir. 1997), held that a psychiatric evaluation of a claimant whose claim for disability benefits on grounds that he was disabled due to alcoholism, high blood pressure, heart trouble, and poor vision benefits had been denied did not constitute new evidence for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that the psychiatrist based his conclusion entirely on evidence that had long been available, was "available" at the time of the earlier proceeding, and did not qualify under sentence six as new.
The court in Chandler v. Secretary of Health and Human Services, 722 F.2d 369, 3 Soc. Sec. Rep. Serv. 272 (8th Cir. 1983), held that 2 letters written by a psychiatrist concerning the claimant's continued neurosis stemming from his injury and difficulties with his prior employer were not new for purposes of remand pursuant to § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since they were cumulative of the psychological evidence considered by the administrative law judge, who found that the claimant suffered from a neurotic or phobic reaction to the injury and to subsequent work–related events but that this did not prevent him from performing substantial gainful activity.

CUMULATIVE SUPPLEMENT

Cases:

District court did not have to remand social security disability and supplemental security income benefits case to agency for consideration of new evidence relating to applicant's hospitalization after date of ALJ's denial of benefits, despite claim that evidence would show second diagnosis of multiple personality disorder, because hospitalization was not probative of applicant's condition during time period for which she sought benefits. 20 C.F.R. §§ 404.620, 416.330. Estes v. Barnhart, 275 F.3d 722 (8th Cir. 2002).
Remand to Appeals Council for consideration of additional medical evidence that was submitted by social security disability claimant following its adverse ruling was not warranted, absent a showing of good cause for the failure to incorporate the new evidence into the agency proceeding. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Miller v. Barnhart, 194 Fed. Appx. 519 (10th Cir. 2006).
Supplemental security income (SSI) benefits claimant did not show that remand was necessary under statute providing that court may remand case to Commissioner of Social Security for further action and it may order additional evidence to be taken, but only upon showing that there is new evidence which is material; to extent that evidence addressed claimant's history of depression and anger problems, it was cumulative, and to extent that evidence might have shown that problem was escalating, evidence did not necessarily relate to time period on or before date of administrative law judge's (ALJ) decision, and claimant failed to show a reasonable possibility that outcome would have been different had ALJ considered evidence. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). McCloud v. Barnhart, 166 Fed. Appx. 410, 108 Soc. Sec. Rep. Serv. 398 (11th Cir. 2006).

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§ 9[a] Neurological injuries—Held new

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of neurological injury considered, held that the evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Flanders v. Chater, Unempl. Ins. Rep. (CCH) ¶15040B, 1995 WL 608287 (S.D.N.Y. 1995), related reference, 1995 WL 672457 (S.D.N.Y. 1995), held that a neurologist's report prepared more than a year after the administrative hearing, stating that the claimant's uncontrolled convulsive disorder met or equaled one of the Commissioner's listed impairments, that the claimant was unable to travel alone by bus or subway on a daily basis and had to lie down during the day due to seizures, and that none of the anti–convulsive medications the claimant had taken had controlled her epilepsy, and another report prepared at the same time by the claimant's treating orthopedist finding that severe osteoarthritis of the claimant's knees and hips prevented her from sitting more than 2 hours continuously or 4 hours in an 8–hour period and opining that the claimant could not stand continuously more than 5 to 10 minutes and could only occasionally carry 5 to 10 pounds were new for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the report from the treating orthopedist was the only such report, as was the report of the treating neurologist. The court noted that before the treating neurologist's report the record consisted only of the claimant's own testimony as to the frequency of her seizures, while 2 complex partial seizures were disclosed by an intensive video EEG.
The court in Hawkins for Reilly v. Heckler, 631 F. Supp. 711, 13 Soc. Sec. Rep. Serv. 616, Unempl. Ins. Rep. (CCH) ¶16867 (D.N.J. 1985), held new, for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), recently obtained medical evidence in the form of a psychiatrist's reports that an applicant for child insurance benefits had apparently sustained a birth injury causing a syndrome either similar to or consistent with cerebral palsy, probably due to a lack of oxygen, and that the applicant could not hold the simplest of jobs at the then present time or any time during the prior 2 decades, as well as a psychologist's report stating that the applicant was disabled long before her 22nd birthday and had never been able to adequately handle any sort of competitive job with criteria for output or reliability.

CUMULATIVE SUPPLEMENT

Cases:

Neuropsychological report, based on a test performed a year after claimant's hearing in his social security disability benefits case, contained a new diagnosis, information, and test results that were not taken into account by the ALJ, and was thus "new and material," requiring remand for further consideration of the evidence; report constituted the first objective evidence documenting a closed head injury that included cognitive deficits, diagnosed dementia, and confirmed impairments in areas not previously discussed by the treating doctors, and there was a reasonable probability that the new evidence would lead to a different determination regarding claimant's functional limitations. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Snider v. Commissioner of Social Sec., 328 F. Supp. 2d 703 (E.D. Mich. 2004).

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§ 9[b] Neurological injuries—Held not new

[Cumulative Supplement]

The court in the following case, in which an applicant for childhood disability supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of neurological injury considered, held that the evidence was not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Stewart v. Chater, 1996 WL 534832 (E.D.N.Y. 1996), the court held that, while evidence of additional seizures and disruptive classroom behavior on the part of a claimant for childhood disability supplemental security income benefits might be relevant, it was not new evidence for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since similar information was already part of the administrative record.

CUMULATIVE SUPPLEMENT

Cases:

Deposition testimony of neurologist was neither new nor material in that the import of what he stated in his deposition was contained in earlier medical reports, submitted in the case to the Appeals Council, and, therefore, claimant was not entitled to remand of social security disability case for reconsideration; furthermore, while evaluation conducted by neuropsychologist was new because it related to testing performed approximately three years after the ALJ's final decision, it was not sufficiently relevant or material to claim for disability benefits to warrant a remand for reconsideration. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Young v. Barnhart, 284 F. Supp. 2d 343 (W.D. N.C. 2003).

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§ 10[a] Low mental functioning—Held new

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of low mental functioning considered, held that the evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Roe v. Shalala, 1995 WL 27530 (N.D. Cal. 1995), in the case of a claimant for social security disability benefits, who sought social security supplemental security income benefits due to hypertension, asthma, hypothyroidism, and partial right eye blindness and whose claim was denied by an administrative law judge based upon a finding that the claimant was not disabled and not precluded by medical impairments from doing past relevant work, held that a neuropsychological evaluation, concluding that the claimant was disabled from working due to mental slowness, difficulty processing information of any complexity whatsoever, lack of ability to sustain attention over time, and memory problems and that the patient's disability would last at least 1 year, was undeniably new for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since it came into existence after the Appeals Council declined to review the denial of the claimant's application. The court cited the Supreme Court's decision in Sullivan v. Finkelstein, 496 U.S. 617, 110 S. Ct. 2658, 110 L. Ed. 2d 563, 30 Soc. Sec. Rep. Serv. 118, Unempl. Ins. Rep. (CCH) ¶15444A (1990), on remand on other grounds to, 924 F.2d 483, 32 Soc. Sec. Rep. Serv. 276, Unempl. Ins. Rep. (CCH) ¶15889A (3d Cir. 1991), for the proposition that new evidence is evidence that was "not in existence or available to the claimant at the time of the administrative proceeding."
The court in Williams v. Sullivan, 1989 WL 151920 (D. Kan. 1989), amendment denied, 1990 WL 26029 (D. Kan. 1990), held that reports by a licensed psychologist and a board–certified vocational expert, that an applicant for social security disability benefits, who had been a foreign car mechanic and who sought disability benefits due to hip and lower back pain and subsequently had his entire left hip replaced, was functionally illiterate and could not obtain employment that required writing simple sentences or performing simple mathematical equations, was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. 4 405(g)), since it was prepared after the administrative law judge's decision denying the applicant's claim for benefits.
The court in Wright v. Heckler, 734 F.2d 696, 5 Soc. Sec. Rep. Serv. 213, Unempl. Ins. Rep. (CCH) ¶15364 (11th Cir. 1984), implicitly held that a psychiatric evaluation indicating that a claimant for social security disability benefits had an IQ between 65 and 68, which placed him in the mentally retarded–educable and moderately to severely emotionally disturbed classifications, was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).

CUMULATIVE SUPPLEMENT

Cases:

New evidence showing that claimant was enrolled in special education classes in school and was considered to be mildly mentally handicapped was "material," supporting remand for new determination of whether claimant was entitled to disability insurance benefits (DIB) and supplemental security income (SSI) benefits, inasmuch as administrative law judge (ALJ) afforded considerable weight to absence of any evidence indicating that claimant was enrolled in special education classes in school and discussed fact in detail when considering claimant's intellectual functioning and credibility, and new evidence revealed that claimant was considered mildly mentally handicapped, and possibly mentally retarded, before age 22 and supported his credibility at least in part. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g); 20 C.F.R. Part 404, Subpart P, App. 1, § 12.05. Felver v. Barnhart, 243 F. Supp. 2d 895 (N.D. Ind. 2003).

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§ 10[b] Low mental functioning—Held not new

[Cumulative Supplement]

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of low mental functioning considered, held that the evidence was not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Terrell v. Shalala, 1994 WL 386425 (N.D. Ill. 1994), related reference, 1995 WL 307157 (N.D. Ill. 1995), held that a remand for the purposes of considering Chicago Public School IQ test scores, which arguably established that the claimant was mentally retarded and met the criteria for equivalency to a listing under 20 C.F.R. Pt. 404, Supt. P, App. 1, S 12.05, was not a remand pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), because the evidence was not new since it was in existence at the time of the administrative hearing. Although the claimant contended that a more appropriate definition of new evidence was that the evidence not be in existence or available at the time of the administrative proceeding, the court stated that to accept the claimant's argument would expand the availability of sentence–six remands beyond the limits set forth in Shalala v. Schaefer, 509 U.S. 292, 113 S. Ct. 2625, 125 L. Ed. 2d 239, 41 Soc. Sec. Rep. Serv. 334, Unempl. Ins. Rep. (CCH) ¶17290A, 26 Fed. R. Serv. 3d (LCP) 1438 (1993).

CUMULATIVE SUPPLEMENT

Cases:

Claimant of social security disability benefits failed to establish that alleged new evidence of results of intelligence test taken after denial of claim was new or material, and thus claimant was not entitled to remand; conclusory claim that intelligence test taken after denial provided evidence that she was disabled was largely cumulative of evidence and opinions already in record, which contained testing results from three different physicians. Social Security Act, § 205, 42 U.S.C.A. § 405. Longworth v. Commissioner Social Security Admin., 402 F.3d 591, 2005 FED App. 0157P (6th Cir. 2005).
Additional medical evidence in social security disability benefits case, consisting of a physician's report indicating that claimant might be mildly mentally retarded, which was presented to the Appeals Council after the hearing before the ALJ, did not warrant remand, even though the evidence was non-cumulative in that it was the only evidence indicating that claimant met the criteria for mental retardation; evidence was not new, inasmuch as it was not created after the hearing, and claimant did not establish good cause for failing to submit it to the ALJ. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Butler v. Barnhart, 347 F. Supp. 2d 1116 (M.D. Ala. 2003).

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§ 11[a] Heart disease—Held new

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of heart problems considered, held that such evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Starkweather v. Shalala, Unempl. Ins. Rep. (CCH) ¶14533B, 1995 WL 85355 (D.N.H. 1995), stated that there was no dispute that evidence of 3 hospitalizations of the claimant for heart–related problems after the denial of the claimant's application for social security disability benefits based on a heart condition was new for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the records concerned events that occurred after the administrative law judge rendered a decision on August 23, 1993.
The court in Travis v. Sullivan, 985 F.2d 919, 40 Soc. Sec. Rep. Serv. 106, Unempl. Ins. Rep. (CCH) ¶17257A (7th Cir. 1993), stated that 3 additional medical reports made after the claimant's application for social security disability benefits was denied—a Holter Monitoring report; an exercise stress test; and an echocardiographic report—constituted new evidence for purposes of remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
See Haak v. Chater, 1996 WL 131723 (N.D. Ill. 1996), in which the court held that a medical report submitted after the administrative law judge's decision but prior to the decision of the Appeals Council was new evidence for purposes of 29 C.F.R. § 404.970(b) in the case of a claimant whose claim for social security disability benefits had been denied on the grounds that, although the claimant had a history of heart problems, there was no medical evidence that his heart problems existed before December 31, 1988, the date that the claimant was last eligible for benefits. The court stated that new evidence is "evidence not in existence or available to the claimant at the time of the administrative proceeding that might have changed the outcome of that proceeding," citing Sullivan v. Finkelstein, 496 U.S. 617, 110 S. Ct. 2658, 110 L. Ed. 2d 563, 30 Soc. Sec. Rep. Serv. 118, Unempl. Ins. Rep. (CCH) ¶15444A (1990), on remand on other grounds to, 924 F.2d 483, 32 Soc. Sec. Rep. Serv. 276, Unempl. Ins. Rep. (CCH) ¶15889A (3d Cir. 1991). While the Commissioner argued that Sample v. Shalala, 999 F.2d 1138, 41 Soc. Sec. Rep. Serv. 588, Unempl. Ins. Rep. (CCH) ¶17420A (7th Cir. 1993), on remand on other grounds to, 1994 WL 66144 (N.D. Ill. 1994), stood for the proposition that a doctor's analysis that is based on information that was part of the administrative record and available prior to the administrative law judge's decision is not fairly characterized as "new," the court stated that such a conclusion was dicta in Sample, which the court was not required to follow, and noted that the Supreme Court's decision in Sullivan addressing the same issue does not limit new evidence to that which is based on subsequently discovered information. The court emphasized that the report dealt with the main issue in this case—the onset of the claimant's disability—and was the only reasoned medical opinion in the claimant's file on this issue.
The court in Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 5 Soc. Sec. Rep. Serv. 259, Unempl. Ins. Rep. (CCH) ¶15430 (9th Cir. 1984), implicitly held that a doctor's report stating that, based on 1971–72 and 1979–80 medical tests, the claimant was totally disabled from employment in 1975, the date on which the claimant had to be disabled to obtain social security disability benefits, was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. 4 405(g)). The claimant had offered before the administrative law judge a 1980 pulmonary function test as evidence of his condition in 1975, but the administrative law judge, after taking testimony from an agency medical advisor, concluded that the claimant had produced no reliable evidence that he was disabled as of 1975, as the medical advisor testified that it was impossible to determine the level of pulmonary severity based upon the medical evidence of record. The claimant obtained the doctor's report offered as new evidence after the administrative law judge's decision.
The court in Jackson v. Sullivan, 1990 WL 171015 (D. Kan. 1990), held that records of the hospitalization of an applicant for social security disability benefits based on hypertensive cardiovascular disease with a history of a cerebrovascular accident with left hemiplegia and congestive cardiomyopathy, 2 months after the administrative law judge denied the applicant's claim, were new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the records of the applicant's hospitalization in October, 1988, did not exist at the time of the administrative law judge's decision.
The court in Jackson v. Sullivan, 1991 WL 12992 (D. Kan. 1991), implicitly held that a letter from her treating physician diagnosing an applicant for social security disability benefits, who was terminated from her employment due to her inability to perform her duties a cleaner, as having "prinzmetal angina" and an opinion that the applicant was not able to do even minimal sedentary work because of her unstable angina were new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. 4 405(g)) apparently on the basis that the applicant's condition had deteriorated since the hearing before the administrative law judge.
In Cannon v. Bowen, 858 F.2d 1541, 23 Soc. Sec. Rep. Serv. 324, Unempl. Ins. Rep. (CCH) ¶14253A (11th Cir. 1988), the court held that medical records relating to a 17–day hospitalization of a claimant for social security disability benefits due to chest pains and high blood pressure, which stated that the claimant could not return to gainful employment for an indefinite period of time, that the claimant could stand and walk less than 6 hours in an eight–hour workday, could only lift and carry 5 pounds, and could not push or pull leg or arm controls, that these limitations probably existed from May 1985, and that the claimant had Class III cardiac disease that resulted in marked limitation of physical activity, as well as a letter from a vocational expert stating that the claimant was unable to physically meet the requirements of sedentary or light work, were clearly new, noncumulative evidence for purpose of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), because they included an opinion of total disability from a treating physician and a vocational expert while no similar evidence was introduced in the administrative record.

§ 11[b] Heart disease—Held not new

[Cumulative Supplement]

The courts in the following cases, in which an applicant for social security disability sought remand to the Commissioner of Social Security to have evidence of heart problems considered, held that such evidence was not new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Smith v. Bowen, 664 F. Supp. 1165, 18 Soc. Sec. Rep. Serv. 836, Unempl. Ins. Rep. (CCH) ¶17661 (N.D. Ill. 1987), held that a letter from the applicant's physician, written after the denial of the applicant's claim for benefits, which stated that the applicant's pains were mostly pleuritic and anginal, did not justify remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since it was the same as a letter that appeared in the record except for the addition of language that in the doctor's opinion the applicant's condition in December 31, 1984, was related to his present condition. The bulk of the letter therefore was not new at all, and the physician's statement that the applicant's condition at December 31, 1984, "was related" to his present condition was irrelevant in light of that fact the administrative law judge found that the applicant was not disabled at that time. With respect to a second letter stating that the applicant was under the physician's care for accelerated angina, congestive heart failure, and coronary artery disease, was limited to just light activity and complete bed rest, and was scheduled for arteriography and possible coronary bypass, the court observed that it was undated, so the court could not tell if it was new.

CUMULATIVE SUPPLEMENT

Cases:

Claimant for disability insurance benefits was not entitled to remand based on Appeals Counsel's failure to consider evidence submitted following administrative hearing concerning his cardiac catheterization, where catheterization report demonstrated only that claimant suffered from coronary artery disease that could be managed medically, and ALJ had already determined that claimant suffered from severe impairment consisting of ischemic heart disease, but that he retained residual functional capacity to perform limited range of sedentary work. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Cooper v. Commissioner of Social Security, 277 F. Supp. 2d 748 (E.D. Mich. 2003).

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§ 12[a] Arthritis—Held new

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of arthritis considered, held that such evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Delgado v. Secretary of Health and Human Services, 43 F.3d 1456 (1st Cir. 1994) (publication and use restricted), held that the additional evidence, a medical report indicating that the claimant suffered from rheumatoid arthritis and required surgery on his knees, hips, and right ankle, offered as the basis for a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), was plainly new, since the administrative law judge did not have before him evidence that the claimant was suffering from rheumatoid arthritis, much less that his condition required surgery. On September 21, 1989, the claimant, a bakery worker, filed an application for benefits alleging that he was disabled due to an injury to his right leg, and in a subsequently filed disability report the claimant alleged that after breaking his ankle on February 2, 1984, he eventually had to stop working entirely because his leg swelled up whenever he stood up for long periods of time. A consulting physician diagnosed a crush injury deformity of the right hand with partial wrist and thumb motion loss, a healed fracture in the right ankle with partial loss of motion and weakness, and pain and crepitus (a crackling sound) in both knees. Although the administrative law judge found that the claimant's musculoskeletal condition was severe and that he was not able to perform his past work, the judge held that the applicant had residual functional capacity to perform the full range of light or sedentary work, reduced by limitation of motion of the right hand or wrist, and that the claimant's complaints of pain were not credible to the degree of severity alleged. The Appeals Council denied review on September 23, 1992. Between February 12, 1992, and September 9, 1992, the claimant was treated with anti–inflammatory drugs, and on September 23, 1992, the claimant was seen by an orthopedic surgeon, who reported that the claimant's knees, hips, and right ankle required surgery and opined that the claimant was totally disabled. On or about November 9, 1992, the claimant had a left total knee replacement, and on February 11, 1993, he underwent a right total knee replacement.
In the case of an applicant for social security disability benefits based upon degenerative arthritis of cervical and lumbosacral spine, peptic ulcer disease, mitral valve prolapse with arrythmia, chronic sinusitis, and cataracts, the court in Baran v. Bowen, 710 F. Supp. 53, 25 Soc. Sec. Rep. Serv. 508, Unempl. Ins. Rep. (CCH) ¶14934A (S.D.N.Y. 1989), implicitly held that reports that were prepared 2 years after the date of the administrative law judge's decision and indicated that the applicant was not able to stand and move about for long, that she could not sit for more than 4 hours a day and only 30 minutes continuously, and that she could not walk or stand for more than 5 minutes continuously, as well as x–rays indicating the persistence of degenerative disease, were new evidence for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court, in Geracitano v. Callahan, 979 F. Supp. 952, 54 Soc. Sec. Rep. Serv. 580, Unempl. Ins. Rep. (CCH) ¶16022B (W.D.N.Y. 1997), held that a letter, in existence at the time of the administrative proceeding but not known about by the applicant at that time, was new for purposes of the sixth sentence of § 205(g) of the Social Security Act. The court stated that, for additional evidence to be new, it must not be cumulative of what is already in the record. The court held that the letter, indicating the doctor's opinion that the applicant could not be gainfully employed because of the severe nature of his arthritis, met this standard and was new.
The court in Barnard v. Secretary of Health and Human Services, 515 F. Supp. 690 (D. Md. 1981), held that a physician's letter stating that the arthritis of an applicant for social security disability benefits had worsened was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since it described the plaintiff's worsened condition.

§ 12[b] Arthritis—Held not new

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to evidence of arthritis considered, held that the evidence was not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Shaver v. Secretary of Health and Human Services, 878 F.2d 382 (6th Cir. 1989) (publication and use restricted), the court held, in the case of a man who applied for social security disability benefits because of chronic rheumatoid arthritis, that new medical evidence in the form of a two–paragraph letter from a doctor stating that the claimant was under the doctor's care, had persistent pain in both wrists, had difficulty walking, and was not able to sustain any type of gainful activity was not new for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since it presented no new medical finding, merely reported swelling and inflammation that the Commissioner did not dispute, and contained no information not already in the administrative record.
The court, in Brock v. Apfel, 1998 WL 808860 (N.D. Ill. 1998), held that additional evidence revealing that plaintiff might have a further limitation as to her right foot due to arthritis was not new because the additional evidence was consistent with the other evidence submitted to the administrative law judge to make her finding. Much evidence regarding the plaintiff's arthritis was submitted during the original hearing.

§ 13[a] High blood pressure—Held new

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of high blood pressure considered, held that the evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Tirado v. Bowen, 705 F. Supp. 179, 24 Soc. Sec. Rep. Serv. 659, Unempl. Ins. Rep. (CCH) ¶14665A (S.D.N.Y. 1989), held that, with respect to an applicant for social security disability benefits based upon asthma, high blood pressure, and uterine bleeding, evidence that she was treated at a hospital 4 years after the disability period in question was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the later diagnoses indicated that many of her symptoms were worse than when her benefits were denied, and such evidence could hardly be described as cumulative.
The court in Pickett v. Bowen, 1986 WL 8048 (N.D. Ill. 1986), held that medical records of an applicant for social security disability benefits on the basis of arthritis, hypertension, obesity, and migraine headaches were new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since neither counsel for the applicant nor the administrative law judge had been able to gain possession of the records before the administrative hearing.
The court in Robinson v. Shalala, 871 F. Supp. 3, 46 Soc. Sec. Rep. Serv. 341, Unempl. Ins. Rep. (CCH) ¶14527B (D.D.C. 1994), remanded pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) a claim for supplemental security income based upon disability due to hypertension, spastic colon syndrome, and rheumatoid arthritis. The court found that the Commissioner's decision to deny benefits was supported by substantial evidence because there was evidence that the applicant's condition was deteriorating. Thus, the court implicitly held that the evidence of deterioration was new evidence for purposes of § 205(g).

§ 13[b] High blood pressure—Held not new

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of high blood pressure considered, held that the evidence was not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Fonseca v. Chater, 953 F. Supp. 467, 52 Soc. Sec. Rep. Serv. 831, Unempl. Ins. Rep. (CCH) ¶15730B (W.D.N.Y. 1997), judgment aff'd, 141 F.3d 1151 (2d Cir. 1998), held that a claimant for social security disability benefits had not established that additional evidence that he wanted to introduce was new for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the claimant was diagnosed with high blood pressure in 1985, was treated with anti–hypertensive medication beginning in 1986, and discontinued the medication in 1988, while the application for benefits at issue in the instant case was filed on May 4, 1993. The court stated that medical evidence that a claimant could have offered prior to an administrative hearing or decision is not new evidence.
The court, in Rich v. Apfel, 57 Soc. Sec. Rep. Serv. 359, 1998 WL 458056 (S.D.N.Y. 1998), held that a claimant for social security disability benefits had not established that additional evidence that he wanted to introduce was new for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act. The applicant sought to introduce evidence relating to his high blood pressure. The court stated that the proffered evidence had to be "new" and not merely cumulative of other evidence in the record and held that the evidence presented by the applicant was clearly cumulative, as plaintiff failed to identify a single finding or diagnosis in the submitted evidence that was not already contained in the record.

§ 14. Neuritis

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of neuritis considered, held that the evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Barrera v. Secretary of Health and Human Services, 872 F. Supp. 24, 46 Soc. Sec. Rep. Serv. 421 (E.D.N.Y. 1995), the court held that a physician's report that the claimant had a severe neuritis affecting her neck and lower back and radiating down the right leg, causing "unremitting pain, even when sitting" and making "it impossible for her to work," was new for purposes of the sixth sentence of 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because the claimant's treating physician had not filled out forms sent to him by the administrative law judge to obtain information concerning the claimant's physical condition.
In Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 7 Soc. Sec. Rep. Serv. 127, Unempl. Ins. Rep. (CCH) ¶15549 (3d Cir. 1984), the court held that 5 reports from physicians that postdated the administrative hearing for a claimant seeking disability benefits on the basis of polyneuritis, severe anxiety syndrome, and great pain constituted new evidence for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), stating that reports were clearly new because they were compiled after the Commissioner's first decision and therefore could not have been presented at the hearing. In addition, the court stated that the reports were not merely cumulative of evidence in the record since they set forth the applicant's personal history in greater depth, including facts that related directly to her alleged psychiatric problems, and appeared to corroborate substantially the applicant's subjective complaints of great pain.

§ 15. Diabetes

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of diabetes considered, held that the evidence was not new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Karouz v. Sullivan, 1992 WL 220760 (D.R.I. 1992), held that an application for social security disability benefits based on the combined effects of uncontrollable diabetes, spinal meningitis, and arthritis in the neck would not be remanded to the Commissioner of Social Security to allow the applicant to present evidence from her husband and the manager of an exercise shop regarding the applicant's activities at the shop, since such evidence was not new for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court noted that the applicant had stated at the administrative hearing that she worked approximately 40 hours per week from July, 1987, through December, 1987, and 16 hours per week from December, 1987, to July, 1988, that her original duties in the exercise shop were to open the door in the morning, sit at a desk, and assist the clients onto the exercise machines, and that after August, 1988, she only went in to collect money and check up on things at her leisure; she also testified that she assisted in the preparation of the salon's books. Any further testimony regarding her activities at the salon would, the court stated, be cumulative of the applicant's own testimony.
The court in Jewell v. Harris, 673 F.2d 1329 (6th Cir. 1981) (publication and use restricted), ruled that an applicant for social security disability benefits was not entitled to a remand of case pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because a letter from one physician noting that the claimant suffered from episodes of dizziness in 1974 and jerking of the abdomen in 1975 or 1976, which were symptoms of the claimant's diabetes and/or diverticulitis, was not new evidence for purposes of § 205(g), since both of the conditions were discussed at length in the disability hearing and both were found to be controlled by medication.

§ 16. Chronic fatigue syndrome

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of chronic fatigue syndrome considered, held that the evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Fragale v. Chater, 916 F. Supp. 249, 50 Soc. Sec. Rep. Serv. 344, Unempl. Ins. Rep. (CCH) ¶15234B (W.D.N.Y. 1996), held that a letter dated January 16, 1996, from the physician of a claimant for social security disability benefits based on chronic fatigue syndrome, which stated that the physician had been treating the claimant for her chronic fatigue syndrome and that she had been disabled since August, 1989, was new evidence for purposes of applying the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), where the administrative hearing on the claimant's application was held on August 18, 1993.
The court in Schaffer v. Apfel, 992 F. Supp. 233, 55 Soc. Sec. Rep. Serv. 985 (W.D.N.Y. 1997), held that evidence consisting of a neurologist's report and a psychiatrist's opinion was new and warranted a "sentence six remand" of a Supplemental Security Income (SSI) case to allow the Commissioner of Social Security to consider the evidence, as the additional evidence was the first mention of the possibility that the claimant suffered from chronic fatigue syndrome.

§ 17. Alcoholism

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of the claimant's alcoholism considered, held that such evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Burton v. Heckler, 724 F.2d 1415, 3 Soc. Sec. Rep. Serv. 383 (9th Cir. 1984), implicitly held that a letter from the claimant's treating physician relating to problems connected with the claimant's alcoholism and describing the results of new psychological testing dated August 13, 1980, which indicated the presence of a "severe impairment" in the claimant's ability to acquire new information and skills or even to reason with his existing information and skills and concluded that the claimant could not perform his former work, and a psychiatric evaluation dated October 27, 1980, opining that the deterioration of the claimant's mental capacity was due to long–term alcohol abuse were new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The claimant was employed as a maintenance worker and laborer until 1977, underwent medical treatment for acute and chronic alcoholism with cirrhosis of the liver, and in 1977 was hospitalized for that condition. On March 21, 1980, an administrative law judge found that the claimant was no longer disabled after the claimant failed to submit any evidence at the hearing contradicting the apparent improvement in his condition, and administrative law judge's decision became the final decision of the Commissioner when the Appeals Council approved it on September 9, 1980. The claimant presented evidence before the Appeals Council based on a 1977 hospital report and the August 13, 1980, letter and presented to the district court this information and also the psychiatric evaluation dated October 27, 1980, concluding that the deterioration of his mental capacity was due to long–term alcohol abuse.

§ 18. Fibromyalgia

[Cumulative Supplement]

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of fibromyalgia considered, held that the evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Lisa v. Secretary of Dept. of Health and Human Services of U.S., 940 F.2d 40, 34 Soc. Sec. Rep. Serv. 303, Unempl. Ins. Rep. (CCH) ¶16241A (2d Cir. 1991), held that reports of 4 physicians concurring in the diagnosis that the claimant suffered from fibromyalgia and 2 magazine articles describing the disease constituted new evidence supporting remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). While the Commissioner contended that the evidence was not new, pointing to a reference to fibrositis in a medical report submitted to the administrative law judge, the court noted that the diagnosis in the report was that the claimant had a "very mild seronegative arthritis" together with a "fibrositic overlay and borderline hypothyroidism," and nothing in the report suggested that the Commissioner attached any special significant to the tangential mention of fibrositis or pondered its implications, so the new evidence was not cumulative.

CUMULATIVE SUPPLEMENT

Cases:

New and material evidence did not warrant remand of claimant's case for supplemental security income benefits, alleging disability, based on carpal tunnel syndrome, fibromyalgia, stress, and mitral valve prolapse; evidence which claimant submitted to court first came into existence as result of new application for benefits, material, however, was developed prior to Appeals Council's decision, claimant apparently made no attempt to submit any of the records to Appeals Council, and claimant was aware of requirement that new evidence must be submitted to Appeals Council. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Rogers v. Barnhart, 204 F. Supp. 2d 885 (W.D. N.C. 2002).
Remand of social security disability case for consideration of additional evidence, consisting of a diagnosis of fibromyalgia, made after the hearing before the ALJ, was not warranted, since fibromyalgia describes a condition very similar to myofascial pain syndrome, considered by the ALJ, and thus the fibromyalgia diagnosis would not have affected the determination that claimant's pain, though present, did not impair her ability to work. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Mondragon v. Apfel, 3 Fed. Appx. 912 (10th Cir. 2001).

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§ 19. Side effects of medicine

The court in the following case, in which an applicant for social security disability sought remand pursuant to the Commissioner of Social Security to have evidence of the side effects of a medicine that the claimant was required to take considered, held that such evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Lafrance v. Sullivan, 1992 WL 125404 (E.D. La. 1992), held, in the case of a woman who applied for social security disability benefits based on a back injury, that evidence in the form of the side effects from medicine she was required to take for her back injury was new evidence for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since it was not cumulative as it had not been presented to the administrative law judge.

§ 20. Impaired vision

[Cumulative Supplement]

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of impaired vision considered, held that the evidence was not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Luckett v. Chater, 1997 WL 55948 (S.D.N.Y. 1997), held that a letter from a physician dated 2 years after the hearing before the administrative law judge was not new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because the assertions contained in the letter—that the claimant had visual problems and had been unable to work since April, 1993—were the same as those made in a prior letter of the doctor in the record.

CUMULATIVE SUPPLEMENT

Cases:

Remand for consideration of new and relevant evidence was warranted, in social security disability benefits case, by evidence of two treating physicians indicating that claimant's decedent had continued to have visual disturbances that interfered with her use of a computer screen, and that her condition required close proximity of a bathroom and frequent interruptions of her job situation. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Lepak ex rel. Lepak v. Barnhart, 206 F. Supp. 2d 389 (W.D. N.Y. 2002).

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§ 21. Cerebrovascular disease

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of cerebrovascular disease considered, held that the evidence was not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Sample v. Shalala, 999 F.2d 1138, 41 Soc. Sec. Rep. Serv. 588, Unempl. Ins. Rep. (CCH) ¶17420A (7th Cir. 1993), on remand on other grounds to, 1994 WL 66144 (N.D. Ill. 1994), the court held that a November 1991 letter from a physician who examined the claimant, stating that in his the view the claimant's impairments equaled a listed impairment in that the claimant's vertigo was the result of cerebrovascular disease affecting the brainstem, as evidenced by a 1987 MRI and based on a 1981 diagnosis of right vestibular disorder, was not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that, while a treating physician's view that a patient's impairments equaled the listed impairments might influence the Commissioner's decision, the claimant's argument that the evidence was new was unpersuasive since new evidence is evidence not in existence or available at the time of the administrative proceeding, and the physician's medical conclusion about the equivalence of the claimant's impairments was based on the claimant's treatment at a neurology clinic between 1988 and 1989, which was part of the record when the case was before the administrative law judge. Although the actual letter was written after the administrative law judge's decision, it was, the court stated, based on information that was part of the administrative record and that was available before the decision, namely the physician's treatment of the claimant in 1988 and 1989, a 1987 MRI, and 1981 hospital notes, and such evidence could not fairly be characterized as new.

§ 21.5. Multiple conditions

[Cumulative Supplement]

The following authority considered whether purported new evidence of the claimant's multiple medical conditions warranted remand under 42 U.S.C.A. § 405(g) for the consideration of new evidence on the issue of the claimant's eligibility for Social Security Disability benefits.

CUMULATIVE SUPPLEMENT

Cases:

Treating physician's letter, in social security disability benefits case, stating that during the relevant period he had treated claimant for chronic generalized anxiety, hypertension, and hyperlipidemia, did not warrant remand; letter presented no new or material evidence since physician's notes had already provided a better description of claimant's condition than the letter did, and there was no good cause why the letter could not have been obtained at an earlier date. Vlamakis v. Commissioner of Social Sec., 172 Fed. Appx. 274, 110 Soc. Sec. Rep. Serv. 612 (11th Cir. 2006).

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§ 22. Unspecified medical evidence

[Cumulative Supplement]

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security, held that unspecified medical reports constituted new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security only upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Byars v. Secretary of Health and Human Services, 944 F.2d 904 (6th Cir. 1991), the court held that a medical report prepared after the administrative law judge had denied a disability claim based on acute emphysema and angina constituted new evidence for purposes of applying the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court in Wysocki v. Sullivan, 761 F. Supp. 693, 33 Soc. Sec. Rep. Serv. 287, Unempl. Ins. Rep. (CCH) ¶16305A (C.D. Cal. 1991), held that evidence concerning the onset date of the claim of an applicant for social security disability benefits was new evidence for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since comparable evidence could not be found within the present administrative record.
comment The applicant did not have the opportunity at the administrative hearing to introduce evidence about the onset date because the administrative law judge granted the applicant's claim without a hearing and misled the applicant into believing that he did not have a right to a postdecision oral hearing.

CUMULATIVE SUPPLEMENT

Cases:

Remand was warranted, in social security supplemental security income (SSI) benefits case in which evidence did not support finding that claimant could engage in substantial gainful activity even though his ability to perform a full range of sedentary work was impeded by nonexertional limitations; additional testimony of the vocational expert (VE) adduced by claimant was not such as to have left the ALJ with no discretion to act in any manner other than to award benefits. Perkins v. Barnhart, 266 F. Supp. 2d 198 (D. Mass. 2003).
Remand for consideration of new evidence was not warranted, in social security disability benefits case, even though the proffered new evidence, consisting of recent medical reports and diagnostic tests prepared after date of ALJ's decision, indicated that claimant's condition had worsened; there was nothing to suggest that the deterioration in claimant's condition occurred on or before the date of ALJ's hearing. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Milano v. Commissioner of Social Security, 152 Fed. Appx. 166 (3d Cir. 2005).
Claimant for disability insurance benefits did not show good cause for failing to submit during administrative hearing evidence of his small capacity, neurogenic bladder, which caused his urge incontinence and frequency, and thus was not entitled to remand to Secretary of Health and Human Services for reconsideration of its denial of benefits, despite claimant's contention that he had been unable to afford to see urologist until after hearing, where claimant was aware of his urinary problems before hearing, but did not pursue seemingly available workman's compensation insurance until at least four years after problems began. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Hammond v. Apfel, 5 Fed. Appx. 101, Unempl. Ins. Rep. (CCH) ¶16504B (4th Cir. 2001).
Undated photographs of applicant for supplemental security income (SSI), submitted to administrative law judge (ALJ) after close of hearing on application for purpose of demonstrating extent and effect of applicant's obesity, were not new and material, and ALJ's refusal to consider them did not warrant judicial remand of her application, where ALJ had already observed applicant throughout her hearing and specifically found that her obesity constituted severe medical impairment. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Hensley v. Commissioner of Social Sec., 214 Fed. Appx. 547, 2007 FED App. 0056N (6th Cir. 2007).
Worker did not have new and material evidence sufficient to support remand of ALJ's decision not to award Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) for worker's job–related injuries; worker's request that ALJ reconsider "all evidence" developed in conjunction with application for benefits was unspecified and conclusory, and doctor's letter addressing worker's health condition, which was written after ALJ's hearing decision did not address worker's condition at time decision was made. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g); 20 C.F.R. § 404.970(b), 416.1470(b). Chapman v. Barnhart, 189 F. Supp. 2d 795 (N.D. Ill. 2002).
In social security disability case, ALJ failed to fully and fairly develop the record in the absence of counsel, and therefore case had to be remanded for re-hearing; ALJ failed to clarify the onset date of claimant's disability with a treating physician and failed to re-contact the other treating physicians to determine the onset date, and the absence of physician notes suggested that the medical record during the relevant time period was incomplete. 20 C.F.R. § 404.1512(e). Blom v. Barnhart, 363 F. Supp. 2d 1041 (E.D. Wis. 2005).

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2. Materiality of Evidence

§ 23[a] Back injuries—Held material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of back injuries considered, held that the evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Bomes v. Schweiker, 544 F. Supp. 72 (D. Mass. 1982), held that a physician's diagnosis that an applicant for social security disability benefits based upon pain in his left foot and leg and left–side hemiparesis was suffering from a herniated disc impinging on the spinal column was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court noted that, while the Appeals Council had before it 2 brief letters from the physician reporting his diagnosis and the subsequent operation, it did not have the physician's opinion that the herniated disc might have been the cause of plaintiff's previous problems, so the record lacked this evidence tending to show that the applicant was "under a disability" for a period of at least 12 months. The court found that the evidence would provide a missing clinical explanation that might cause the decision of the Commissioner to be different.
The court in McNeil v. Heckler, 577 F. Supp. 212, 4 Soc. Sec. Rep. Serv. 428, Unempl. Ins. Rep. (CCH) ¶15843 (D. Mass. 1983), held that additional evidence consisting of a vocational assessment report from a rehabilitation program and a myelogram revealing a "small midline and right–sided disc herniation at L4–5 space" was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in the case of an individual who was shot in 1969 and 11 years later stopped working because the pain from the bullet became unbearable, as the evidence bore on the central issues in the case and was at odds with the administrative law judge's conclusion that the applicant had the residual functional capacity to perform sedentary work. The court ruled that the medical records involving the myelogram related directly to the cause of the applicant's back pain and might well affect the administrative law judge's determination that the applicant's subjective complaints of severe pain were not credible.
The court in Zurek v. Shalala, 878 F. Supp. 314, 47 Soc. Sec. Rep. Serv. 303, Unempl. Ins. Rep. (CCH) ¶14304 (D.N.H. 1994), held that medical records indicating that the claimant had a "large disc herniation L4–5 left and the possible disc fragments first nerve root anomaly on the left recess," which explained the pain that the claimant was having in his leg and big toe, were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the new medical reports and evaluations, coupled with those that led the administrative law judge to conclude in his final decision that the claimant had severe arthralgia of the knees, a history of fracture of the right ankle, and obesity, provided a more thorough and evaluative diagnostic evaluation bearing on the underlying basis of the administrative law judge's final decision.
The court in Sharpe v. Sullivan, 802 F. Supp. 938, 39 Soc. Sec. Rep. Serv. 283, Unempl. Ins. Rep. (CCH) ¶17231A (W.D.N.Y. 1992), related reference, 1994 WL 29827 (W.D.N.Y. 1994), held that medical evidence relating to back surgery performed after the applicant's claim for social security disability benefits based upon his back injury had been denied was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The new evidence included a statement by the applicant's surgeon that the applicant was permanently, partially disabled and would not be able to return to any physical labor on a permanent basis and an evaluation of the applicant by a physician on behalf of the workers' compensation insurer of the applicant's employer, which indicated that the applicant had problems sitting for more than 10 minutes, driving for more than a half–hour, and walking for more than 15 minutes. The court stated that the proffered evidence was clearly probative on the issue of the applicant's credibility regarding his complaints of back pain, which were made throughout the alleged disability period, and, as such, was relevant to the applicant's s condition during the time period for which benefits were denied by the administrative law judge, and there was a reasonable possibility that this new evidence would have influenced the Commissioner to decide the applicant's claim differently.
See Sharpe v. Shalala, 1994 WL 29827 (W.D.N.Y. 1994), in which the court held that, although the Commissioner of Social Security was substantially justified for purposes of the Equal Access to Justice Act in opposing a motion to remand a case seeking social security disability benefits based on a back injury pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), the evidence in question was material under that provision. The Commissioner contended that the reports on which the applicant relied in seeking remand indicated only a subsequent worsening of the applicant's condition and that the reports were not material because they would not lead to a different conclusion at the agency level, although they in fact did. While the applicant argued that the Commissioner in opposing remand had ignored a line of case law indicating that evidence of surgical operations performed after the denial of benefits is relevant to whether the claimant was previously disabled, the court stated that the cases in question recognized that not all evidence of subsequent surgical operations warrants remand, but only evidence that the court determines may illuminate the applicant's condition during the period for which benefits were originally claimed and denied. As an example, the court noted that in Tirado v. Bowen, 705 F. Supp. 179, 24 Soc. Sec. Rep. Serv. 659, Unempl. Ins. Rep. (CCH) ¶14665A (S.D.N.Y. 1989), the Second Circuit stated that new evidence may be relevant if it illustrates the depth of the claimant's illness that, although not fully diagnosed, existed at the time of the administrative hearing, so the Commissioner's position was substantially justified if there was a reasonable basis for the Commissioner to argue that the new medical evidence was not relevant to the period for which benefits were denied. The court concluded that there was such a basis, as the applicant did not contest the fact that the applicant presented no evidence of disability between July 24, 1987, when the Appeals Council upheld the Commissioner's denial of benefits, and April 1991, when a physician first opined that plaintiff was a candidate for surgery, since the physician's previous medical reports indicated no abnormalities.
In Flanders v. Chater, Unempl. Ins. Rep. (CCH) ¶15040B, 1995 WL 608287 (S.D.N.Y. 1995), related reference, 1995 WL 672457 (S.D.N.Y. 1995), the court held that new evidence in the form of reports from the claimant's treating neurologist and orthopedist was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the new evidence would have been likely to influence the Commissioner to decide the claim differently, as the orthopedist estimated that the claimant could only sit 2 hours, which eliminated any possibility that the claimant could return to her past work or perform any sedentary jobs. In addition, the court observed, the claimant could not engage in any substantial activity if, as her neurologist opined, she had to lie down during the day or was unable to use public transportation, and the information provided by the neurologist's report as to the frequency of the claimant's seizures shed considerable new light on the seriousness of the claimant's condition. The court observed that the reports were relevant to the period in question since the claimant's osteoarthritis and seizure disorders predated her claim for benefits.
See Stewart v. Secretary of Health, Educ. and Welfare of U.S., 714 F.2d 287, 2 Soc. Sec. Rep. Serv. 410 (3d Cir. 1983), in which the court of appeals left it to the district court to determine whether new evidence justified a remand to the Commissioner of Social Security pursuant to § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). Noting that the new evidence consisted of a 1980 myelogram and a 1982 letter from a doctor recommending surgery for disc removal, while the claimant last met the special earnings requirements of the Social Security Act on September 30, 1978, and it was his condition at that time that was in question, the court stated that the evidence proffered by the claimant might be relevant as a diagnosis of a herniated disc in 1980 coupled with an examination of the claimant's medical history from 1978 to 1980 could allow a physician to draw conclusions about the claimant's condition in 1978. Alternatively, the diagnosis of a herniated disc in 1980 tended, the court stated, to support the opinion of the claimant's treating physician, who repeatedly stated that the claimant was disabled. This contention was rejected by the administrative law judge in part because it was not substantiated by findings from physical examinations or clinical studies. The court noted that the new evidence also supported the testimony of the claimant concerning his level of discomfort.
The court in Ripley v. Chater, 67 F.3d 552, 49 Soc. Sec. Rep. Serv. 112, Unempl. Ins. Rep. (CCH) ¶14847B (5th Cir. 1995), held that evidence of back surgery after an administrative law judge's decision denying the applicant's claim for social security benefits based on a back injury, which revealed the presence of significant scar tissue from prior back surgery and scarring of the nerve root to the lateral wall of the canal, was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the scar tissue obtained during the second surgery related to the period for which disability benefits were sought, and there was a reasonable probability that this new evidence would have affected the outcome of the Commissioner's decision, since the administrative law judge had rejected the claimant's subjective complaints of pain because of a lack of objective medical testimony to substantiate his complaints. The new evidence seemed to provide an objective basis for the claimant's subjective complaints and therefore a basis on which the administrative law judge could rule in favor of the claimant.
The court in Briggs v. Schweiker, 703 F.2d 559 (6th Cir. 1982), stated that the medical records of a claimant for social security disability benefits based on a back injury who had his lumbar disc at L4–5 excised after his application was denied by an administrative law judge were "inherently" material since they were substantively different from that which was considered by the administrative law judge and were relevant to and probative of the severity of the claimant's disability, and the court ruled that a fair administrative hearing required incorporation of the new evidence.
The court in Kindred v. Heckler, 595 F. Supp. 563, 7 Soc. Sec. Rep. Serv. 593, Unempl. Ins. Rep. (CCH) ¶15933 (N.D. Ill. 1984), held that additional evidence consisting of a CT scan report and an additional medical report from a physician who examined the applicant prior to the administrative hearing in December, 1982, stating that based on examinations of the applicant in January, March, and April, 1983, (a) the applicant's severe back pain had not diminished under the various drug therapies he had attempted and (b) the physician was considering the applicant for a myelogram and, perhaps, further surgery, was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since there was a reasonable possibility such strong evidence of the continuation and worsening of the applicant's condition might alter the Commissioner's determination concerning the applicant's claim for social security disability benefits. The court noted that the administrative law judge had concluded that the applicant's complaints of pain were not entirely credible and that the claimant did not suffer from pain severe enough to preclude her from doing sedentary clerical work as she had done in the past; the court found that there was a reasonable possibility that the new evidence, which included a statement by one of the physicians, who examined the applicant after the administrative law judge's decision, that the applicant could not presently be expected to work since she would need frequent periods of rest during which she would need to lie down to relieve her low back and leg pain would change the decision of the Commissioner.
The court in Woods v. Bowen, 1988 WL 247678 (N.D. Ill. 1988), related reference, 778 F. Supp. 976, 35 Soc. Sec. Rep. Serv. 741, Unempl. Ins. Rep. (CCH) ¶16545A (N.D. Ill. 1991), held that a physical capacities evaluation of an applicant for social security disability benefits based on an ulcer and severe back problems, prepared after the decision of the administrative law judge denying the applicant's claim, was obviously material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because it directly contradicted the administrative law judge's finding that the applicant could perform her past work as a meatpacker and drew into question whether the applicant could even perform sedentary tasks.
In the case of an applicant for social security disability benefits based primarily on back problems, the court in Palmore v. Department of Health and Human Services, 1989 WL 152377 (N.D. Ill. 1989), held that 4 sets of hospital records: (1) a request for physical examination dated November 17, 1972; (2) a radiographic report from a physician dated September 27–28, 1973; (3) a report from another physician dated sometime in 1988; and (4) a radiology report dated April 13, 1989, were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), although the record contained reports from physicians dated May 21, 1971, indicating that the applicant had a very large anterior defect at the L–4, 5 interspace, that x–rays revealed sacralization of the applicant's L–5 lumbar vertebra on the left, and that the applicant was told to cease heavy lifting and wear a lumbosacral corset. While the court acknowledged that documents bearing dates after the period when a claimant becomes disabled (1983 in the instant case) are generally irrelevant to a disability determination, the court stated that the report of September 27–28, 1973, and the 1988 report reflected a degenerative problem in the applicant's back, as the 1973 radiographic report stated that "[e]arly degenerative changes are present in the dorso–lumbar region," and the report of 1988 stated that the applicant had "severe degenerative joint disease of the cervical spine," but the decision of the administrative law judge failed to discuss such evidence in his analysis of the applicant's claim. The court ruled that, since the administrative law judge could have found, with the aid of the new documents, that the applicant's degenerative condition began in 1973 and progressed until he could no longer work in 1983, there was a reasonable possibility that the Commissioner's decision might change.
The court, in Stubbs v. Apfel, 1998 WL 547107 (N.D. Ill. 1998), held that an MRI, conducted after the benefits proceeding, was material for purposes of the sixth sentence of § 205(g) of the Social Security Act. The court stated that evidence is deemed material if there is a reasonable possibility that it would have changed the outcome of the Secretary's decision. The MRI revealed a "large central disc herniation … with significant central stenosis and associated degenerative changes." The court stated that this test not only corroborated the results of the 1993 MRI and CT scan (which the administrative law judge discounted as suspect) but also showed a progressive deterioration in the claimant's lumbar region since the performance of the tests in 1993. The court found this progression especially material given the fact that the administrative law judge found the claimant's testimony regarding the degree and severity of the pain and limitations she alleged to suffer as a result of her condition incredible. The court therefore concluded that the later MRI was material, since there was a reasonable possibility that it could have changed the administrative law judge's decision.
The court in Wainwright v. Secretary of Health and Human Services, 939 F.2d 680, 34 Soc. Sec. Rep. Serv. 271, Unempl. Ins. Rep. (CCH) ¶16203A (9th Cir. 1991), held that a recently obtained magnetic resonance imaging scan, which the applicant's treating physician interpreted as showing a disc fragment in her spine, was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). It was relevant to the applicant's claim, since, although a previous scan had not shown the fragment, the scanning technique and software had changed since the time the first scan was made to provide a much higher degree of fine imaging. It was reasonable, the court said, to believe that the fragment may well have been there when the first scan was made but was not discernible at that time. The court stated that the significance of the scan was that it might provide a medical basis for the applicant's allegations of disabling pain, while the existence of pain might provide proof that the fragment was present, albeit undetected, during the period in question. Since the administrative law judge based his denial of benefits on the fact that he found the applicant's allegations of pain to be unsupported by the medical evidence, the court found that the new scan might provide a medical basis for the allegations of pain, and thus there was a reasonable possibility of changing the administration law judge's determination.
The court in Caulder v. Bowen, 791 F.2d 872, 13 Soc. Sec. Rep. Serv. 397, Unempl. Ins. Rep. (CCH) ¶16830 (11th Cir. 1986), held that new evidence, consisting of the records of a hospitalization of a claimant for social security disability benefits, a lumbar myelogram and CT scan of the spine that revealed a block at the L4–5 level and diagnosis of spinal stenosis indicating an elective lumbar laminectomy with decompression at L3, 4, and 5, and S1, which was performed, and records that the procedure did not eliminate the claimant's pain, weakness, or numbness in the legs, was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court observed that the mere statement by the Commissioner that the new evidence would not ultimately change his decision could not be accorded any weight, since the statement concerning the materiality of the evidence not in the certified administrative record was advisory at best, and the evidence was relevant and probative because it pertained to a condition that the claimant listed in his application at the administrative level as a source of his disability and contained a medical opinion on the presence of the impairment during the time period for which benefits were sought. The court stated that the fact that the treatment and examination took place later in the proceedings did not undermine the weight to be given the diagnosis, and, while the court agreed with the Commissioner's assertion that a physician's statement that a claimant is disabled is not dispositive of the issue of disability, the statement must be considered in the Commissioner's examination of the totality of the evidence. The court concluded that there was a reasonable possibility that the new evidence would change the administrative outcome because it consisted of medical evidence that related directly to one of the claimant's principal alleged impairments, about which there was inadequate evidence presented to the administration law judge, so the proffered evidence filled a gap as to material facts that resulted from the administrative law judge's inadequate development of the record and could substantiate the claimant's assertion of severe, disabling pain.
The court in Smith v. Bowen, 792 F.2d 1547, 14 Soc. Sec. Rep. Serv. 75 (11th Cir. 1986), held, in the case of a woman who sought social security disability benefits on the basis of disabling chronic low back pain resulting from degenerative disc disease and failed surgical back syndrome, that records of the woman's hospitalization a month after the final administrative decision denying her claim, during which she underwent neurolysis and laminectomy, were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) were relevant and probative to the extent they related to the physical impairment that the claimant alleged caused her disabling pain. The court noted that, while each time a claimant undergoes new medical treatment the results of that treatment do not automatically require a remand of the case, there was, on the facts of the instant case, a reasonable possibility that the new evidence would alter the administrative law judge's decision, because (1) it related to the dispositive issue in the case and could substantiate the claimant's contention that the alleged organic medical condition that caused her pain persisted beyond her earlier surgery and treatments, (2) it might provide the claimant with medical signs and findings to establish the existence of an objective medical impairment that could reasonably be expected to produce the pain of which she complained, (3) there was a reasonable possibility that the evidence of the claimant subjecting herself to continued medical treatment of a serious nature would effectively counter the impression of malingering expressed by the administrative law judge as justification for questioning the credibility of the claimant's description of the severity of her pain, and (4) there was a reasonable possibility that this evidence would change the administrative outcome.
The court in Keeton v. Department of Health and Human Services, 21 F.3d 1064, 44 Soc. Sec. Rep. Serv. 248, Unempl. Ins. Rep. (CCH) ¶17805A (11th Cir. 1994), held that new evidence in the form of sworn testimony from the treating physician based on notes of physical examinations and from x–rays that related to a period prior to the date of the administrative law judge's decision denying a claim for social security disability benefits based on pain in the applicant's lower back was material for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because it included an opinion of total disability from a treating physician and a vocational expert while no similar evidence was introduced in the administrative record.

CUMULATIVE SUPPLEMENT

Cases:

Remand for an immediate award of benefits was warranted in social security disability benefits case, where record clearly established that if proper weight were given to the opinion of claimant's treating physician, as well as to claimant's own complaints of disabling pain, claimant would be entitled to benefits. Meece v. Barnhart, 192 Fed. Appx. 456, 2006 FED App. 0569N (6th Cir. 2006).

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§ 23[b] Back injuries—Held not material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of back injuries considered, held that the evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding, where—
—a physician's undated medical report discussing an applicant's office visit, in which the claimant complained of persistent neck, back, and leg pains, which concluded that the applicant was totally and permanently disabled, was essentially the same as prior physicians' reports, which were in the record, so the court concluded that the Commissioner's decision would not "reasonably have been different." Defosse v. Bowen, 670 F. Supp. 1078, 19 Soc. Sec. Rep. Serv. 443, Unempl. Ins. Rep. (CCH) ¶17934 (D. Mass. 1987).
—an opinion of a physician who examined the applicant after the administrative law judge had denied the applicant's claim was similar to opinions already in the record and would not have influenced the decision of the administrative law judge, who had carefully considered the reports of many different doctors, including neurologists, orthopedic surgeons, and cardiologists. LaRiviere v. Sullivan, Unempl. Ins. Rep. (CCH) ¶16366A, 1991 WL 327431 (D.R.I. 1991).
—the detailed opinion of the administrative law judge was unlikely to change in the face of the opinion of one doctor solicited to render an evaluation after the administrative hearings had closed. Lemire v. Shalala, 1994 WL 253557 (D.N.H. 1994).
—a doctor's report made after the administrative hearing stated that, based upon examinations prior to the hearing, at the time of the hearing the claimant's spinal stenosis and osteoarthritis were present as early as April 11, 1988, but on July 2, 1991 a physician specifically reported that claimant had spinal stenosis but could, among other things, occasionally lift and/or carry up to 20 pounds, frequently lift and/or carry up to 10 pounds, stand, walk, and sit about 6 hours of an 8 hour work day. Fritscher v. Shalala, 1994 WL 419901 (E.D. La. 1994).
—the administrative law judge knew that the applicant was scheduled to have back surgery after the administrative hearing.Ward v. Commissioner, Social Sec., 72 F.3d 131 (6th Cir. 1995), (publication and use restricted).
—the additional medical records, most of which postdated the administrative hearing, shed no light on the issue of whether the applicant was disabled prior to March 31, 1982, the last date the plaintiff was insured, as much of the new evidence related to the applicant's condition 3 1/2 years or more after that date. Newman v. Secretary of Health and Human Services, 683 F. Supp. 174, 21 Soc. Sec. Rep. Serv. 481, Unempl. Ins. Rep. (CCH) ¶14046A (W.D. Mich. 1988).
—the fact that a physical therapist noted a 75% loss of motion in the applicant's back did not address the applicant's ability to sit and do sedentary work, and a recent X–ray revealed that her spine was still normal. Wilks v. Chater, 1997 WL 158328 (N.D. Ill. 1997).
The court in Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 18 Soc. Sec. Rep. Serv. 711, Unempl. Ins. Rep. (CCH) ¶17493 (1st Cir. 1987), held that a claimant for social security disability benefits based on low back pain was not entitled to a remand of the case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that the proposed new evidence—a medical evaluation based on examinations of the claimant conducted administrative hearing—could be considered material only if the Commissioner's decision might reasonably have been different had the evidence been available. The court observed that both the administrative law judge and the district court evaluated very large quantities of medical evidence bearing directly on the functional limitations posed by the claimant's health impairments and concluded that the presence in the record of what seemed to the court to be more than substantial evidence concerning the claimant's residual functional capacity for sedentary work, coupled with the wholly derivative nature of the report in question, prevented the court from concluding that the administrative decision "might reasonably have been different."
In Perry v. Shalala, Unempl. Ins. Rep. (CCH) ¶17536A, 1993 WL 541707 (D.N.H. 1993), the court held that additional evidence presented by an applicant for social security disability benefits based on back injury, neck pain, constant pain in her legs, muscle spasms in her back and legs, and diabetes was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), observing that the physician's report emphasized the applicant's poor endurance, lack of conditioning, and range of motor restrictions among the already lengthy list of the applicant's problems, and the administrative law judge's opinion had at least indirectly considered similar findings. While the doctor's evaluation of the applicant's rehabilitation potential presented new medical evidence, since it was the expert opinion of a physiatrist that the applicant was not employable in any meaningful way at any time in the next several years, the court stated that the significance of the opinion was minimal because it was repetitive of reports of other physicians, and the applicant's rehabilitation potential was not relevant to whether the applicant had the residual capacity to do sedentary work.
The court in Brock v. Heckler, 612 F. Supp. 1348, 10 Soc. Sec. Rep. Serv. 739, Unempl. Ins. Rep. (CCH) ¶16346 (D.S.C. 1985), held that medical reports indicating that an applicant for social security disability benefits based on pain emanating from the L3–4, 4–5, and S–1 vertebrae underwent lumbar body fusion surgery and his physician's statement that the applicant was disabled were not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that, while the applicant correctly pointed out that the Appeals Council relied on a medical report prior to the surgery showing the applicant's improvement and argued that evidence of subsequent back problems might alter the Commissioner's decision, the Commissioner's denial of the claim was based on the fact that the applicant, even with her complaints of back pain, was capable of performing sedentary work, and the subsequent medical evidence was not material to the applicant's ability to perform such work on that date. Similarly, the physician's letter stating that the applicant was "presently disabled" and was "unable to work at this time" did not relate to the applicant's condition at the time of the Commissioner's decision.
In Bradley v. Bowen, 809 F.2d 1054, 16 Soc. Sec. Rep. Serv. 163, Unempl. Ins. Rep. (CCH) ¶17157 (5th Cir. 1987), the court held that a claimant for social security disability benefits based on a back injury suffered while trying to move furniture was not entitled to a remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), where an orthopedic surgeon wrote a later dated October 27, 1986, to an insurance company stating that the claimant was totally disabled and expressing the opinion that the claimant could not be sufficiently rehabilitated to engage in office employment, after the district court had rejected the claimant's challenge to the denial of his claim. The court stated that the report was cumulative, at best, since it added little, if anything, to the conclusions of another orthopedic surgeon who had previously given an opinion that, although the claimant was presently disabled, she might be able to return to her previous work activity within 3 to 6 months, or to a physical capacities evaluation, dated April 5, 1984, indicating that the claimant had no capacity for sitting, standing, or walking, could not lift or carry objects weighing up to 5 pounds, and could not bend, squat, crawl, climb, or reach at all, so it was therefore unlikely that there was a reasonable possibility that it would have changed the outcome of the Commissioner's decision.
The court in Handy v. Commissioner of Social Sec., 77 F.3d 482 (6th Cir. 1995), (publication and use restricted) held that a claimant for social security disability benefits based on back problems had failed to show that new medical evidence consisting of a CAT scan would have resulted in a different decision by the Commissioner of Social Security and supported a remand pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The Commissioner argued that the claimant's new evidence, coming almost a full year after the expiration of her insured status, was immaterial to her condition during her period of coverage, and, while agreeing with the general rule that later medical reports may relate back to an earlier time, argued that in the instant case the medical reports did not relate back, as the earlier tests did not reveal any evidence of a back disorder. Thus the new evidence did not on its face relate to the claimant's condition on any earlier date, as was the case in Gambill v. Bowen, 823 F.2d 1009, 18 Soc. Sec. Rep. Serv. 462, Unempl. Ins. Rep. (CCH) ¶17475 (6th Cir. 1987), in which a 1985 medical report clarifying a 1977 report by the same physician was held to relate back.
The court, in Moomey v. Apfel, 3 F. Supp. 2d 970, 57 Soc. Sec. Rep. Serv. 268 (C.D. Ill. 1998), held that a letter subsequently submitted by the applicant, stating that the applicant was not to work until further notice, was not material for purposes of § 205(g) of the Social Security Act. The court stated that evidence is material if there is a reasonable possibility that it would have changed the outcome of the Commissioner's determination. The court then explained why the applicant's additional evidence did not meet this standard. First, the court noted that the decision whether the applicant is disabled is left to the Commissioner and if a letter, such as the one submitted by the applicant, was given weight, it would, in effect, confer on the treating source the authority to make the determination or decision whether an individual is under a disability, and thus would be an abdication of the Commissioner's statutory responsibility to determine whether an individual is disabled. Second, the court observed that the note was conclusory and inconsistent with the doctor's earlier opinion that the applicant could perform light work. Finally, the court noted that the opinion expressed in the letter was inconsistent with the record as a whole, which supported a finding that the applicant could perform light work.
The court in Woolf v. Shalala, 3 F.3d 1210, 42 Soc. Sec. Rep. Serv. 207, Unempl. Ins. Rep. (CCH) ¶17492A (8th Cir. 1993), held that the district court had not erred in denying the motion of a claimant for social security disability benefits based on back problems for a remand of her case pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for a consideration of additional medical evidence because there was not a reasonable likelihood that the evidence would change the determination of no disability. While the claimant contended that the district court should have directed the Commissioner to consider a doctor's letter describing the results of a CT scan performed in May, 1989, and an electromyography (EMG) and nerve conduction study conducted in October, 1989, because they would provide objective medical evidence to support her subjective claims of pain, the court stated that the doctor's letter was ambivalent about the claimant's condition, since it stated that the EMG and nerve conduction study showed some nerve entrapment in the right wrist and "evidence of a C8 lesion in the areas of the left upper extremities originating from the area of the neck," while the claimant's application made no mention of disability in her wrists, and the doctor remarked that he was "unable to detect an obvious neurological deficit… despite the findings on [the] EMG and nerve conduction studies." The letter also stated that test x–rays of the lumbar spine in May, 1989, were negative and revealed no change from a previous examination on July 13, 1988, a bone scan was negative, and, while a CT scan on her lumbar spine showed a bulging disc at the L4–L5 level, several previous tests had revealed the bulging at the L4–L5 level since the claimant began complaining of back pain in 1981.
The court in Ramos v. Chater, 1996 WL 478639 (N.D. Cal. 1996), held that a medical report prepared 2 years after the last administrative hearing in connection with a claim for supplemental security income based upon a back problem was not material for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because there was no reasonable possibility that it would have changed the decision of the administrative law judge since, as stated by the claimant, it was very similar to medical reports already in the record. While the claimant argued that the medical report was material because it related to issues of pain, pain medication and the ability of the claimant to engage in gainful employment, the court found that the report merely documented that (1) the claimant suffered from "mechanical low back pain" and had limited extension and reflexes, (2) no treatment was given to the claimant, and (3) the claimant was referred back to her doctor and did not mention pain medication or the claimant's ability to engage in gainful employment.
The court in Heimerman v. Chater, 939 F. Supp. 832, 51 Soc. Sec. Rep. Serv. 968, Unempl. Ins. Rep. (CCH) ¶15659B (D. Kan. 1996), ruled that additional evidence consisting of a back operation undergone by the claimant after the final administrative determination of the complainant's application for social security disability benefits based upon back problems was not material for purposes of the sixth sentence § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since even if the administrative law judge had known of the surgery it would not reasonably have changed the outcome in light of the fact that the possibility of a future surgery had already been factored into the decision because there was testimony in the record that the claimant was a good candidate for the operation he underwent. In addition, the court noted that the claimant did not argue that the surgery related to the time period for which benefits were denied and stated that evidence of the surgery and its effects might relate to a disability acquired later or a subsequent deterioration of the claimant's previously non–disabling condition, and, as such, the new evidence might form the basis for a new claim but was wholly immaterial to the prior administrative decision. The court also refused to remand for consideration of new evidence when it was less than clear that the new evidence would have changed the administrative law judge's decision, since a report containing an opinion that the claimant was disabled was equivocal and the report carried less weight since it was obtained after the administrative law judge's adverse decision.

CUMULATIVE SUPPLEMENT

Cases:

Medical records offered by social security disability claimant were not material, and thus did not warrant remand based on new evidence, in that they came from same treating sources previously considered by hearing officer and referenced same symptoms and diagnoses, and fact that agency considered the materials along with renewed application and granted disability benefits did not indicate that documents were material. Conte v. McMahon, 472 F. Supp. 2d 39 (D. Mass. 2007).
Supplemental evidence, in form of two notes written by claimant's treating physician on prescription pads asserting that claimant was disabled and would remain so for more than one year, did not warrant remand of social security disability case; when read in conjunction with remainder of medical evidence in case, including treating physician's prior statements that claimant was capable of doing sedentary work and new medical records describing claimant's back condition as "stable" or "unchanged," notes' unexplained assessment, unaccompanied by any clinical observation or medical tests, appeared unsupported and the notes were not "material" as there was no reasonable probability they would have changed outcome of Commissioner's decision. 20 C.F.R. § 404.970(b). Bowles v. Barnhart, 392 F. Supp. 2d 738 (W.D. Va. 2005).
Even if good cause existed for claimant's failure, in social security disability benefits case, to submit certain medical records to the Appeals Council, records did not relate to the relevant time period and thus could not provide a proper basis for remand; records pertained to a diagnosis of radicular pain secondary to vertebral compression fracture which was made six months after the ALJ's decision, and there was no indication that claimant was suffering from that condition prior to the ALJ's decision. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Rhodes v. Barnhart, 117 Fed. Appx. 622 (10th Cir. 2004).
New evidence presented by social security disability claimant, consisting of an MRI and diagnoses of degenerative disc disease in the neck and back, was not material, as required for remand from denial of benefits; the new MRI related to complaints of neck pain but claimant's previous treatment related mostly to back and hip pain, and, in addition, the MRI did not contradict the ALJ's findings, as there was nothing associated with the new medical evidence that limited claimant's ability to do light work, and, almost two years separated the ALJ's decision from the new evidence and the MRI did not provide any new diagnosis that was undiscoverable earlier. 20 C.F.R. § 404.970(b). Archer v. Commissioner of Social Security, 176 Fed. Appx. 80 (11th Cir. 2006).

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§ 24[a] Other orthopedic injuries—Held material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of orthopedic problems other than back problems considered, held that the evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Villanueva v. Chater, 1996 WL 471195 (S.D.N.Y. 1996), held that a claimant for social security disability benefits based on a hand injury was entitled to a remand of his case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), where the administrative law judge failed to make any attempt at the time of the hearing to obtain medical records identified by the claimant in fulfillment of the judge's heightened obligation to assist a pro se claimant in developing the record. The court stated that there was a reasonable possibility that the new evidence would have influenced the administrative law judge's determination, so the administrative law judge was constrained, on remand, to consider the records as additional evidence pursuant to § 205(g).
The court in Czubala v. Heckler, 574 F. Supp. 890, 3 Soc. Sec. Rep. Serv. 651, Unempl. Ins. Rep. (CCH) ¶15321 (N.D. Ind. 1983), held that evidence of subsequent hospitalizations of an applicant for social security disability benefits based upon paralysis of the left arm resulting from a stab wound was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because there was a reasonable possibility that the evidence would change the Commissioner's decision, since the claimant argued for remand claiming his disability continued after April, 1977, so evidence of subsequent surgery and hospitalizations regarding his arm injury was material to the Commissioner's original determination. The court found the claimant's evidence regarding the subsequent treatment of his arm was substantial enough to justify remand.
The court in Hyde v. Bowen, 823 F.2d 456, 18 Soc. Sec. Rep. Serv. 417, Unempl. Ins. Rep. (CCH) ¶17518 (11th Cir. 1987), held that new medical evidence in the form of a letter from the claimant's physician stating that, based on his reevaluation of the applicant, the applicant's allegations of significant pain in his hip and leg were consistent with the objective medical evidence—specifically that the applicant's prosthetic device might be loose—was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since there was a reasonable possibility that the new evidence would change the administrative outcome by providing objective medical support for the claimant's subjective complaints of pain and, if accepted, might warrant acceptance by the administrative law judge of the allegations of pain. The court stated that the new evidence, if accepted, indicated that the claimant not only had an objective basis for his complaints of pain but also that the claimant had such a basis prior to the date of the administrative law judge's decision.

CUMULATIVE SUPPLEMENT

Cases:

District Court did not abuse its discretion in remanding claimant's case, challenging Social Security Administration's (SSA) denial of her application for supplemental security income benefits, to the ALJ for further administrative proceedings, where record did not offer especially firm ground for a decision, and remand allowed for review of claimant's medical records by state agency medical or psychological consultant, permitted SSA to seek consultative mental status examination for claimant, and allowed further development of issue of claimant's noncompliance with prescribed treatment regimen. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g); 20 C.F.R. §§ 416.912(f), 416.927(f), 416.930(b). Sivilay v. Commissioner of Social Security, 32 Fed. Appx. 911 (9th Cir. 2002).

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§ 24[b] Other orthopedic injuries—Held not material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of orthopedic problems other than back problems considered, held that the evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Abreu-Mercedes v. Chater, 928 F. Supp. 386, 51 Soc. Sec. Rep. Serv. 242, Unempl. Ins. Rep. (CCH) ¶15269B (S.D.N.Y. 1996), held that evidence that the claimant had undergone surgery on her left shoulder was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that materiality requires that the new evidence be relevant to the claimant's condition during the time period for which benefits were denied, which ended in the instant case on February 25, 1994, so the claimant's surgery was not material to the period under examination because it occurred in June, 1994. In addition, the court stated that there was no reasonable possibility that the evidence of the operation would have influenced the Commissioner to decide the claim differently, since the administrative law judge considered at length the bilateral shoulder impairment suffered by the claimant and the fact that the plaintiff only had surgery performed on his right shoulder, and there was nothing in the new medical records that provided any information about the claimant's condition that was not present in the administrative record before the administrative law judge except for the fact that the left shoulder had been the subject of corrective surgery.
In Gonzalez v. Chater, 1996 WL 442798 (S.D.N.Y. 1996), the court held that an applicant whose disability payments based on an injury to his left knee were terminated by an administrative law judge had not established that additional evidence in the form of a report by a physician concluding that the applicant suffered from post–traumatic stress disorder, a report from a social worker who treated the applicant for post–traumatic stress disorder, and a residual functional capacity evaluation made by the social worker were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the applicant had failed to show that there was a reasonable possibility that the new evidence would have influenced the Commissioner of Social Security to decide the claimant's application differently.
The court in Breaux v. Secretary of Health and Human Services, 1988 WL 92049 (E.D. La. 1988), held that various medical reports, which indicated that an applicant for social security disability benefits based upon an injured left knee was continuing to have serious problems, were not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)), since there was no information in the reports that indicated that the applicant did not have the physical capacity to do sedentary work. The only restrictions that appeared in the reports were that the applicant could not engage in strenuous activity and should avoid prolonged walking, standing, squatting, climbing, or frequent or heavy lifting, and the administrative law judge's denial of disability benefits was based upon a finding of the applicant's ability to do sedentary work. Accordingly, the court found that there was no reasonable probability that consideration of the new evidence would alter the Commissioner's decision. The court reached the same conclusion with respect to indications in vocational records that the condition of the applicant's knee had deteriorated after the administrative hearing, since there were no medical records in the vocational reports to support these statements, and it was not reasonable to assume that medical conclusions by a lay person standing alone would alter the Commissioner's decision. In any event, the court noted that the applicant had to show that the new evidence related to the time period for which benefits were denied and was not simply evidence of the subsequent deterioration of a previously non–disabling condition.
comment The court in Breaux cited Chaney v. Schweiker, 659 F.2d 676 (5th Cir. 1981), for the proposition that there must be a "reasonable possibility" that new evidence will change the determination of the Commissioner to be material for purposes of the sixth sentence of § 205(g) while also stating in the opinion that there was no "reasonable probability" that the new evidence here would result in a change in the outcome.
The court in Nickerson v. Secretary of Health & Human Services, 894 F. Supp. 279, 48 Soc. Sec. Rep. Serv. 769, Unempl. Ins. Rep. (CCH) ¶15006B (E.D. Tex. 1995), held that evidence in the form of a discharge summary from a physician diagnosing a claimant for social security disability benefits based on lower back pain as having "avascular necrosis of right hip," which involves morphological changes indicative of cell death and is caused by progressive degradation of enzymes due to deficient blood supply,[FN7] was not reasonably likely to have changed the decision of the Commissioner of Social Security as to whether the claimant was disabled. While the claimant argued that avascular necrosis is painful and bolstered his allegations of pain, the court stated that the administrative law judge found that the claimant suffered from pain, and since avascular necrosis is a progressive illness the fact that the claimant's condition degenerated to the extent surgery was required in 1994 was not significantly instructive as to his condition on December 31, 1990, the date his insured status expired.
The court in Cotton v. Bowen, 799 F.2d 1403, 15 Soc. Sec. Rep. Serv. 13, Unempl. Ins. Rep. (CCH) ¶16974 (9th Cir. 1986), held that an electromyogram that demonstrated that an applicant for social security benefits had bilateral carpal tunnel syndrome approximately 18 months after the administrative law judge denied the applicant's claim for social security disability benefits based on a broken left ankle, gout, and arthritis was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the applicant would be required to show that she had the condition for at least a year and a half before it was diagnosed, but the applicant did not complain of any problems with her hands either in her disability applications or at the administrative hearing. In addition, the court noted that a January 1985 medical report stated that the applicant had been experiencing difficulty grasping and holding things recently, which indicated that the applicant's carpal tunnel syndrome was a recent development that did not contribute to the problems she initially asked the Commissioner to consider.
The court in Gamer v. Secretary of Health and Human Services, 815 F.2d 1275, 17 Soc. Sec. Rep. Serv. 367, Unempl. Ins. Rep. (CCH) ¶17377 (9th Cir. 1987), held that 3 medical reports and a report from the California Department of Rehabilitation were not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in the case of applicant for social security disability benefits based on pain in the left arm and hand, back pain, and hypertension, since they raised no new medical problems and failed to show that any of the earlier reports were in error, and, while the rehabilitation report stated that the applicant was completely disabled, it gave no reasons for its findings.
The court in Padgett v. Sullivan, 933 F.2d 1015 (9th Cir. 1991) (publication and use restricted), held that an applicant for social security disability benefits, a construction worker who was injured in a work–related accident, had not established that the fact that he had dropped out of a program to be retrained as a hair stylist because he could not stand the pain was material for purposes of the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)), since he had not offered any medical evidence and since it would at most indicate deterioration after the hearing, which would be material to a new application but was not probative of his condition at the hearing.
comment The opinion indicates that the applicant presented evidence that he had developed bulging discs, osteoarthritic changes, discogenic disease, diminished tendon reflexes, decreased range of motion, and antalgic gait.
The court in Henderson v. Department of Health and Human Services, 16 F.3d 416, Unempl. Ins. Rep. (CCH) ¶17692A (10th Cir. 1994) (publication and use restricted), held that an applicant for social security disability benefits based on injuries suffered in motorcycle accidents consisting of a shortened leg resulting in a limp, a decreased range of motion in his left wrist, and mild organic brain syndrome had not established that evidence on which he relied to justify a remand of his case to the Commissioner of Social Security was material for purposes of the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)). The court noted that the new evidence concerned the applicant's condition after he appealed the denial of his application to the district court and showed, at best, that his condition had deteriorated, but evidence of deterioration does not establish that an applicant was disabled at the time of the administrative hearing. Accordingly, the court of appeals found that the district court did not abuse its discretion by failing to order a remand and observed that if the applicant's condition deteriorated further he could file a new application seeking benefits from the date of disability forward.
In a case involving an application for social security benefits by a woman based on her hip replacements, accompanying pain, and depression, the court in Stella v. Sullivan, 1991 WL 12826 (D. Kan. 1991), stated that the a physician's letter was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since it was "brief, conclusory, and unsupported by medical evidence."
The court in Hatfield v. Apfel, 55 Soc. Sec. Rep. Serv. 861, 1998 WL 160995 (D. Kan. 1998), held that the a of the plaintiff's doctor, indicating that the plaintiff was suffering from overuse syndrome with regard to her hands and arms and was capable of only self care, was immaterial. The court stated that a claimant must show that the new evidence would have resulted in a different determination at the administrative level for it to be material. The court found that the additional report offered no new opinions or new findings to support the doctor's previous opinions. The court also stated that the report did not relate to the time period for which the benefits were denied. The court therefore did not find the additional report to be material.

CUMULATIVE SUPPLEMENT

Cases:

Even assuming arguendo that social security disability claimant seeking sentence six remand had "good cause" for his failure to obtain treating orthopedic surgeon's opinions during relevant time period, remand was still not appropriate because physician's disability conclusions were not "material." Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Cross v. Commissioner of Social Sec., 373 F. Supp. 2d 724 (N.D. Ohio 2005).

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§ 25[a] Psychiatric illnesses—Held material

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of psychiatric problems considered, held such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Rawls v. Apfel, 998 F. Supp. 70, 56 Soc. Sec. Rep. Serv. 565 (D. Mass. 1998), the court held that the plaintiff, who had been repeatedly hospitalized for his bipolar disorder and had been through medication and counseling since the administrative law judge's denial of his benefits, showed that evidence of his subsequent hospitilizations was sufficiently material to form a basis for remand with respect to the plaintiff's Social Security Income (SSI) eligibility. The court stated that additional evidence is material if the administrative law judge's decision "might reasonably have been different" were it considered. The court held that the evidence of the continuing psychiatric condition was material because it provided support for the chronic nature of the plaintiff's mental impairment as it existed at the time of his hearing.
See Rosado v. Shalala, 1994 WL 163718 (S.D.N.Y. 1994), in which the court held that, although incorrect, the government's opposition to the remand of a social security disability benefits claim to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), on the basis of a post–administrative hearing report diagnosing the claimant as suffering from schizophrenia, was substantially justified for purposes of the Equal Access to Justice Act, since the materiality of the report was not so clear as to render the Commissioner's conclusion unreasonable. Noting that the time period for which disability benefits were denied ran from December 1, 1987, the date on which the plaintiff applied for benefits, until April 21, 1989, the date of the administrative law judge's decision that the claimant was not eligible for benefits, and that the Commissioner argued that the psychiatric report concerned a new medical condition, which the applicant had apparently developed after her claim for benefits was adjudicated, so the evidence did not relate to the period at issue, the court stated that evidence bearing on an applicant's condition after the time period for which benefits are denied is not automatically irrelevant to the time period in question since such evidence may disclose the severity and continuity of impairments existing before the relevant time period or may identify additional impairments that could reasonably be presumed to have been present and to have imposed limitations as of the relevant time period. The court acknowledged that, while a reader of the report could decide that the claimant's disability existed at the time of the administrative law judge's decision, the court could not conclude that the inference that the disability did not begin until after the time period in question was unreasonable, since even if the claimant's psychiatric condition existed during the relevant time period, it was not an unreasonable conclusion that it did not become disabling until after the close of the period. The court distinguished Sears v. Bowen, 840 F.2d 394, 20 Soc. Sec. Rep. Serv. 552, Unempl. Ins. Rep. (CCH) ¶17904 (7th Cir. 1988), in which the court remanded on the basis of a psychiatric report submitted over a year after an administrative law judge's decision to deny benefits, because the question in the instant case was not whether the Commissioner's opposition was correct but whether it was reasonable in light of the applicant's psychiatric report, since a decision may be erroneous but not unreasonable.
The court in Santiago v. Shalala, Unempl. Ins. Rep. (CCH) ¶14640B, 1995 WL 224622 (S.D.N.Y. 1995), judgment vacated on other grounds, 1995 WL 358793 (S.D.N.Y. 1995), held that a diagnosis of the claimant as suffering from severe depression, made after the administrative hearing, was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) despite the fact that the diagnosis, dated June 15, 1994, was made after the period for which benefits were sought, because the diagnosis stated that the claimant had suffered from the disorder for the previous 3 years, which included the period for which benefits were sought.
In Morgan on Behalf of Morgan v. Chater, 913 F. Supp. 184, 50 Soc. Sec. Rep. Serv. 168, Unempl. Ins. Rep. (CCH) ¶15163B (W.D.N.Y. 1996), the court held that reports on the behavior of a child admitted to a psychiatric center dated September 6 and 14, 1994, when the hearing before the administrative law judge was held April 7, 1994, and the Appeals Council denied the plaintiff's request for review on September 14, 1994, were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The first report was made when the child was admitted to the facility and contained a history of the child's illness—attention deficit disorder—noting a pattern of fire–setting behaviors during the prior year when angry and violence toward animals, while the second report, a psychological evaluation performed a few days later, found a "long history of attention deficit … history of dangerous fire setting behavior as well as … oppositional tendencies…." The court stated that the reports provided evidence of additional maladaptive behaviors that were not reported earlier, and many of the reported behaviors had occurred throughout the prior year or so.
In Borrero v. Callahan, 2 F. Supp. 2d 235, 57 Soc. Sec. Rep. Serv. 322 (D. Conn. 1998), the court held that a mental health evaluation and neuropsychological assessment, sought to be added to the record, were material evidence for purposes of sentence six of § 205(g) of the Social Security Act. The court stated that additional evidence is material if it is relevant to the claimant's condition during the time period for which benefits were denied, is probative, and creates a reasonable possibility that the Commissioner would have decided the claimant's application differently. To support its holding, the court noted that the reports related to the period of the applicant's insured status. In addition, the court noted one report's indication that the applicant's "illness interfere[d] markedly with his ability to be gainfully employed for at least another year," suggesting that consideration of the applicant's mental impairments might have altered the administrative law judge's determination that the plaintiff was not disabled.
In Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 7 Soc. Sec. Rep. Serv. 127, Unempl. Ins. Rep. (CCH) ¶15549 (3d Cir. 1984), the court held, in remanding to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) an action challenging the administrative denial of the claim of a woman seeking disability benefits on the basis of polyneuritis, severe anxiety syndrome, and great pain, that the government's expert witness had testified that there might be some unknown factors in the woman's background that caused her to be unable to function normally. The court stated that the new reports detailing the claimant's experience in Auschwitz might give the administrative law a judge a better understanding of the report of the government's expert witness.
The court of appeals in Sears v. Bowen, 840 F.2d 394, 20 Soc. Sec. Rep. Serv. 552, Unempl. Ins. Rep. (CCH) ¶17904 (7th Cir. 1988), held that a report that a claimant for social security disability based on glaucoma had many severe psychiatric problems was material for purposes of remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), stating that, while the district court found the psychiatric report inconsistent with other evidence because it characterized the claimant's mental impairments as long–standing, although the claimant had been gainfully employed in the past, the court of appeals saw no inconsistency, since a claimant might have periods of psychiatric episodes, as well as periods of remission, yet still be classified as disabled under the governing regulations. The court noted that, while it was true that the report detailed severe and chronic psychiatric problems, it did not indicate that the claimant was disabled during the relevant time period, and the fact that the doctor stated that the impairment had lasted or was likely to last 12 months was of little importance because the statement was made more than a year after the administrative hearing. The court stated that it was very probable that the claimant could, with the aid of competent counsel, gather evidence that would establish the severity of his impairments for the relevant time periods, and there was little doubt that the claimant's mental impairments were of long standing, even if they may not have been so severe as to render him disabled since 1980. Even if a timing problem existed, the court concluded that under the admittedly unusual circumstances of the case the combination of long–standing psychiatric problems, which may alone be disabling, and important biographical information about the claimant, none of which had been before the Commissioner, was material.
The court in Creighton v. Sullivan, 798 F. Supp. 1359, 38 Soc. Sec. Rep. Serv. 691, Unempl. Ins. Rep. (CCH) ¶17232A (N.D. Ind. 1992), held, in the case of an applicant for social security disability benefits who originally sought benefits due to back problems and asthma, that a psychiatric report indicating that the applicant was affected with a psychiatric disease known as somatoform pain disorder was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because there was a reasonable possibility that the Commissioner would find the applicant disabled based on the combination of mental and physical impairments.
The court in Humphrey v. Shalala, 1993 WL 313053 (N.D. Ill. 1993), held that a psychological evaluation of an applicant for social security disability benefits based on a knee injury, which diagnosed the applicant as suffering from clinically significant depression, a psychiatric condition called somaticization in which an individual does not feel anxiety, depression, disappointment, psychological conflict, etc. but becomes overly concerned about his physical health, was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). Noting that the physician treating the applicant had stated that the applicant was suffering from depression and anxiety from 1986 to 1989 and that his impairment was so great that he was taking Xanax, an anti–anxiety medication, the court stated that the results of the new psychological evaluation were relevant to the applicant's psychological condition during the period for which benefits were denied and that the administrative law judge had not considered the possibility that a psychological impairment may also have contributed to the applicant's overall level of disability. Accordingly, the court found that there was a reasonable possibility that the new evidence would change the Commissioner's decision, especially in light of the fact that social security regulations require the administrative law judge to consider the combined effects of both physical and psychological impairments when making a disability determination.
In Crozier v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶17810, 1987 WL 123935 (D. Kan. 1987), the court held material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) a psychological evaluation, prepared more than a year after the denial of the claim, of an applicant who applied for social security disability benefits because she was always very tired, responded well to medication for hypothyroidism, and had total closure of the right coronary artery and left ventricular vessels, because the evaluation concluded (1) that the applicant was totally disabled by mid–1975 from psychological disorders: organic personality syndrome, recurrent major depression, and somatization disorder, (2) that the applicant had numerous psychological problems that the Commissioner would characterize as nonexertional impairments precluding application of the grid, and (3) that the evaluation explained the large gaps in the current medical record, since the applicant's psychological disorders prevented her from revealing her symptoms to doctors.
The court in Wilson v. Sullivan, 1989 WL 134925 (D. Kan. 1989), held that a diagnosis by a psychiatrist who, 3 months after the denial of the applicant's claim, examined an applicant for social security disability benefits based on arthritis, obesity, reduced vision, and diabetes mellitus, that the applicant had chronic depression controllable with medication, a low level of intelligence, and a personality disorder characterized by pathological dependence, and because of the latter 2 conditions was a person who functioned at an extremely low level, was extremely limited in her ability to carry out daily activities, to maintain social functioning, and to concentrate on her tasks in the workplace, was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). While the government argued that the psychiatric diagnosis was not material because it was dated after the date of the administrative law judge's decision, the court stated that there was nothing in the report to suggest that the applicant's mental impairment occurred or began in the 3 months after the administrative law judge's decision. Nor, the court added, did the record contain any mention of an event that would explain a sudden depression or personality disorder, so the court had no reason to believe that the applicant's condition was a subsequent deterioration of a previous non–disabling condition. Rather, the court stated that the record of the administrative proceedings suggested that the administrative law judge overlooked the applicant's claims of a mental impairment, since he did not order a consultative psychiatric examination, although the applicant testified that only a month before the hearing she had been seen at a mental health center because she had wanted to commit suicide, that she was very forgetful, and that she had difficulty learning and even understanding people.
In Milano v. Bowen, 809 F.2d 763, 16 Soc. Sec. Rep. Serv. 158, Unempl. Ins. Rep. (CCH) ¶17159 (11th Cir. 1987), the court held that a report by a clinical psychologist that the claimant needed intensive out–patient psychotherapy, vocational rehabilitation, and general health care and that he could not at the present time be employed, submitted after the administrative law judge denied a claim based on physical ailments, was material for purposes of a remand of the case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that there was a reasonable possibility that the report would have materially affected the administrative decision.

§ 25[b] Psychiatric illnesses—Held not material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of psychiatric problems considered, held that such evidence was not material for purposes the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding, where—
—a psychological report prepared approximately a year after the denial of the applicant's claim for benefits stated that the applicant had "dysthymic disorder with signs of organicity" and "mild mental retardation" but there was no basis for concluding, as the report did, that the applicant must have been depressed for 4 or 5 years. Rosado v. Sullivan, 805 F. Supp. 147, 39 Soc. Sec. Rep. Serv. 483 (S.D.N.Y. 1992).
—there was no showing that there was a reasonable possibility that additional evidence in the form of a report by a physician concluding that the applicant suffered from post–traumatic stress disorder, a report from a social worker who treated the applicant for post–traumatic stress disorder, and a residual functional capacity evaluation made by the social worker would result in the allowance of the claim. Gonzalez v. Chater, 1996 WL 442798 (S.D.N.Y. 1996).
—a letter prepared approximately 2 years after the denial of the applicant's claim stated that the applicant was diagnosed as schizoaffective disorder–bipolar type but made no suggestion that this diagnosis applied to the time period for which benefits were denied. Estevez v. Apfel, 1998 WL 872410 (S.D.N.Y. 1998).
—a letter from a psychologist stated that the claimant, who originally applied for benefits based on alleged chronic back pain, a club foot, and postpolio syndrome, was depressed but did not assert that the claimant was disabled or limited in any way because of her depression prior to the expiration of her insured status. Fagg v. Chater, 106 F.3d 390 (4th Cir. 1997), (publication and use restricted).
—a psychological evaluation, prepared more than 3 years after the administrative law judge's ruling, noted that the applicant's condition started to deteriorate over the previous few years and recent life events, specifically her increased physical complaints and degenerative cognitive functioning, had significantly exacerbated her current condition, but did not opine as to whether the applicant's psychological problems existed 3 years earlier. Brown v. Sullivan, 1990 WL 103605 (N.D. Ill. 1990).
—a Medical Source Statement–Mental and an accompanying doctor's report based on an evaluation conducted 22 months after the denial of applicant's claim only related to the plaintiff's condition at the time benefits were denied by way of plaintiff's subjective statements and referral to a report considered and reflected in the original decision. Jackson v. Apfel, 1998 WL 853277 (8th Cir. 1998).
—the statement of a psychologist whom the applicant was seeing that the applicant was suffering from a dysthymic disorder did not address the central issue in dispute—whether the applicant could work as a beauty operator or in other light work. Padgett v. Sullivan, 933 F.2d 1015 (9th Cir. 1991) (publication and use restricted).
—there was little difference between a psychological evaluation of the applicant prior to the scheduled date of the administrative hearing stating that she suffered from "adjustment disorder with depressed mood" and her evaluation a year later after missing the hearing —"schizophrenic disorder, or anxiety disorder in a paranoid personality." Silva v. Bowen, Unempl. Ins. Rep. (CCH) ¶14293A, 1988 WL 252078 (N.D. Cal. 1988).
The court in MacKinnon v. Bowen, Unempl. Ins. Rep. (CCH) ¶14639A, 1989 WL 270105 (D. Mass. 1989), held immaterial for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) a psychiatrist's report that an applicant for social security benefits based upon a variety of physical ailments and depression due to gender dysphoria arising out of her condition as a transsexual required treatment by medication and that her depression continued to interfere markedly with her ability to work. The court noted that the administrative law judge considered at least 6 opinions about the applicant's depression, including the opinion of the applicant's psychologist, who, with the exception of prescribing medication, expressed essentially the same opinion as the letter that the applicant sought to have introduced as additional evidence. While the letter sought to be admitted might have buttressed the view of the applicant's psychologist that the applicant's depression disabled her from working, the court did not believe the psychiatrist's post–hoc evaluation of the applicant would have materially altered the administrative law judge's decision. The court stated that the fact that the report indicated that the applicant required drug treatment did not tip the balance, since the fact that the applicant was responding well to the anti–depressant drugs supported the administrative law judge's finding that the applicant's depression did not stop her from working.
The court in Sepulveda v. Callahan, 2 F. Supp. 2d 212, 57 Soc. Sec. Rep. Serv. 335 (D.P.R. 1998), held that the opinion of the claimant's doctor that she suffered from mental conditions prior to the date when the period of insurability elapsed was not material evidence, as would support remand of the decision of the administrative law judge denying her application for disability benefits. The court stated that remand is indicated only if the Commissioner's decision "might reasonably have been different" had the proposed new evidence been considered. The court noted that there was other evidence of plaintiff's mental health, already in the record, which indicated that plaintiff suffered from only a mild, non–disabling mental condition. Moreover, the court noted that the doctor did not offer any contemporaneous office notes to support his conclusion. This lack of support, the court held, in addition to the fact that the doctor never referred the applicant for further psychiatric evaluation during the period prior to the expiration of her insured status, weighed in favor of a finding of non–materiality.
In Pate v. Heckler, 777 F.2d 1023, 11 Soc. Sec. Rep. Serv. 285, Unempl. Ins. Rep. (CCH) ¶16546 (5th Cir. 1985), the court of appeals held that the district court did not err in refusing to remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) the case of a woman who sought social security benefits on the basis of mental illness where the new evidence consisted of a memo indicating that the claimant had seen a psychiatrist 11 times between mid–1982 and mid–1983, a psychological report, and an IQ evaluation. The court found that there was not a reasonable possibility that the evidence would have caused the Commissioner to make a different determination, observing with respect to the memo from the office of the applicant's psychiatrist showed that the applicant had continued to receive treatment. The court found this consistent with the administrative law judge's reasoning that the applicant could withstand stress and may still have relapses but was able to function well most of the time. With respect to the psychological report, the court stated that (1) it did little more than confirm the psychiatrist's analysis; (2) though it found schizoid and withdrawal tendencies, it found the claimant was not "currently overtly psychotic"; (3) it did not purport to evaluate the claimant's ability to function in a work setting; and (4) it discussed the claimant's condition as it stood after the time period that the Commissioner was considering, and evidence of the deterioration of a condition that occurred after the Commissioner's decision is not a basis for a remand.
The court in Haywood v. Sullivan, 888 F.2d 1463, 27 Soc. Sec. Rep. Serv. 524, Unempl. Ins. Rep. (CCH) ¶15106A (5th Cir. 1989), held that a psychiatric diagnosis made 2 years after a hearing before the administrative law judge was not grounds for a remand to the Commissioner of Social Security pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) because the evidence, while new, ran into problems with the "materiality" prong of the conditions for remand under sentence six, since it is implicit in the materiality requirement that the new evidence relate to the time period for which benefits were denied and that it not concern evidence of a later–acquired disability or of the subsequent deterioration of a previously non– disabling condition. In the instant case, the court remarked that the report offered insight into the claimant's recent mental health and a social worker's assessment of the claimant's then–current functional status but did not address the claimant's condition at the time of her disability application (June 1986) or at the time of her hearing (June 1987) and quoted the claimant as saying that her condition had deteriorated in the last 6 months, so the evidence was not material.
The court in Haney v. Shalala, 1994 WL 247207 (E.D. La. 1994), held that additional medical evidence submitted by an applicant for social security disability benefits was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)), where the administrative law judge had found that the applicant had a severe impairment of atypical psychosis that was in fair remission with some residual depression and substance abuse of alcohol and drugs that was in remission. The court noted that the additional evidence was based on an examination of the applicant 2 1/2 years after the alleged onset date of the applicant's disability, did not address the applicant's condition either at the time that he filed his disability application in February 1991 or at the time of his administrative hearing in January 1992, and was cumulative of other evidence presented to the administrative law judge hearing, so it was not likely that the report would have changed the Commissioner's determination. The court noted that the report of the Commissioner's consulting physician disclosed that the applicant had had concentration problems and that the record before the administrative law judge was replete with physicians' reports that diagnosed the applicant as suffering from paranoid schizophrenia.
The court in Johnson v. Heckler, 765 F.2d 145 (6th Cir. 1985) (publication and use restricted), held that a claimant for disability benefits was not entitled to a remand pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) because of new evidence consisting of medical records from a hospital concerning a three–week hospitalization in which the claimant was diagnosed as having lumbar radiculopathy and deteriorating depression and dysthymic disorder. The court of appeals stated that, while the new evidence demonstrated that the claimant suffered from depression, it also disclosed that the depression was neither severe nor continuous, and observed that the district court concluded that the records, on their face, did not establish, or even suggest a possibility of, a mental impairment that would create an inability on the claimant's part to engage in any substantial gainful activity and that could be expected to last for a continuous period of not less than 12 months so as to entitle the plaintiff to social security disability benefits. The claimant therefore had failed to prove that the new evidence would have affected the administrative determination, and the court denied the motion for remand since there was no reasonable possibility that the new evidence would have changed the Commissioner's decision.
The court in Markosyan v. Sullivan, 933 F.2d 1014 (9th Cir. 1991) (publication and use restricted), held that an applicant for social security disability benefits based on boredom, nervousness, depression, difficulty sleeping, poor memory and concentration, high emotional levels, headaches, and inability to care for himself had not established that an additional medical report and 3 affidavits from neighbors in Armenia were material for purposes of the sixth sentence of § 205(g) of the Commissioner of Social Security (42 U.S.C.A. § 405(g)). At the hearing the applicant had relied on the opinion of his treating physician, a general practitioner, that the applicant was completely disabled due to psychiatric conditions, and on the opinion of a psychiatrist, based on the applicant's low IQ test scores, that the applicant was permanently disabled due to mild mental retardation and mixed organic brain. The court stated that a new medical report offered by the applicant broke no new ground and was less thorough than reports already in the record, and that the affidavits were similarly cumulative of evidence previously considered by the administrative law judge.
The court in Gorrell v. Chater, 1997 WL 159049 (D. Kan. 1997), held that physicians' letters diagnosing a woman who had applied for social security disability benefits based on injury to her lower back, high blood pressure, pain in her back and right leg, inability to work or stand very long, inability to lift significant weight, and asthma as having a mood disorder stemming from her medical condition and concluding that her mental condition rendered her unable to maintain continued employment were not material for purposes of the sixth sentence § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that materiality requires that the new evidence relate to the time period for which benefits were denied, and the letters discussing the claimant's mental condition were not material to her alleged physical disability, as they were, at best, evidence of a later–acquired disability or of the subsequent deterioration of the previously non–disabling condition. The court stated that the fact that the claimant's condition might have deteriorated did not demonstrate that her condition at the time in question was otherwise than as found at the administrative hearing, and if the claimant's mental heath had deteriorated her appropriate remedy was to filed a new claim for benefits as of the date that the condition became a disabling impairment.

CUMULATIVE SUPPLEMENT

Cases:

Remand for consideration of alleged new and material evidence was not warranted, in social security disability benefits case; three psychiatric reports were not material inasmuch as they would not have led to a different result, since they supported the ALJ's findings, and a psychiatric report from three other physicians were prepared almost ten months after the closing period of the ALJ's inquiry and thus did not report on claimant's condition during the relevant time period. Catrain v. Barnhart, 325 F. Supp. 2d 183 (E.D. N.Y. 2004).
Remand for consideration of new evidence was not warranted, in social security supplemental security income (SSI) benefits case; proposed evidence was not material because it involved mental evaluations that were obtained long after denial of claimant's application, and there was no good cause for failing to present the new evidence to the ALJ. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). McCraney v. Commissioner of Social Sec., 68 Fed. Appx. 570 (6th Cir. 2003).

[Top of Section]


[END OF SUPPLEMENT]


§ 26[a] Neurological injuries—Held material

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of neurological injury considered, held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Hawkins for Reilly v. Heckler, 631 F. Supp. 711, 13 Soc. Sec. Rep. Serv. 616, Unempl. Ins. Rep. (CCH) ¶16867 (D.N.J. 1985), held material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) recently obtained medical evidence in the form of psychiatric reports. One of the reports was from a psychiatrist and stated that an applicant for child insurance benefits had apparently sustained a birth injury causing a syndrome either similar to, or consistent with, cerebral palsy, that the most likely explanation for the applicant's intellectual and emotional impairment stemmed from either intrauterine damage or damage to the brain at the time of birth, probably due to a lack of oxygen, and that the applicant could not hold the simplest of jobs then or any time during the prior 2 decades. The other report was from a psychologist and stated that the applicant was disabled long before her 22nd birthday and had never been able to handle adequately any sort of competitive job requiring output or reliability. The court observed that both reports contained relevant and probative evidence that manifested a clear probability that the applicant's then–current state of impairment existed prior to her 22nd birthday, noting that the administrative law judge had excluded any medical evidence after the applicant's 22nd birthday, which was 14 years before the date of the hearing.
The court in Woodard v. Bowen, 1987 WL 8988 (N.D. Ill. 1987), related reference, 1990 WL 114324 (N.D. Ill. 1990), held, in the case of an applicant for social security disability tests based on right knee sprain, hypertensive cardiovascular disease, hiatal hernia, and diverticulosis, that a psychological evaluation of the applicant as having low intelligence (IQ in the bottom 3% of persons his age), symptoms of "organic brain syndrome," a positive test" for brain damage, and marked depression were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), although the testing was done in 1986 and the relevant date for establishing disability was 1982. While the government argued that the report was not relevant to the applicant's claim because of the time between 1982 and 1986, the court stated that the new evidence was material because it was reasonably possible that the new evidence would have affected the prior administrative determination. Evidence of organic brain syndrome in 1986, a degenerative condition, was reasonably proximate to the relevant 1982 period, and was, therefore, material to a determination of the applicant's condition in 1982 and before.
In Milbrook v. Sullivan, 1993 WL 78723 (N.D. Ill. 1993), the court stated that evidence of psychological testing conducted after the administrative law judge denied a request for social security disability although finding the applicant was severely impaired from cerebral palsy, had an IQ of 69, mental retardation, organic mental disorder, and dysthymia was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since it could have changed the outcome of the administrative proceeding.
See Jackson v. Sullivan, 1990 WL 171015 (D. Kan. 1990), in which the court held that the records of the hospitalization of an applicant for social security disability benefits based on hypertensive cardiovascular disease with a history of a cerebrovascular accident with left hemiplegia and congestive cardiomyopathy, 2 months after the administrative law judge denied the applicant's claim, were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).

§ 26[b] Neurological injuries—Held not material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of neurological injury considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Dargan on Behalf of Dargan v. Chater, 54 F.3d 772 (4th Cir. 1995) (publication and use restricted), the court held that 3 letters by the treating physician of a child applicant for supplemental security income benefits based on cerebral palsy, vision and hearing problems, dental problems, a heart murmur, growths on her neck, a stiff right side, and a skin rash, stating that the applicant was "totally" and "permanently" disabled due to spastic cerebral palsy, had an abnormal gait walking with her knees in semi–flexion, and, due to recurrent episodes of inflammation in her hip joints, had "difficulty in getting about," were not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since they were conclusory, contradictory, and not significant enough to affect the Commissioner's decision. The court noted that the fact that the applicant suffered from cerebral palsy was well documented in the record and was extensively evaluated by the administrative law judge, as was the applicant's ability to walk and run, which was noted in the record by several doctors, including the treating physician and the applicant's mother, and that the treating physician did not explain how his finding that the applicant had "no orthopedic problems" could be reconciled with the applicant's current condition, since there was no allegation that the child's condition had significantly worsened or that her ability to walk or run had decreased. The court observed that, even assuming the child had an abnormal gait and difficulty "getting about," the letters did not support the conclusion that the child could not function at an age–appropriate level, since they did not show how and to what extent the child's abilities, activities, and development were curtailed.
The court in Kilpatrick v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶16147, 1983 WL 116153 (D. Md. 1983), held that additional medical evidence submitted to the court by an applicant for social security disability benefits based on seizure disorder was essentially cumulative of evidence already in the record, did not appear necessary for the development of the facts of the claim, and created little possibility that the Commissioner of Social Security might change the conclusions or order additional evidence, so the evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court in Roth v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶16997, 1986 WL 83423 (N.D. Ohio 1986), held that additional evidence in the form of a neurological examination of an applicant for social security disability benefits based on blindness of the left eye, limited field of vision in right eye, removal of the pituitary gland, thyroid problems, and diabetes was not material for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), when the controlling question before the court was whether the applicant was disabled prior to September 30, 1981. The court stated that there was no evidence that a relatively current exam would be probative of the applicant's condition 5 years earlier, particularly since her treating physician did not conclude at the time of her earlier complaints that such an examination was necessary, and at the evidentiary hearing her counsel briefly touched on the question of the applicant's neurological condition during the relevant period in his examination of the medical advisor without any indication that the doctor believed that the medical records would indicate that any significant problem existed.
The court in B.L.D. v. Chater, 1997 WL 102497 (W.D. Mo. 1997), declined to remand a claim for social security disability benefits on behalf of an epileptic child pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) on the basis of medical reports dated September 16, 1993, and October 14, 1994, where the hearing before the administrative law judge was held on November 16, 1993, because the reports were not material. The court stated that the reports were not particularly probative of the claimant's condition, in part because one of them discussed the claimant's mother more than it discussed the claimant, and they did not support the checklist that their author originally completed for the benefit of the administrative law judge. The court concluded that to the extent that the memos revealed anything about the claimant's condition there was no likelihood that they would have changed the Commissioner's decision.
In Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 16 Soc. Sec. Rep. Serv. 343, Unempl. Ins. Rep. (CCH) ¶17207 (9th Cir. 1987), the court held that 2 psychological evaluations of an applicant for social security disability and supplemental security income benefits based on a back condition, which suggested that the applicant had organic brain disorder, manifested by memory loss and speech problems, were not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court distinguished Burton v. Heckler, 724 F.2d 1415, 3 Soc. Sec. Rep. Serv. 383 (9th Cir. 1984), in which the court found that evidence of the deterioration in the applicant's mental condition as a result of long–term alcohol addiction was material because the administrative law judge had considered the applicant's psychological condition linked to alcoholism at the hearing, so evidence of later mental deterioration was probative of the applicant's condition at the hearing, while the mental condition of the applicant in the instant case was not significantly at issue at the hearing. The court acknowledged that the applicant reported some loss of concentration, depression, and anxiety as a result of his back condition, but his complaint did not, the court stated, suggest that he suffered from a disabling mental impairment at the time of the hearing such as that caused by the long–term alcoholism in Burton. Accordingly, the court stated that the new evidence indicated, at most, mental deterioration after the hearing, which would be material to a new application but not probative of the applicant's condition at the hearing.

CUMULATIVE SUPPLEMENT

Cases:

New evidence in social security disability benefits case, consisting of a functional capacity assessment prepared by claimant's former treating neurologist, did not warrant sentence six remand; evidence was not material, since neurologist offered no explanation of the reason his opinion of claimant's functional capacity had changed, and it was not new, since claimant could have requested a second assessment by the neurologist at an earlier time. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Templeton v. Commissioner of Social Sec., 215 Fed. Appx. 458, 2007 FED App. 0101N (6th Cir. 2007), petition for cert. filed (U.S. May 9, 2007).

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§ 27[a] Low mental functioning—Held material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of low mental function not resulting from neurological injury considered, held that the evidence was material evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Felder v. Sullivan, 1992 WL 328848 (E.D. Pa. 1992), held that a comprehensive psychological exam that indicated that the applicant's mental capacities were more severely limited than earlier evidence had shown, since it revealed that the applicant was mentally retarded under social security regulations, was unable to communicate well, and could not cope with printed matter, was material for purposes of sixth sentence of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the new evidence, considered with the physical limitations found by the Commissioner (inability to perform work involving prolonged walking, heavy lifting, or frequent bending), indicated that the applicant would not be able to perform basic work as defined by social security regulations.
The court, after reviewing all of the evidence before the Appeals Council, in Lavin v. Callahan, 55 Soc. Sec. Rep. Serv. 596, 1998 WL 142451 (N.D. Ill. 1998), held that the Appeals Council erred in stating that all of the new evidence related to the plaintiff's condition after the expiration of his insured status. The court found that, under the standards of 42 U.S.C.A. § 405(g), new evidence is material if it exhibits a reasonable possibility that it would change the outcome. The court found that the new evidence, a letter from the applicant's sister, met this standard, since her statements, indicating that the applicant functioned as mentally retarded, applied to the relevant period and might have altered the Commissioner's decision.
The court in Roe v. Shalala, 1995 WL 27530 (N.D. Cal. 1995), held that a neuropsychological evaluation of a claimant, which concluded that the claimant was disabled from working due to mental slowness, difficulty processing information of any complexity whatsoever, lack of ability to sustain attention over time, and memory problems and that the patient's disability would last at least 1 year, was material for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), where the administrative law judge denied the claimant's application for social security supplemental security income benefits due to hypertension, asthma, hypothyroidism, and partial right eye blindness, since a reasonable possibility existed that the administrative law judge would have ruled differently had he been presented with the report's conclusion. The court stated that the Commissioner's argument that the report was not material because the claimant's mental condition was not at issue in the proceeding below had been rejected in other circuits and ignored the possibility that the administrative law judge would find the claimant disabled based on the combination of mental and physical impairments.
In Williams v. Sullivan, 1989 WL 151920 (D. Kan. 1989), amendment denied, 1990 WL 26029 (D. Kan. 1990), the court held that a report by a licensed psychologist and a board–certified vocational expert that an applicant for social security disability benefits, who had been a foreign car mechanic and who sought disability benefits due to hip and lower back pain and subsequently had his entire left hip replaced, was functionally illiterate and could not obtain employment that required writing simple sentences or performing simple mathematical equations was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the administrative law judge had concluded that the applicant could perform sedentary work with a sit/stand option, although noting that the applicant had a limited education and was questionably literate, and that his skills as a mechanic were not transferable to sedentary work.

CUMULATIVE SUPPLEMENT

Cases:

Substantial evidence did not support ALJ's rejection at benefits hearing of treating physician's opinion that supplemental security income (SSI) benefits claimant could not work, and thus remand for further review was warranted; ALJ should have recontacted treating physician before rendering decision, especially in light of fact that illiterate claimant was representing herself at hearing. 20 C.F.R. § 404.1527. Earp v. Commissioner of Social Security Admin., 168 F. Supp. 2d 628 (E.D. Tex. 2001).

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§ 27[b] Low mental functioning—Held not material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding, to have evidence of low mental function not resulting from neurologic damage considered, held that such evidence was not material for purposes of § 205(g).
The court in Rosado v. Sullivan, 805 F. Supp. 147, 39 Soc. Sec. Rep. Serv. 483 (S.D.N.Y. 1992), held, in the case of an applicant for social security disability benefits due to diabetes, high blood pressure, and poor vision, that new evidence presented by the applicant in the form of a psychological report prepared approximately a year after the denial of the applicant's claim for benefits, and stating that the applicant had "mild mental retardation" that related to the period for which benefits were sought, was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the report's conclusion that the applicant was retarded was tenuous, based as it was on one examination, taken 2 years later, when the applicant 64 years old, the results of which were themselves only barely and partly in the relevant range of scores. Under these circumstances, the court stated that the report, solicited by the applicant's counsel just prior to filing the applicant's brief, was not material. The court saw this as especially so in view of the absence of evidence in the existing record indicating any significant limitation on the applicant's mental ability to perform work–related functions, since the record showed that the applicant, even assuming a low intelligence level, was able to carry on the basic functions needed to work and to perform all the daily tasks of living. Had such "new" evidence been presented to the administrative law judge 2 years after the applicant's hearing, there was not a "reasonable possibility" that the administrative law judge would have reached a different result on the applicant's disability during the relevant period.
The court, in Maestre v. Appel, 1998 WL 477950 (S.D.N.Y. 1998), held that a report indicating that the applicant suffered from a depressive disorder, a cognitive disorder, and mild mental retardation was not material for purposes of remand under the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that for the proffered evidence to be material it had to be both relevant to the claimant's condition during the time period for which benefits were denied and probative. The court held that the report failed to meet the materiality prong because it contained no evidence of a disability within the relevant period, as the report was issued nearly 2 years after the administrative law judge's decision and made no reference either to the applicant's ability to perform repetitive tasks or to the applicant's functional abilities at the time of his application.
The court in Haney v. Shalala, 1994 WL 247207 (E.D. La. 1994), held that a psychiatric evaluation of a claimant for social security disability benefits, which was performed after the administrative law judge's denial of the claimant's application, while new for purposes of the sixth sentence of § 205(g) ) of the Social Security Act (42 U.S.C.A. § 405(g)), was not material for purposes of the sixth sentence, since it was not likely to change the Commissioner's decision that the claimant was not disabled. The court noted that the report in question was prepared approximately 2 1/2 years after the alleged onset date of the applicant's disability and did not address the claimant's condition either at the time he filed his disability application or at the time of his administrative hearing. In addition, the court noted that the report was cumulative of other evidence presented at the administrative hearing, since the Commissioner's consulting physician disclosed that the claimant had concentration problems and the record was replete with physicians' reports that diagnosed the claimant as suffering from paranoid schizophrenia.
The court in Lofton by Chessor v. Shalala, Unempl. Ins. Rep. (CCH) ¶17736A, 1993 WL 650841 (W.D. Tenn. 1993), held that additional evidence concerning the treatment of a child, for whom supplemental security income benefits were sought on the basis of the child's difficulties learning, reflecting the treatment of the child for depression beginning on October 13, 1992, a date after the January 30, 1992, administrative hearing, was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since there was no assertion that the evidence reflected a condition in existence at the time of the hearing. While the applicant also asserted that the new evidence, consisting of reports of the applicant's "limited intellectual capacity," showed a condition that could be interpreted as reflecting a condition in existence at the time of the hearing, the court stated that the applicant had not met the burden of showing a reasonable probability that the administrative law judge would have decided the case differently had the evidence been considered, since the record showed that the administrative law judge had considered the applicant's limited intellectual capacity but found that it was not an impairment of comparable severity to that which would disable an adult.
comment The court used the "reasonable probability" standard for determining materiality.
The court of appeals in Guerrero v. Bowen, 865 F.2d 264 (9th Cir. 1988), affirmed the district court's refusal to remand pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), stating that to be material new evidence must bear directly and substantially on the matter at issue, and there must be a reasonable possibility that the new evidence would have changed the outcome if it had been before the Commissioner, and in the instant case the evidence was not material because the issue of the effect of the claimant's difficulty in concentrating on her ability to work was addressed by the vocational expert who testified at the administrative hearing in 1986. The court noted that the expert had testified at the hearing that a hypothetical claimant with the appellant's physical impairments in addition to a psychiatric condition limiting her to low–stress work with no deadlines and only simple one– or two–step tasks would be able to work in entry–level jobs with simple and repetitive tasks, and, while the testimony did not focus specifically on the question of the claimant's ability to work in spite of deficiencies in concentration that often prevented her from completing her work, it did assume a psychiatric condition that approximated the applicant's limitations. In contrast the new opinion offered was based on an isolated finding of the Appeals Council—that the applicant "often" experienced an inability to concentrate—and on a definition of the word "often" that differed from the Commissioner's use of the word. The new evidence, the court stated, was not material because it did not present a reasonable possibility that the decision would have been changed, since a psychiatrist had already testified that poor concentration was not likely to affect the claimant's ability to perform the occupations he had identified.
See Markosyan v. Sullivan, 933 F.2d 1014 (9th Cir. 1991) (publication and use restricted), in which the court held that an applicant for social security disability benefits based on boredom, nervousness, depression, difficulty sleeping, poor memory and concentration, high emotional levels, headaches, and inability to care for himself had not established that an additional medical report and 3 affidavits from neighbors in Armenia were material for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)).

CUMULATIVE SUPPLEMENT

Cases:

Claimant for social security supplemental security income benefits based on HIV, chronic pain, insomnia, and learning disability failed to show that reports from psychotherapist and doctor, which were made after final decision of Commissioner of Social Security denying benefits, met statutory materiality requirement of relevance to claimant's condition during time period for which benefits were denied, so as to be ground for remand to Commissioner for taking of additional evidence; reports were based on assessments of claimant's limitations made after period for which benefits were denied, and contemporaneous records of treating medical providers showed claimant did not suffer from mental impairment that would affect his ability to work during period in question. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Roman v. Barnhart, 477 F. Supp. 2d 587 (S.D. N.Y. 2007).

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§ 28[a] Heart disease—Held material

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding, in order to have evidence of heart problems considered, held such evidence was material for purposes of § 205(g).
The court in Liles v. Chater, Unempl. Ins. Rep. (CCH) ¶14691, 1995 WL 523625 (D.N.H. 1995), an action for fees under the Equal Access to Justice Act, noted that it had previously remanded pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) the claim of an applicant for social security disability benefits based on heart disease, which was denied by an administrative law judge in October 1992 and then the applicant underwent cardiac catheterization in January 1993 and a two–vessel coronary artery bypass in February 1993, and that after the remand the administrative law judge awarded the applicant disability benefits. Nonetheless, the court declined to award the applicant attorney's fees, stating that the fact that the administrative law judge ultimately found disability to exist did not mean that the government was not substantially justified in opposing remand on the grounds that the applicant's condition had deteriorated after the administrative law judge's initial decision, so that the applicant should have filed a new claim.
The court in Travis v. Sullivan, 985 F.2d 919, 40 Soc. Sec. Rep. Serv. 106, Unempl. Ins. Rep. (CCH) ¶17257A (7th Cir. 1993), stated that 3 additional medical reports performed after the claimant's application for social security disability benefits had been administratively denied—a Holter Monitoring report; an exercise stress test, and an echocardiographic report—were material for purposes the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court, in Agesyan v. Apfel, 133 F.3d 925 (9th Cir. 1998),[FN8] held that pursuant to 42 U.S.C.A. § 405(g) the claimant's new evidence of a degenerative heart condition involving the claimant's myocardial infarction and four–way bypass 21 months after the earlier evaluation was material evidence of his condition at the time of the evaluation and thus probative of his condition at the time of his original evaluation. It was therefore resonable that the new evidence would have changed the outcome of the hearing had it been before the Commissioner.
The court in Graham v. Chater, 74 F.3d 1249 (10th Cir. 1995), held that the medical records of an applicant for social security disability benefits based on severe multi–vessel coronary artery disease, relating to the treatment of the applicant approximately 5 months after an administrative law judge denied his claim, were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because they contained the applicant's continuing allegations of pain, including his belief that his pain had become worse in the last 6 to 8 months, which included time before the administrative law judge's decision. The court reasoned that the severity of the applicant's condition was evidence that the condition did not become disabling only after the administrative law judge's decision, so the records were material to the applicant's condition prior to the decision and particularly relevant to his claim that he was disabled by shortness of breath and pain.
comment The court held, however, that evidence relating to the condition of the applicant's herniated disc approximately 1 year after the administrative law judge's decision was not material since there was no evidence of a herniated disc prior to the decision.
The court in Jackson v. Sullivan, 1990 WL 171015 (D. Kan. 1990), held that records of the hospitalization of an applicant for social security disability benefits on hypertensive cardiovascular disease with a history of a cerebrovascular accident with left hemiplegia and congestive cardiomyopathy 2 months after the administrative law judge denied the applicant's claim were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), stating that, while the Commissioner considered the date of the hospital records to be the sole determining factor for materiality, this argument placed undue significance on the passing of several months and took an overly simplistic and generalized approach to a matter that must be decided on a case–by–case basis. The court in the instant case found nothing to suggest that the applicant's disabling condition began or was aggravated only after the administrative law judge's decision, as the hospital records reflected a continuation of many of the same symptoms of chest pain and weakness in the applicant's left side attributable to the applicant's prior cerebrovascular accident, and, more importantly, a CAT scan of the brain was performed for the first time, which showed a large brain loss from a prior cerebrovascular accident, and the only such event established in the record was the stroke that the applicant suffered in April 1987. Noting that the administrative law judge rejected as not credible the applicant's testimony concerning the severity of his chest pains and shortness of breath, relying in part on the fact that the applicant sought medical treatment only once after June 1987 and that this treatment in February 1988 was caused by his failure to take his medication, the court stated that the evidence of additional hospitalizations substantially undercut the administrative law judge's finding on credibility. The court noted further that hospital records from February and July showed that the applicant stated during each hospitalization that he had some difficulty in breathing and that he was admitted in July for shortness of breath. Accordingly, it was, the court ruled, reasonably possible that the Commissioner would have found the applicant's testimony more credible had the Commissioner known of the additional hospitalizations, and the court ruled that on remand the administrative law judge should evaluate whether the applicant's complaints of pain were consistent with the impairment as further revealed in these additional medical records and consider additional testing of the applicant's difficulties with concentration and memory in light of the evidence showing that the applicant suffered a large brain loss from the prior cerebrovascular accident and whether the medications being taken by the applicant for his hypertension and other conditions could cause the dizziness and sleepiness that the applicant had mentioned.
The court in Jackson v. Sullivan, 1991 WL 12992 (D. Kan. 1991), held that an applicant for social security disability benefits who was terminated from her employment in March 1981 due to her inability to perform her duties as a cleaner at a hospital was entitled to a remand of her case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) on the basis of a diagnosis of "prinzmetal angina" and an opinion, rendered by her physician after the administrative law judge had issued a decision denying her claim, that the applicant was not able to do even minimal sedentary work because of her unstable angina. The court ruled that the diagnosis was material because rather than simply submitting a favorable opinion from a new expert the applicant had produced evidence that was part of a continuing diagnosis by the applicant's physician indicating that the applicant's condition, after the Commissioner's final decision, was deteriorating and required increased nitroglycerin treatment.
In Cannon v. Bowen, 858 F.2d 1541, 23 Soc. Sec. Rep. Serv. 324, Unempl. Ins. Rep. (CCH) ¶14253A (11th Cir. 1988), the court held that medical records relating to a 17–day hospitalization of a claimant for social security disability benefits due to chest pains and high blood pressure after the denial of the applicant's claim, which stated that the claimant could not return to gainful employment for an indefinite period of time, that the claimant could stand and walk less than 6 hours in an eight–hour workday, only lift and carry 5 pounds, and not push or pull leg or arm controls, that these limitations probably existed from May 1985, and that the claimant had Class III cardiac disease that resulted in marked limitation of physical activity, as well as a letter from a vocational expert stating that the claimant was physically unable to meet the requirements of sedentary or light work, were material for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since they could change the administrative result.

§ 28[b] Heart disease—Held not material

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of heart problems considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Starkweather v. Shalala, Unempl. Ins. Rep. (CCH) ¶14533B, 1995 WL 85355 (D.N.H. 1995), held not material for purposes of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)) medical evidence presented by an applicant for social security benefits showing that after the applicant's administrative hearing the applicant was admitted to the hospital and treated: (1) during September 26–30, 1993, for gastro–intestinal disturbance with bleeding diagnosed as duodenitis with hemorrhage; (2) during October 7–15, 1993, for chest and arm pain diagnosed as "acute lateral non–transmural myocardial infarction secondary to acute occlusion of circumflex Y–graft to single circumflex margin"; and (3) during January 15–18, 1994, for acute prolonged angina. The court stated that to be material new evidence must pertain to an applicant's condition at the time the administrative law judge made the disability determination and cannot concern a subsequent injury or disease. While the applicant argued that the administrative law judge might alter the conclusions if presented with this evidence because it suggested that the claimant was more seriously impaired when he applied for benefits than the administrative law judge had recognized, standing alone the new evidence was insufficient to permit a reasonable person in the administrative law judge's position to alter the decision, since there was no expert medical evidence demonstrating that the subsequent hospitalizations were new evidence of a prior disability rather than evidence of an exacerbation or recurrence of a non–disabling prior impairment. It was, the court stated, clear that a lay person is not qualified to interpret the evidence on which the applicant relied, and the applicant had not demonstrated that the evidence was material since he had not produced qualified medical opinion testimony to support the proposed interpretation.
In Arnold v. Schweiker, 571 F. Supp. 526, 3 Soc. Sec. Rep. Serv. 446, Unempl. Ins. Rep. (CCH) ¶15247 (E.D. Pa. 1983), the court held that an applicant for social security disability benefits originally based on occlusion of the left vertebral artery, degenerative changes of the cervical spine, and occasional dizziness was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) on the basis of new evidence consisting of a 3–week hospitalization in February 1982 for a "heart attack," stating that such evidence would not necessarily have led to a different conclusion as to the claimant's disability in December 1980, and that just because the Appeals Council was given notice of the existence of new evidence did not impose on it the duty of ascertaining why the evidence was not submitted by counsel for the applicant, who was granted the opportunity to do so, nor did the Appeals Council have to withdraw its decision and refrain from reconsidering the applicant's case until it obtained and reviewed the new evidence. The Commissioner had, the court stated, no obligation to seek out evidence applicants represented by counsel decided not to present.
The court in VanVolkenburg v. Secretary of Health and Human Services, 865 F.2d 262 (6th Cir. 1988) (publication and use restricted), held that 3 new medical reports—one dated March 1987 that found a recurrence of ischemic heart disease, a second dated April 1987 that revealed critical stenosis in 3 arteries, and a third report from June 1987, in which the doctor explained that the claimant would be totally disabled for at least 12 months following open heart surgery the previous month—were not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since the evidence was not material to the claimant's condition in 1985, when he ceased working due to a heart attack. The court rejected the claimant's argument that the 3 new reports were relevant because they showed that 3 doctors, in addition to the claimant's personal physician, disagreed with the conclusion of another physician that the claimant was not disabled. The court did not believe the reports supported this contention since the evidence did not relate back to the claimant's condition in 1985, and the court stated that the strongest evidence to impeach the opinion of a cardiologist that the claimant was not disabled was the testimony of the claimant's personal physician, which the administrative law judge legitimately rejected.
The court in Holley v. Chater, 931 F. Supp. 840, 51 Soc. Sec. Rep. Serv. 406, Unempl. Ins. Rep. (CCH) ¶15616B (S.D. Fla. 1996), held that new evidence offered by an applicant for social security disability benefits based on severe chronic obstructive pulmonary disease, asbestosis, emphysema, blockage of the left anterior descending artery, pneumonitis, bronchitis, shortness of breath, low back and leg pain, chest pain, pain in his knees and hands, insomnia, and fatigue, that he previously suffered coronary vessel blockage, which might account for the substantial pain he had reported since April 1987, the date from which he claimed to be disabled, was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). While the applicant argued that the new evidence supported his subjective complaints of pain and there was a reasonable probability that it would change the result in the case, the court stated that there was no reasonable probability that the evidence would change the result since while the applicant had previously suffered coronary vessel blockage, which might account for the substantial pain he reported, evidence indicated that angioplasty treatment was successful, the applicant reported that he was feeling well with no chest pain after the procedure, and medical reports, the applicant's activities of daily living, and hearing testimony all lent credence to the decision of the administrative law judge denying the applicant's claim and were unaffected by the additional evidence.

§ 29[a] Arthritis—Held material

The courts in the following cases, in which applicants for social security disability sought remand to the Commissioner of Social Security to have evidence of arthritis considered, held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Delgado v. Secretary of Health and Human Services, 43 F.3d 1456 (1st Cir. 1994) (publication and use restricted), held that medical reports that a claimant whose claim for disability benefits based on broken ankle and fractured wrists was denied was suffering from rheumatoid arthritis, that the claimant's knees, hips, and right ankle required surgery, and that the claimant was totally disabled were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court noted that the administrative law judge had held that the claimant was not disabled, although the judge found that the claimant's musculoskeletal condition was severe and that he was not able to perform his past work, because the court had found the applicant had residual functional capacity to perform the full range of light or sedentary work, reduced by limitation of motion of the right hand or wrist, and that the claimant's complaints of pain were not credible to the degree of severity alleged.
In the case of an applicant for social security disability benefits based on degenerative arthritis of cervical and lumbosacral spine, peptic ulcer disease, mitral valve prolapse with arrythmia, chronic sinusitis, and cataracts, the court in Baran v. Bowen, 710 F. Supp. 53, 25 Soc. Sec. Rep. Serv. 508, Unempl. Ins. Rep. (CCH) ¶14934A (S.D.N.Y. 1989), held that reports prepared 2 years after the date of the administrative law judge's denial of the applicant's disability claim indicating that the applicant was not able to stand and move about for long, that she could not sit for more than 4 hours a day and only 30 minutes continuously, that she could not walk or stand for more than 5 minutes continuously, as well as x–rays indicating the persistence of degenerative disease, were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since they documented the severity of the applicant's impairments and were closely linked to her impairments during the pertinent period of disability, demonstrating that the applicant's impairment had worsened, contrary to the administrative law judge's finding of improvement.
The court in Geracitano v. Callahan, 979 F. Supp. 952, 54 Soc. Sec. Rep. Serv. 580, Unempl. Ins. Rep. (CCH) ¶16022B (W.D.N.Y. 1997), held that a letter, in existence at the time of the administrative proceeding but not known about by the applicant at that time, was material evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act. The court stated that for additional evidence to be material it must be both relevant to the claimant's condition during the time period for which benefits were denied and probative. The court held that the letter was obviously material, as it contained a treating physician's report prepared prior to the second hearing that expressed an opinion that the plaintiff was disabled. The letter therefore might have changed the administrative law judge's decision.

§ 29[b] Arthritis—Held not material

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security to have evidence of arthritis considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Luckett v. Chater, 1997 WL 55948 (S.D.N.Y. 1997), held that a letter from a physician dated 2 years after the hearing before the administrative law judge was not material for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because material new evidence had to be relevant to the time period involved—February 7, 1993, the alleged onset date, to October 6, 1994, the date of the administrative law judge's decision. The court also held that evidence in the letter of a new condition—osteoarthritis of the knees and lumbosacral spine—was not material since materiality requires that the new evidence not consist of evidence of a later–acquired disability or the subsequent deterioration of the previous non–disabling condition; the record contained an x–ray of plaintiff's lumbosacral spine dated October 29, 1993, that was negative, and the claimant did not complain about, or provide evidence of, osteoarthritis during the October 1994 hearing. In addition, the court stated that the letter would not have influenced the Commissioner to decide the claimant's application differently since the physician's opinion lacked any objective laboratory or clinical basis.
The court in Barnard v. Secretary of Health and Human Services, 515 F. Supp. 690 (D. Md. 1981), held that a letter from a physician stating that the arthritis of an applicant for social security disability benefits had worsened was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since it described the applicant's worsened condition, and the only statement at all concerning the applicant's condition at the time at issue was an introductory remark that the physician had been treating the applicant for degenerative arthritis since December 1978 and that the condition was constant and progressive. The court stated that this was not an instance in which the presence of a degenerative disease established disability and, while it had been held in cases prior to the amendment to § 205(g) that in cases involving degenerative diseases later evidence may be probative of the nature of the disease and disability, in the instant case the administrative law judge had available medical reports made in January, March, and June 1979, and the applicant's testimony in May 1979 when the decision was rendered, and these reports were reasonably contemporaneous with the disability determination. The applicant's condition might have so worsened that he was disabled over 1 year after the Commissioner's final action, which would support an application for benefits covering a later time period, but, the court stated, under § 405(g) as amended the question is whether the new evidence is material to the Commissioner's disability determination, not whether there may be reason to render a different decision at the time new evidence is presented.
The court in Morgan v. Sullivan, 1993 WL 35263 (E.D. La. 1993), related reference, 1993 WL 92499 (E.D. La. 1993), held that an applicant for social security disability benefits based on osteoarthritis, hypertension, and cardiovascular disease had not established that certain medical records of arthritis created after the decision of the administrative law judge denying her claim were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)), since it is implicit in the materiality requirement that new evidence relate to the time period for which benefits were denied and that it not concern evidence of a later–acquired disability or of the subsequent deterioration of a previously non–disabling condition. While the applicant might have had some limitation of movement at the time the opinion was written, there was substantial evidence, the court stated, to support the administrative law judge's decision that the applicant had no significant limitation of motion in October 1990, when the administrative law judge wrote his decision. Accordingly, the court found the new medical records at best likely reflected the subsequent deterioration of a previously non–disabling condition and were, therefore, not material to the application for benefits before the court.
In Sizemore v. Secretary of Health and Human Services, 865 F.2d 709, 24 Soc. Sec. Rep. Serv. 262, Unempl. Ins. Rep. (CCH) ¶14481A (6th Cir. 1988), the court of appeals affirmed the district court's refusal to grant a request for a remand to the Commissioner of Social Security pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) by a claimant for social security disability benefits based on severe headaches, nausea, dizzy spells, pain in his hip and back, and arthritis because the claimant had not shown that there was a reasonable probability that the Commissioner would have reached a different disposition if presented with the new evidence. The court observed that only one of the physicians expressed the opinion that the applicant was not able to perform his previous occupation, and this conclusion was not supported by any specific laboratory test or diagnostic procedure identifying a specific physical condition that would account for the alleged inability to return to employment, so this opinion would not have been entitled to deference by the Commissioner. While the claimant argued that the proffered medical evidence was material because it demonstrated that his condition was progressively deteriorating, the court stated that it was not clear that the medical evidence would have supported that conclusion, but, even if the contention was assumed to be correct, it would nevertheless have been an insufficient reason for remanding the claim, since evidence that reflected the applicant's aggravated or deteriorated condition was not relevant because it did not demonstrate the point in time at which time the disability itself began, and reviewing courts have declined to remand disability claims for reevaluation in light of medical evidence of a deteriorated condition.
comment The court stated that if, in fact, the claimant's condition had seriously degenerated, the appropriate remedy was for the applicant to initiate a new claim for benefits as of the date that the condition worsened to the point of being a disabling impairment.
In Shaver v. Secretary of Health and Human Services, 878 F.2d 382 (6th Cir. 1989) (publication and use restricted), the court held, in the case of a man who applied for social security disability benefits because of chronic rheumatoid arthritis, that new medical evidence in the form of a two–paragraph letter from a doctor stating that the claimant was under the doctor's care, had persistent pain in both wrists, had difficulty walking, and was not able to sustain any type of gainful employment was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the doctor's conclusory statement that the applicant was disabled was not binding on the administrative law judge.
The court, in Brock v. Apfel, 1998 WL 808860 (N.D. Ill. 1998), held that additional evidence, revealing that plaintiff might have a further limitation as to her right foot due to arthritis, was not material because the additional evidence was consistent with the other evidence submitted to the administrative law judge and therefore did not constitute evidence that, if considered, could lead to a reasonable probability that the administrative law judge would have reached a different decision on the plaintiff's claims.
The court in Tolbert v. Sullivan, 966 F.2d 1459 (8th Cir. 1992), held that, since additional medical evidence showing that an applicant for social security disability benefits based on multiple injuries sustained when the applicant fell 15 feet from a crane suffered from arthritis and pain in his ankle would not change the administrative result, the evidence was not material for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
comment Noting that the applicant's status had not yet expired, the court stated that it appeared the applicant could file a new claim for disability based on evidence that became available after December 1989.
The court in Caenen v. Secretary of Health and Human Services, 722 F. Supp. 629, 27 Soc. Sec. Rep. Serv. 437 (D. Nev. 1989), held that a diagnosis of rheumatoid arthritis was not material for purposes of the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)), since "rheumatoid panels" had been done repeatedly since February 1988 with normal results, x–rays had not supported the diagnosis, it did not appear to be based on any new symptoms not considered by the administrative law judge, and there was no allegation that the condition of the applicant's joints had significantly worsened or that his range of motion decreased. There was therefore no reasonable possibility that the evidence would have affected the outcome of the proceedings.

§ 30. Neuritis

The courts in the following cases, in which applicants for social security disability sought remand to the Commissioner of Social Security to have evidence of neuritis considered, held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Barrera v. Secretary of Health and Human Services, 872 F. Supp. 24, 46 Soc. Sec. Rep. Serv. 421 (E.D.N.Y. 1995), the court held that a physician's report that the claimant had a severe neuritis affecting her neck and lower back and radiating down the right leg, causing "unremitting pain, even when sitting" and making "it impossible for her to work," was material for purposes of the sixth sentence of § 205(g) ) of the Social Security Act (42 U.S.C.A. § 405(g)), where the claimant's treating physician had not filled out forms sent to him by the administrative law judge to obtain information concerning the claimant's physical condition and the claimant's husband had not testified as to her claims to be in pain.
In Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 7 Soc. Sec. Rep. Serv. 127, Unempl. Ins. Rep. (CCH) ¶15549 (3d Cir. 1984), the court held that 5 reports from physicians that postdated the administrative hearing of a claim by an applicant seeking disability benefits on the basis of polyneuritis, severe anxiety syndrome, and great pain were material for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since it could not be said that there was no possibility that the 5 new medical reports would have changed the outcome of the Commissioner's decision; the new reports appeared to corroborate the applicant's subjective complaints of pain and were entitled to great weight by the administrative law judge.

§ 31[a] High blood pressure—Held material

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security to have evidence of high blood pressure considered, held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Tirado v. Bowen, 705 F. Supp. 179, 24 Soc. Sec. Rep. Serv. 659, Unempl. Ins. Rep. (CCH) ¶14665A (S.D.N.Y. 1989), held that evidence of inpatient and outpatient treatment of an applicant for social security benefits due to asthma, high blood pressure, and uterine bleeding 4 years after the disability period in question was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the recent diagnoses of the applicant indicated that many of her symptoms were worse than they were when her benefits were denied. Observing that to be relevant evidence of a recent diagnosis must tend to prove that the claimant was disabled during the period covered by the claim, the court found that the new evidence called into question the findings made by the Commissioner in denying the applicant's claim. The court noted that its prior affirmance of the administrative law judge's decision was based in part on evidence that the applicant's conditions had been improving, while the new evidence showed that some of the conditions had continued for 4 years, commenting that the administrative law judge had found that the applicant's blood pressure was under control while the new evidence showed that it was not under control. With respect to asthma the new evidence should not be considered, the court stated, since while it had persisted it was not severe enough to call into question the administrative law judge's conclusion that it was not severe enough to constitute a disability, as the new evidence confirmed that the asthma was controlled. While the applicant had not demonstrated that her new symptoms (neurological deficit, iron deficiency anemia, hypokalemia, proteinuria, and Bell's palsy) related to an earlier disability, the court commented that the administrative law judge might, on remand, consider this evidence to the extent the judge found it material.
The court in Pickett v. Bowen, 1986 WL 8048 (N.D. Ill. 1986), held that medical records of an applicant for social security disability benefits on the basis of arthritis, hypertension, obesity, and migraine headaches, which were created after the denial of the applicant's claim, were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since the examinations of the applicant before the administrative hearing did not report diastolic blood pressure readings consistently in excess of 100 over a two–year period, nor did they document persistent reports of headaches and dizziness during that period. While the administrative law judge had concluded that the applicant did not meet the standards for obesity because she did not report an associated disorder, the court noted that the applicant's treating physician regularly reported arthritic pain, and the fact that 13 of 17 diastolic blood pressure readings over a two–year period were in excess of 100 almost certainly met the criteria set forth in social security regulations, so there was a reasonable possibility that this additional medical information would cause the Commissioner's determination to change. While the administrative law judge found that the applicant could perform medium work, the court found that, given the uncontradicted testimony that the applicant became short of breath and had to rest after a brief period of walking, and the inherent improbability of a person with her acknowledged impairments being able to lift 25 pounds frequently and 50 pounds even occasionally, the administrative law judge's determination was untenable, a conclusion buttressed by the new medical evidence. The administrative law judge had discredited the applicant's testimony because her pain was not supported by medical evidence and her migraine headaches were not reported to the consulting physician, but, the court noted, the new medical records showed that the applicant was reporting headaches and arthritic pain throughout a two–year period, and the high blood pressure readings contained in the physician's reports might provide objective medical evidence to corroborate the claimant's complaints of headache pain and inability to engage in strenuous activity. There was therefore a reasonable possibility that the administrative law judge's credibility determinations would change upon consideration of the new medical evidence.
The court in Perryman v. Shalala, 1994 WL 163912 (N.D. Cal. 1994), stated that evidence that an applicant for social security disability benefits based on vision problems, chronic leg pains, hypertension, and situational depression had been hospitalized for treatment of obesity and hypertension was probably material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court noted that the list of impairments at 20 C.F.R. pt. 404, subpt. P, app. 1. makes clear that an individual has an "impairment" if the person is obese and has hypertension with diastolic blood pressure persistently in excess of 100 mm., and the claimant, at 5 feet 4 inches tall, was obese, since she weighed more than 258 pounds, and the administrative law judge did not appear to have considered whether the claimant's obesity and hypertension qualified as an impairment under the regulations.
comment The court, however, declined to remand pursuant to § 205(g) because the claimant did not establish good cause for not introducing the medical records of her treatment for obesity and hypertension into the administrative hearing.
See Cannon v. Bowen, 858 F.2d 1541, 23 Soc. Sec. Rep. Serv. 324, Unempl. Ins. Rep. (CCH) ¶14253A (11th Cir. 1988), § 6[k], supra, in which the court held that medical records relating to a 17–day hospitalization of a claimant for social security disability benefits due to chest pains and high blood pressure after the denial of the applicant's claim for disability benefits were material evidence for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since they could change the administrative result.

§ 31[b] High blood pressure——Held not material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of the Social Security to have evidence of high blood pressure considered, held that such evidence was not material evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Fonseca v. Chater, 953 F. Supp. 467, 52 Soc. Sec. Rep. Serv. 831, Unempl. Ins. Rep. (CCH) ¶15730B (W.D.N.Y. 1997), judgment aff'd, 141 F.3d 1151 (2d Cir. 1998), held that a claimant for social security disability benefits had not established that various additional items of evidence that he wanted to introduce were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), since none of the additional evidence indicated that his high blood pressure was an impairment that should be taken into consideration. The court noted that in a record spanning more than 2 years the claimant's physician had never rendered an opinion that high blood pressure limited plaintiff's activities in any way or restricted his ability to work prior to February 20, 1993, and in fact the record indicated that the claimant's blood pressure decreased over the course of treatment. The court concluded that the additional evidence, if added to existing record, did not demonstrate a reasonable possibility of influencing the Commissioner's decision.
The court, in Rich v. Apfel, 57 Soc. Sec. Rep. Serv. 359, 1998 WL 458056 (S.D.N.Y. 1998), held that a claimant for social security disability benefits had not established that various additional items of evidence that he wanted to introduce were material for purposes of the sixth sentence of § 205(g) of the Social Security Act. The court stated that additional evidence is material if it is relevant to the applicant's condition during the time period for which benefits were denied, it is probative, and there is a reasonable possibility that the new evidence would have influenced the Commissioner to decide the claim differently. The court held that the additional evidence was not material because it noted that the applicant was not in acute distress and provided no new insights into the applicant's condition. The evidence submitted therefore failed to raise a reasonable probability that if it were considered it would have influenced the Commissioner to decide the claim differently.
The court in Wilson v. Sullivan, Unempl. Ins. Rep. (CCH) ¶15048A, 1989 WL 281935 (D.S.C. 1989), held not material for purposes of the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)) additional evidence in the form of (1) a letter dated July 23, 1987, from a physician stating that an applicant for social security disability benefits based on high blood pressure, "bad nerves," and back trouble was not totally disabled; (2) a November, 1985 disability claim statement to the applicant's former employer's insurance carrier showing he was totally disabled; and (3) 3 physician's statements to the applicant's former employer's insurance carrier dated on or after March 4, 1987, indicating she was totally disabled. Although the documents expressed the physician's view concerning the applicant's disability, they were, the court found, merely cumulative of the doctor's office notes and letter which were considered, and specifically referred to, by the administrative law judge in his decision and the documents stating that the applicant was "totally disabled" were medical opinions written for the benefit of the applicant's former employer's insurance carrier, not for a Social Security determination, while the one document which was written for a Social Security determination stated that the applicant was not disabled within the meaning of the Social Security Act.

CUMULATIVE SUPPLEMENT

Cases:

Remand of claim for social security disability insurance benefits based on hypertension, high cholesterol, diabetes, and fatigue for consideration of additional medical evidence was not warranted, since the new evidence related to claimant's hospitalization three months after expiration of period claimant was insured for disability benefits. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Hardee v. Commissioner of Social Sec., 188 Fed. Appx. 127 (3d Cir. 2006).

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§ 32. Postpolio syndrome

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of postpolio syndrome considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that there is new, material evidence and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Mercier v. Secretary of Health and Human Services, 66 F.3d 306 (1st Cir. 1995), (use and publication restricted) held that medical reports of a woman who claimed benefits on the basis of postpolio syndrome prior to the date that she claimed to be disabled as a result of postpolio syndrome were not material for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because the administrative law judge had fully credited the woman's history of polio and she was denied benefits not because her history of polio was not credited, but because insufficient evidence existed of any disabling restrictions during the relevant period and affirmative evidence existed that despite her limitations the claimant was able to perform some types of work.
The court in Fagg v. Chater, 106 F.3d 390 (4th Cir. 1997), (publication and use restricted) held that an applicant for Social Security benefits based on chronic back pain, a clubfoot and postpolio syndrome had not established the materiality of letters from a physician and a psychologist for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court rejected the argument that the letter from the physician, an expert in postpolio syndrome, was new and material because the physician was a specialist on postpolio syndrome since the letter was every bit as conclusory as her treating physician's letter had been since it did not indicate to what extent the claimant was disabled or identify what limitations, if any, were created by the disease during the relevant time period and, while the doctor opined that the child was disabled, the opinion added nothing to the treating physician's opinion that the child was totally disabled due to postpolio syndrome.

§ 33. Chronic fatigue syndrome

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to consider evidence of chronic fatigue syndrome held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Fragale v. Chater, 916 F. Supp. 249, 50 Soc. Sec. Rep. Serv. 344, Unempl. Ins. Rep. (CCH) ¶15234B (W.D.N.Y. 1996), held that a letter from the physician of a claimant for social security disability benefits based on chronic fatigue syndrome dated January 16, 1996 stating that he had been treating the claimant for her chronic fatigue syndrome and that she had been disabled since August, 1989 where the administrative hearing on the claimant's application was held on August 18, 1993 was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court in Schaffer v. Apfel, 992 F. Supp. 233, 55 Soc. Sec. Rep. Serv. 985 (W.D.N.Y. 1997), held that new evidence, consisting of a neurologist's report and a psychiatrist's opinion, was material and warranted a "sentence six remand" of a Supplemental Security Income (SSI) case to allow the Commissioner of Social Security to consider the evidence. The court held that the reports, which were the first mention of the possibility that the claimant suffered from chronic fatigue syndrome, were material and probative of plaintiff's condition and raised the reasonable possibility that a diagnosis of chronic fatigue syndrome could influence the Commissioner to decide the plaintiff's claim differently.

§ 34. Fibromyalgia

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of fibromyalgia considered, held that the evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner upon a showing that there is new evidence which is material and that there is good cause for failing to incorporate such evidence into the record of a prior proceeding.
The court in Lisa v. Secretary of Dept. of Health and Human Services of U.S., 940 F.2d 40, 34 Soc. Sec. Rep. Serv. 303, Unempl. Ins. Rep. (CCH) ¶16241A (2d Cir. 1991), held that reports of 4 physicians diagnosing the claimant as suffering from fibromyalgia and 2 magazine articles describing the disease were material evidence for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which authorizes district courts to remand cases to the Commissioner of Social Security where there is new and material evidence and good cause exists for the failure of the claimant to introduce the evidence in an earlier proceeding. The Commissioner argued that while some of the claimant's symptoms may have been presented before the end of the claimant's insured status evidence of the diagnosis was not material. However, the court stated that evidence bearing upon an applicant's condition subsequent to the date upon which the insured status was last met is pertinent evidence in that it may disclose the severity and continuity of impairments existing before the earning requirement date or may identify additional impairments which could reasonably be presumed to have been present and to have imposed limitations as of the earning requirement date and when a diagnosis emerges after the close of administrative proceedings that sheds considerable new light on the seriousness of a claimant's condition evidence of that diagnosis is material and justifies remand. The court stated that introduction of the claimant's new diagnosis would present a reasonable possibility of influencing the Commissioner to decide the application differently since it suggested that the claimant had an impairment substantially more severe than was previously diagnosed and would substantially bolster the credibility of the claimant's complaints of pain since fibrositis causes severe musculoskeletal pain which is accompanied by stiffness and fatigue due to sleep disturbances and in stark contrast to the unremitting pain of which fibrositis patients complain, physical examinations will usually yield normal results—a full range of motion, no joint swelling, as well as normal muscle strength and neurological reactions. The court observed that there were no objective tests which could conclusively confirm the presence of the disease; rather diagnosis involves a process of diagnosis by exclusion and testing of certain "focal tender points" on the body for acute tenderness which is characteristic in fibrositis patients.

§ 35. Side effects of medicine

The court in the following case, in which an applicant for social security disability benefits sought remand in order to have the side effects of a medicine that the claimant was required to take considered, held that the evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Lafrance v. Sullivan, 1992 WL 125404 (E.D. La. 1992), held that the side effects of a medicine an applicant for social security disability benefits was prescribed to take for her back injury were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which authorizes district courts to remand cases to the Commissioner of Social Security where there is new, material evidence and good cause exists for the failure of the claimant to introduce the evidence in an earlier proceeding, since the administrative law judge concluded that the applicant was capable of engaging in her past work as a truck driver but the effect of the medication on her ability to drive might preclude her from performing her job.

§ 36. Hepatitis B

[Cumulative Supplement]

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have records indicating that the claimant had hepatitis B considered, held that the reports were material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In LeClerc v. Shalala, 1994 WL 461696 (D.N.H. 1994), decision supplemented, 1994 WL 504361 (D.N.H. 1994), related reference, Unempl. Ins. Rep. (CCH) ¶15522B, 1996 WL 537710 (D.N.H. 1996), a case where a claimant for social security disability benefits had presented at the administrative hearing medical records showing positive test results for infection with hepatitis B and a physician's note that he had been tired and was "definitely infectious", the court held that additional medical records consisting of a report of test results for the hepatitis B virus dated August 14, 1994; current treating physician's examination notes covering the period from March 1993 through October 1993 and the physician's note dated August 2, 1994 stating that the applicant had been treated for fatigue and that hepatitis B can cause recurring fatigue were material for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court noted that at the hearing the administrative law judge did not include complaints of fatigue in the hypotheticals posed to the vocational expert and that medical records supporting his claims probably would have influenced the administrative law judge's conclusion concerning the validity of his claims since the claimant's complaints of hepatitis–related fatigue were primarily subjective.

CUMULATIVE SUPPLEMENT

Cases:

Social Security disability claimant was not entitled to remand for consideration of allegedly newly discovered evidence consisting of a physician's report of the effect of Hepatitis C in limiting medications and a new diagnosis of "chronic myofascial pain," even if the report reasonably could be understood to identify a source of debilitating, untreatable headaches, as claimant's evidence did not support a finding of disability during the relevant time period in light of other evidence, including inconsistent reports of the same physician and others dictated contemporaneously with their treatment during the relevant period, and claimant's own testimony at the hearing. Social Security Act, §§ 205(g), 223(d)(5)(A), as amended, 42 U.S.C.A. §§ 405(g), 423(d)(5); 20 C.F.R. § 416.927(c)(2). McAbee v. Halter, 21 Fed. Appx. 126 (4th Cir. 2001).

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§ 37. Hemiplegic migraines

The court in the following case, in which applicant for social security disability sought remand pursuant to the Commissioner of Social Security in order to have records indicating that the claimant had hemiplegic migraines considered, held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Wagner v. Secretary of Health and Human Services, 906 F.2d 856, 30 Soc. Sec. Rep. Serv. 314, Unempl. Ins. Rep. (CCH) ¶15544A (2d Cir. 1990), on remand to, 1990 WL 181172 (N.D.N.Y. 1990), the court held that the opinion of the applicant's treating physician that an applicant for social security disability who had a stroke–like occurrence had been suffering from hemiplegic migraines during the 3–year period prior to the applicant's being diagnosed as suffering from hemiplegic migraines was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).

§ 38. Sarcoidosis of lung

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have records indicating that the claimant had sarcoidosis of the lung considered, was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Williams v. Bowen, Unempl. Ins. Rep. (CCH) ¶14470A, 1989 WL 1307 (S.D.N.Y. 1989), held that a medical report prepared after the administrative law judge denied a claim for social security disability benefits by a woman who suffered from sarcoidosis of the lung—a multi–system granulomatous disorder of unknown etiology, characterized by epitheloid tubercles involving various organs or tissues—stating that the applicant's impairments equaled the criteria of impairments in the "Listing of Impairments" in Appendix 1 of Part 404, Subpart P of the Regulations, which would categorize plaintiff as disabled under Social Security Act was highly material to a determination of the applicant's condition and presented a reasonable probability of changing the Commissioner of Social Security's decision.

§ 39[a] Alcoholism—Held material

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of alcoholism considered, held that such evidence was material evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Blackburn v. Heckler, 615 F. Supp. 908, 11 Soc. Sec. Rep. Serv. 367, Unempl. Ins. Rep. (CCH) ¶16578 (N.D. Ill. 1985), held that additional evidence consisting of records of hospitalizations for coughing and vomiting blood was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in the case of an applicant for social security disability benefits since the administrative law judge in denying the applicant's claim placed some emphasis on the applicant's not having been hospitalized frequently for intoxication and that most of the evidence of the applicant's alcohol– related impairment significantly postdated the date the applicant was last eligible for benefits. The court observed that the new evidence served to establish a link between the 1981–1983 medical evidence and the period before the applicant was last eligible for benefits, June 30, 1979. Since alcoholism is not a disease that arises suddenly, the court stated that there was at least a reasonable possibility the administrative law judge would have evaluated the evidence before him differently had he had the opportunity to review the records in view of the fact that medical evidence of a subsequent condition of health, reasonably proximate to the preceding time, may be used to establish the existence of the condition at a preceding time.
The court in Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 5 Soc. Sec. Rep. Serv. 259, Unempl. Ins. Rep. (CCH) ¶15430 (9th Cir. 1984), held a claimant challenging the termination of his disability insurance benefits was entitled to a remand of his case to the Commissioner of Social Security pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) based on a psychiatric evaluation dated October 27, 1980 concluding that the deterioration of the claimant's mental capacity was due to long–term alcohol abuse since the evidence was reasonably likely to change the decision of the Commissioner. The claimant was employed as a maintenance worker and laborer until 1970, underwent medical treatment for acute and chronic alcoholism with cirrhosis of the liver and was hospitalized for that condition in 1977. On March 21, 1980 the administrative law judge found that the claimant was no longer disabled after the claimant failed to submit any evidence at a hearing before an administrative law judge contesting the apparent improvement in his condition and the administrative law judge's decision became the final decision of the commissioner when the Appeals Council approved it on September 9, 1980. The claimant presented evidence before the Appeals Council based on a 1977 hospital report and 1980 letter from his treating physician relating to problems connected with his alcoholism as well as the results of new psychological testing dated August 13, 1980 which indicated the presence of a "severe impairment" in the claimant's ability "to acquire new information and skill or even to reason with his existing information and skill" and concluded that the claimant could not do his former work since he "may be unable to perform even the most simple tasks satisfactorily." The claimant submitted to the district court a psychiatric evaluation dated October 27, 1980 concluding that the deterioration of his mental capacity was due to long–term alcohol abuse. The court stated that the new evidence the claimant sought to introduce was relevant, material, probative, and presented a reasonable possibility of changing the outcome of the Commissioner's determination, finding that the district court had erred in concluding that the claimant's psychological status was not an issue before the administrative law judge since the psychiatric evaluation linked the claimant's mental condition to long–term alcoholism, an issue expressly considered by the administrative law judge, and that a reasonable interpretation of the materiality standard should allow new evidence regarding the consequences of the claimant's alcoholism, whether such evidence relates to physical or mental impairments, and, moreover, the commissioner presented evidence concerning the claimant's general mental state at the termination hearing so the issue of mental capacity was squarely before the Appeals Council and the district court.

§ 39[b] Alcoholism—Held not material

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of alcoholism considered, held that the additional evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Dombrowski v. Chater, 960 F. Supp. 558, 53 Soc. Sec. Rep. Serv. 344, Unempl. Ins. Rep. (CCH) ¶15759B (N.D.N.Y. 1997), held that new evidence in the form of records from an alcohol treatment center relating to the admission of the claimant from October 31, 1994, to November 2, 1994, following an incident during which he discharged a weapon at home while he was intoxicated, was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). While the claimant argued that the records reflected his medical condition during that period, showed that he had no insight into the seriousness or extent of his drinking problem and reflected that the problem was quite serious and not easily amenable to treatment, the court stated that the decision of the administrative law judge was rendered on June 17,1994 more than 4 months before the claimant's admission to the alcohol treatment center and the report made no findings relevant to the period on or before the administrative law judge's decision. Accordingly, the court found the report not material for purposes of § 205(g) as it did not relate to the claimant's condition during the time period for which benefits were denied.
The court in Smith v. Chater, 99 F.3d 635, 52 Soc. Sec. Rep. Serv. 65 (4th Cir. 1996), held that the district court did not err by refusing to remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) an action challenging a finding that the plaintiff was an alcoholic who could receive benefits only through a representative payee despite new evidence in the form of a chemical dependency evaluation completed July 27, 1994 showing that she had not been using alcohol since late 1991 as the new evidence was not new or material. The court noted that at the administrative hearing the claimant had made a strong statement that her alcohol abuse had been in full remission since late 1991 but found that the administrative law judge decision's decision had been supported by substantial evidence.
The court in Johnson v. Heckler, 767 F.2d 180, 10 Soc. Sec. Rep. Serv. 203, Unempl. Ins. Rep. (CCH) ¶16253 (5th Cir. 1985), held that a claim for disability benefits could not be remanded to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where the new evidence consisted of evidence of a deteriorated condition (in this case, chronic malnutrition, "end stage" hepatic cirrhosis and severe anemia) and there was substantial evidence supporting the view of the administrative law judge denying benefits on the ground that the claimant, who originally sought benefits on the basis of a heart condition, gout and liver ailments, was not disabled at the relevant period in time. The court noted that while one of its decisions, Dorsey v. Heckler, 702 F.2d 597, 1 Soc. Sec. Rep. Serv. 299 (5th Cir. 1983), might be read to permit a remand in the light of evidence that a claimant has become disabled since the date of the administrative law judge's determination, the Third and Ninth Circuits in Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 7 Soc. Sec. Rep. Serv. 127, Unempl. Ins. Rep. (CCH) ¶15549 (3d Cir. 1984), and Ward v. Schweiker, 686 F.2d 762 (9th Cir. 1982) however, had concluded that the reviewing court may not remand for the consideration of new evidence showing only that a disability commenced after the decision of the commissioner since implicit in the materiality requirement is the requirement that the new evidence relate to the time period for which benefits were denied and does not consist of evidence of a later–acquired disability or of the subsequent deterioration of the previously nondisabling condition. The court agreed that it would be inconsistent with the principles of appellate review to remand the case solely for the consideration of evidence of a subsequent deterioration of what was correctly held by the administrative law judge to be a nondisabling condition.
comment The court noted, however, that the subsequent deterioration could form the basis for a new claim for supplemental security income benefits since there are no eligibility period requirements for the receipt of supplemental security income benefits.
The court in Heim v. Shalala, 895 F. Supp. 1222, 48 Soc. Sec. Rep. Serv. 944, Unempl. Ins. Rep. (CCH) ¶15027B (N.D. Iowa 1995), held that new evidence in the form of medical records arising out of the claimant's treatment in a substance abuse facility after an administrative law judge denied the claimant's application for social security disability benefits based on back and shoulder pain was not material for purposes of the sixth sentence of § 205 (g) of the Social Security Act (42 U.S.C.A. § 405(g)). While the records indicated that the claimant was drinking heavily within the last 2 years before he entered the program in September of 1993 and suffered from a depression related to his substance abuse, the court observed that the application for benefits now on appeal before the court did not allege disability due to alcoholism and found the records not material and remand not warranted. The court also stated that the reports came almost 16 months after the administrative law judge's decision, and thus, the timeliness of the report was questionable.
comment The court noted that the records would be material to an application for disability benefits based upon alcoholism or substance abuse and that the claimant's second application for disability benefits did allege disability due to substance abuse and that benefits had been awarded under the second application effective April 15, 1992.

§ 40. Cancer

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence that the claimant had cancer considered, held that the evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Stidman v. Heckler, 1984 WL 3465 (N.D. Ill. 1984), held that evidence that an applicant for social security disability benefits based upon alcoholism and related illnesses suffered from cancer serious enough to have her voicebox removed was obviously material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court rejected the argument of the government that the evidence was not "material" because his disability insurance application did not report cancer as one of his impairments characterizing the argument as less than specious and, at best, founded upon a mechanistic approach having nothing to commend itself—one that would needlessly force the applicant to return to the beginning of the disability determination process to present evidence of an impairment not invoked (because not in existence) at the time of his initial application.

§ 41[a] Leg vein problems—Held material

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence that the claimant had phlebitis considered, held that the evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Newhouse v. Heckler, 753 F.2d 283, 8 Soc. Sec. Rep. Serv. 237, Unempl. Ins. Rep. (CCH) ¶15833 (3d Cir. 1985), related reference, 1988 WL 6169 (E.D. Pa. 1988), held that the fact that a deceased claimant was hospitalized 26 days after the Appeals Council affirmed the administrative law judge's decision terminating her disability benefits was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court noted that the administrative law judge had terminated the claimant's benefits based on the absence of clinical evidence of disability while the hospitalization reports showed that the claimant had completely obstructed veins in the left thigh as well as evidence of a positive Homan's sign.[FN9] and her discharge diagnosis (which included angina pectoris, resolving phlebitis left leg, chronic coronary insufficiency, and acute superficial phlebitis) might well have supplied the very clinical data the administrative law judge sought. The court stated that the district court erred when it concluded that the new evidence failed to create such a reasonable possibility since a "reasonable possibility" standard should not be construed to require proof that a changed outcome is a virtual certainty.

§ 41[b] Leg vein problems——Held not material

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of difficulties with veins in the claimant's legs considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Wilks v. Chater, 1997 WL 158328 (N.D. Ill. 1997), held that additional medical records reflecting the continued treatment of an applicant for social security disability benefits was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in the case of a woman who sought disability benefits based upon persistent back, leg, and psychological problems. While the applicant argued that the evidence was material demonstrating that she was complying with her therapy by taking an anti–coagulant, the administrative law judge discounted the woman's assertion of leg problems because she was not taking her medication. The court stated that the administrative law judge's decision regarding the applicant's leg condition was prompted in part by the fact that she no longer suffered from deep vein thrombosis and had no objectively identifiable cause for her back pain, and the new records did not indicate any new medical abnormalities. In fact, the symptoms of venous reflux were similar to those of chronic venous insufficiency, a condition specifically before the administrative law judge when she wrote her opinion, and which, like chronic venous insufficiency, is best accommodated by refraining from standing and walking and, instead, sitting down and keeping the leg elevated. Assuming the applicant was currently on her anti–coagulant medication there was, the court stated, no indication that she could not perform sedentary work as the administrative law judge found the applicant had no leg problems as long as took her anti–coagulant medication.

§ 42. Whipple's disease

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence that the claimant had Whipple's disease considered, held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Gonzalez v. Sullivan, 799 F. Supp. 940, 38 Soc. Sec. Rep. Serv. 763, Unempl. Ins. Rep. (CCH) ¶17230A (N.D. Ind.1992), held that an applicant for social security disability benefits based on shortness of breath, sarcoidosis, Reiter's syndrome, and a urinary tract infection was entitled to a remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) to consider a medical report diagnosing the applicant as possibly suffering from Whipple's disease, a rare disease characterized by steatorrhea, frequently generalized lymphadenopathy, arthritis, fever, and cough since the new evidence was material. Given the severity of the illness, the court stated that it would be unfair to deny the applicant disability benefits merely because at the time of the hearing his subjective assessment of pain had not been properly scientifically labeled by the medical community since misdiagnosis or an incomplete diagnosis does not mean that he was not experiencing the pain at the time of the hearing. In addition, the court noted that the administrative law judge based his credibility findings upon a lack of medical evidence to support the applicant's allegations of pain so the new evidence might well alter the commissioner's decision since credibility played a large role in the administrative law judge's findings in the case.

§ 43. Asthma

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have a letter stating the claimant could not work at certain occupations because of his asthma considered, held that the evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), providing that district courts may at any time order that additional evidence be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Chabot v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶14687B, 1995 WL 523621 (D.N.H. 1995), held not material for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) additional evidence in the form of a medical report from a physician stating that the claimant because of his asthma could not work as a cashier, office clerk, or electronics assembler as suggested by the government's vocational–technical expert at the administrative hearing. The doctor's letter stated the claimant's asthma was severe enough to require interventions once every 4 to 6 weeks. These interventions were often emergency in nature where the claimant was exquisitely sensitive to cold air and to any airborne irritants, such as environmental tobacco smoke, off gassing from construction materials, perfumes and room freshners, all of which could be expected to cause an acute asthma attack that, in her case, could be fatal. The court stated that the letter clearly reflected the claimant's condition at the date of the letter (1994) rather than the claimant's condition during the time period relevant to 1987 through 1992, and was not material for the purposes of determining the onset date of the applicant's disability.
See Tirado v. Bowen, 705 F. Supp. 179, 24 Soc. Sec. Rep. Serv. 659, Unempl. Ins. Rep. (CCH) ¶14665A (S.D.N.Y. 1989), § 6[p], where the court held that evidence of inpatient and outpatient treatment of an applicant for Social Security benefits due to asthma, high blood pressure, and uterine bleeding 4 years after the disability period in question was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).

§ 44. Minor surgery

[Cumulative Supplement]

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence that the claimant had undergone minor surgery considered, held that the evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order that additional evidence be taken before the commissioner upon a showing that new, material exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Bradley v. Bowen, 667 F. Supp. 161, 19 Soc. Sec. Rep. Serv. 163, Unempl. Ins. Rep. (CCH) ¶17850 (D.N.J. 1987), held in the case of a woman who sought social security disability benefits based on bad knees and obesity that evidence of minor surgery performed on an ingrown toenail and bump, was not—considered either independently or in conjunction with plaintiff's other impairments—material for purposes of the sixth sentence of § 205(g) ) of the Social Security Act (42 U.S.C.A. § 405(g)) as it did not result in a reasonable possibility of reversal sufficient to undermine confidence in the prior decision.

CUMULATIVE SUPPLEMENT

Cases:

Evidence of two new surgeries was not material to the disability determination, in social security disability benefits case, and therefore did not warrant remand; there was no reasonable possibility that the reports would have resulted in a different decision, inasmuch as primary focus of claim was not an impairment of claimant's shoulders, but rather the effects of osteoarthritis on her back, knees, hips, neck, and hands, and the observations in the new reports were very brief and involved conditions already found inadequate to support claim. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Fox v. Barnhart, 137 Fed. Appx. 395 (2d Cir. 2005).

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§ 45. Kidney problems

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of kidney problems after the denial of a claimant's application for social security disability benefits considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court held in Hunter v. Bowen, 1987 WL 9384 (S.D. Tex. 1987), where an applicant for social security disability benefits based on recurring kidney stones, kidney and urethra damage, hydronephrosis, and deafness in the left ear, sought remand to the Commissioner of Social Security so that new evidence consisting of a letter written by a doctor a year or so after the denial of the applicant's claim and an assessment of residual functional capacity written at the same time held that the additional evidence was not material for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g) as it did not relate to the time period where benefits were denied though it could form the basis of a new disability claim.

§ 46. Diabetes

[Cumulative Supplement]

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have episodes of dizziness and jerking of the abdomen considered, held that the evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Jewell v. Harris, 673 F.2d 1329 (6th Cir. 1981), (publication and use restricted) ruled that an applicant for social security disability benefits was not entitled to a remand of his case pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) as the letter from one of her physicians noting that the claimant suffered from episodes of dizziness in 1974, and jerking of the abdomen in 1975 or 1976 that were symptoms of the claimant's diabetes and/or diverticulitis was not material for purposes of § 205(g) since both were discussed at length in the disability hearing so the information would not change the results of the hearing.

CUMULATIVE SUPPLEMENT

Cases:

Remand of disability proceedings to Commissioner of Social Security was appropriate, given ALJ's failure to express weight and credibility assigned to relevant testimony of claimant's mother, who was claimant's daily and primary caretaker, responsible for administering claimant's medication for her diabetes mellitus and testing her blood sugar levels. Ivey v. Barnhart, 393 F. Supp. 2d 387 (E.D. N.C. 2005).

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§ 47. Pancreatitis

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of pancreatitis considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Jones v. Sullivan, 954 F.2d 125, 36 Soc. Sec. Rep. Serv. 189, Unempl. Ins. Rep. (CCH) ¶16438A (3d Cir. 1991), held that evidence that an application for Social Security benefits based in part on the applicant's disability due to alcoholism had been hospitalized for pancreatitis and hepatitis after the administrative law judge had denied his claim was immaterial for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since, as the Appeals Council noted in refusing to reopen the case on the basis of the proffered new evidence, the evidence showed that the applicant's symptoms had been quickly resolved and that the claimant had been released from the hospital in good condition.
The court in Godsey v. Bowen, 832 F.2d 443, 19 Soc. Sec. Rep. Serv. 556, Unempl. Ins. Rep. (CCH) ¶17657 (7th Cir. 1987), held that evidence submitted by a claimant that her condition (pancreatitis) had deteriorated by 1986, 3 years after her administrative hearing, was not material for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since the fact that her condition deteriorated by 1986 did not show that in 1983 it was otherwise than as found at the administrative hearing.

§ 48. Myasthenia gravis

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to consider a diagnosis of myasthenia gravis held that evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order that additional evidence be taken before the commissioner upon a showing that there is new evidence that is material and that there is good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Ward v. Schweiker, 686 F.2d 762 (9th Cir. 1982), the court held that the district court had not abused its discretion in refusing to remand under the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) the case of a woman whose eligibility for disability benefits terminated in May 1975 and who was diagnosed in February 1980 as having myasthenia gravis[FN10] since the claimant would have to show that she had myasthenia gravis for almost 5 years before it was diagnosed in 1980 and the additional medical evidence offered contained no findings that she suffered from myasthenia gravis during the period of coverage. The court observed that the claimant had not supplied any indication that she would be able to make such a showing if given the opportunity to present additional evidence to the commissioner. She also stated that remand was not appropriate since the additional evidence was not material to the commissioner's decision terminating benefits in 1975 although it could form the basis for a new claim since even applying the standard used by the court for materiality prior to the amendment of § 205(g) in 1980—that the new or additional evidence offered must bear directly and substantially on the matter in dispute—the new evidence was not material.

§ 49. Epstein–Barre disease

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have a tentative diagnosis of Epstein–Barre disease considered, held the evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Meyers v. Department of Health & Human Services, 977 F.2d 590 (9th Cir. 1992), held that a tentative diagnosis that an applicant for social security disability benefits based on constant severe headaches, back pain, postmenopausal symptoms, intermittent high blood pressure, and generalized pain and muscle spasms whose claim had been denied suffered from chronic Epstein–Barre virus was not material for purposes of the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)) providing for remands to the Commissioner of Social Security where there is new, material evidence and good cause exists for the failure to produce the evidence in a prior proceeding, since the diagnosis was based on an examination taking 13 months after the hearing by the administrative law judge and the diagnosis did nothing more than give a name for the constellation of complaints already reviewed by the administrative law judge. The court observed that the administrative law judge found that the weight of the medical evidence supported a finding that the claimant was not disabled, that a tentative diagnosis was unlikely to affect that decision, and that the absence of a diagnosis was not the only reason for the administrative law judge's decision since 3 of the 11 doctors who examined the claimant also mentioned a lack of objective findings in their reports. The court stated further that since the diagnosis was as equivocal as earlier reports nothing suggested that a reasonable possibility that the new evidence would change the commissioner's decision.

§ 50. Charcot–Marie Tooth disease

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have a diagnosis of Charcot–Marie–Tooth's/Epstein–Barre disease considered, held that the diagnosis was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Meyers v. Department of Health & Human Services, 977 F.2d 590 (9th Cir. 1992), held that an applicant's diagnosis for social security disability benefits based on constant and severe headaches, back pain, postmenopausal symptoms, intermittent high blood pressure, and generalized pain and muscle spasms whose claim for disability benefits had been denied had Charcot–Marie–Tooth disease in a report dated August 12, 1991 from a physician was not material since it does not discuss or evaluate the applicant's condition prior to September 1986, the period in question, and merely indicated that the applicant was suffering from a disease which had steadily worsened over the years and achieved a serious state by August 1991.

§ 51. Unexplained general pain

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have additional evidence, in the form of medical reports not identifying the cause of the applicant's pain, considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Dewey v. Chater, 942 F. Supp. 711, 52 Soc. Sec. Rep. Serv. 174, Unempl. Ins. Rep. (CCH) ¶15675B (D. Mass. 1996), held that additional evidence submitted by the claimant for social security disability benefits consisting of a letter from a physician stating the claimant was disabled, an undated report of a psychological evaluation done on October 16, 1995, a letter from the claimant's landlord regarding her health, a functional evaluation done on January 23, 1996, the results of hearing evaluations done in January and March 1996, and a physician's certification that the claimant qualified for a handicapped placard for her automobile was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that the administrative law judge had discounted a similar letter from the same physician earlier, the fact that the physician certified the claimant for a special placard was irrelevant, neither the psychological evaluation nor the hearing test raised material issues regarding the claimed disability, the letter from the landlady cast no substantial doubt upon the administrative law judge's decision, and the functional evaluation only seemed to confirm what most of the doctors had been saying—that the claimant had subjective complaints of pain that did not manifest themselves in an objectively measurable or wholly consistent way.

§ 52. Addiction to painkillers

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have the fact that the applicant was addicted to prescription painkillers considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Ratcliff v. Shalala, 1994 WL 321040 (E.D. La. 1994), held that additional evidence for social security disability benefits based on a spinal injury where the claimant was addicted to prescription painkillers was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) since implicit in the materiality requirement is the requirement that the new evidence relate to the time period for which benefits were denied, which in the instant case ended in 1990, and not concern evidence of a later–acquired disability or the subsequent deterioration of the previously nondisabling condition. The court noted that the claimant's evidence of addiction postdated the hearing before the administrative law judge and the decisions of both the administrative law judge and the Appeals Council.

§ 53. Vision problems

[Cumulative Supplement]

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of vision problems considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Dallas v. Chater, 105 F.3d 664 (9th Cir. 1997), held that 2 letters from a doctor concerning the vision of an applicant for social security disability benefits were not material for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since there was not a reasonable possibility that they would have effected the decision of the administrative law judge. One letter reported a decrease in the applicant's color perception while the administrative law judge held that the applicant was not disabled though his vision impairment ruled out work requiring color perception. The second letter, concluding that the applicant could not engage in gainful activity, was immaterial since it was not consistent with prior evaluations by the doctor in question.

CUMULATIVE SUPPLEMENT

Cases:

Remand was required, in social security disability benefits case, for consideration of new evidence of the progression of claimant's macular degeneration, even though physician's report did not relate to the time period for which benefits were denied; report, which stated that claimant had become legally blind in both eyes, was material, relevant, and probative, since it directly supported claimant's earlier contentions regarding her condition and presented a reasonable possibility of a different decision. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Sergenton v. Barnhart, 470 F. Supp. 2d 194 (E.D. N.Y. 2007).

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§ 54. Other traumatic physical injury

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of a lacerated liver and forehead considered, held such evidence material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Hebert v. Sullivan, 1991 WL 127083 (D. Kan. 1991), remanded to the Commissioner of Social Security an application for social security disability benefits by a woman who worked primarily as a hotel or nursing home housekeeper and who had been attacked at work suffering a laceration to her liver and to her forehead pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g))) for consideration of new and additional evidence consisting of the testimony of the applicant's relatives and her treating physicians. After the administrative law judge issued his decision denying the applicant's claim, the applicant submitted to the Appeals Council a letter from her doctor explaining that the applicant's medical condition prevented her from stooping, squatting, bending, reaching, or carrying objects, that the laceration to her eye may have caused damage to the left supra–orbital nerve which could cause pain, tingling, and numbness, that her symptoms were consistent with her medical condition, and that she was capable only of extremely light duty, not requiring exertion, and that she would have to stop "whenever she wants to." The court stated that it appeared that the administrative law judge, using his own medical judgment, independently concluded that the applicant was exaggerating the quantum and quality of her pain and that, while the administrative law judge must inevitably determine the credibility of each applicant claiming disability from pain, the paucity of the record precluded meaningful review of the commissioner's decision.

§ 55[a] Unspecified medical evidence—Held material

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have unspecified medical evidence considered, held that the new evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Byars v. Secretary of Health and Human Services, 944 F.2d 904 (6th Cir. 1991), the court held that the district court had acted properly in remanding pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for consideration of additional, unspecified medical evidence not available at the time the administrative law judge made his determination, stating that the record amply supported a conclusion that the evidence was relevant to the claimant's condition at the appropriate time and that upon remand the commissioner should obtain the opinion of a medical expert regarding the relevancy of the new evidence on the claimant's condition prior to August 25, 1988.
The court in Embrey v. Bowen, 849 F.2d 418, 22 Soc. Sec. Rep. Serv. 124, Unempl. Ins. Rep. (CCH) ¶14012A (9th Cir. 1988), held that a June 1987 report from one of the physicians who testified at the hearing before the administrative law judge held on October 21, 1985,was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since it reinforced the opinion of the doctor, a neurologist, that the applicant who sought disability benefits based on back and heart problems as well as diabetes met the requirements for social security disability and also discussed the expected duration of the claimant's condition as of September 1985 which was relevant since to obtain disability benefits the disability must last at least 12 months. The court distinguished Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 4 Soc. Sec. Rep. Serv. 129, Unempl. Ins. Rep. (CCH) ¶15163 (9th Cir. 1984), since in that case the applicant attempted to introduce the results of new tests and evaluations by new expert witnesses while the claimant's evidence consisted of a recent letter from his doctor and, rather than attempting to raise new issues, the evidence represented the ongoing medical evaluation of a consulting physician who had already participated in the disability determination process.
The court in Wysocki v. Sullivan, 761 F. Supp. 693, 33 Soc. Sec. Rep. Serv. 287, Unempl. Ins. Rep. (CCH) ¶16305A (C.D. Cal. 1991), held that evidence concerning the onset date of an applicant for social security disability benefits claim was obviously material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
comment The applicant did not have the opportunity to introduce evidence concerning the onset date because the administrative law judge granted the applicant's claim without a hearing and misled the applicant into believing that he did not have a right to a postdecision oral hearing.
The court in Robinson v. Shalala, 871 F. Supp. 3, 46 Soc. Sec. Rep. Serv. 341, Unempl. Ins. Rep. (CCH) ¶14527B (D.D.C. 1994), remanded pursuant to § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) authorizing the district courts to remand cases to the Commissioner of Social Security where new, material evidence is presented and good cause exists for the failure to introduce the evidence in an earlier proceeding, a claim for supplemental security income though it found that the decision of the commissioner to deny benefits was supported by substantial evidence that the applicant had been employed during the period for which she sought disability benefits because evidence of the claimant's deteriorating medical condition was pertinent to the question of the claimant's ultimate eligibility for supplemental security income and, rather than have the claimant go through the lengthy and time consuming process of filing a new claim, the court recognized that handling this case by remand would be more expeditious.

CUMULATIVE SUPPLEMENT

Cases:

Remand for further proceedings was warranted, in social security disability benefits case, where claimant submitted new evidence, including evidence of three surgeries performed after ALJ's decision, that was material to a decision as to whether claimant qualified as disabled, and Commissioner showed good cause for not incorporating such evidence in prior findings; evidence did not become available until after ALJ's decision, and claimant did not submit evidence to Appeals Council. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Balke v. Barnhart, 219 F. Supp. 2d 319 (E.D. N.Y. 2002).
Social security disability claimant's treating physician's letter, which was submitted to ALJ nearly twenty days after the record was closed, was new and material evidence which could reasonably have changed ALJ's decision, thus warranting remand to allow ALJ to consider the letter; letter was relevant to the time frame of the claim, and did not appear to contradict treating physician's other medical findings, but rather, appeared to be an adjustment of physician's opinions based on a subsequent examination of claimant. Sample v. Barnhart, 239 F. Supp. 2d 422 (D. Del. 2002).

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§ 55[b] Unspecified medical evidence——Held not material

[Cumulative Supplement]

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have unspecified medical evidence considered, held that the evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Santiago v. Bowen, 1987 WL 13905 (D.N.J. 1987), held that an applicant for social security disability benefits was not entitled to a remand of her case pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) based upon medical records created nearly 2 years after the final determination of her disability claim since the evidence was not material as the applicant did not show that the evidence related to the time period for which the benefits were denied or that the evidence did not relate to a subsequent deterioration of the previous condition which the commissioner found to be nondisabling.
The court in Oliver v. Secretary of Health and Human Services, 804 F.2d 964, 15 Soc. Sec. Rep. Serv. 330, Unempl. Ins. Rep. (CCH) ¶17145 (6th Cir. 1986), held that a claimant for social security disability benefits based upon general weakness, pain, and forgetfulness following an episode of malignant hyperthermia during surgery was not entitled to a remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) authorizing the remand to the commissioner of cases new, material evidence exists as does good cause for the failure to submit the evidence in a prior proceeding. The court stated that additional medical evidence which described the applicant's condition 2 years after the period in question was not material to the commissioner's decision that the claimant could perform sedentary work as of December 5, 1983 as it was compiled in March 1985 and did not reveal further insight into the claimant's ability to perform light or sedentary work 2 years earlier. While the claimant argued that the evidence showed his condition had worsened since the commissioner's decision was made, the court stated that the deterioration did not effect the commissioner's 1983 decision.
The court in Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 40 Soc. Sec. Rep. Serv. 335, Unempl. Ins. Rep. (CCH) ¶17208A (6th Cir. 1993), stated the additional medical evidence of an unspecified nature did not further the claimant's cause in any significant way since the only relevant items regarding the 4–month period in question showed no marked departure from previous examinations while the rest of the material contained in the additional evidence pertains to a time outside the scope of the inquiry so the added material was not new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court in Lee v. Chater, 1997 WL 50476 (D. Kan. 1997), judgment aff'd on other grounds, 124 F.3d 217 (10th Cir. 1997), declined to remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), a case where the applicant sought social security disability benefits based on new medical evidence of an unspecified nature since the new evidence presented by the applicant related to the period prior to December 31, 1974 and the period at issue was January 1, 1975 to December 31, 1977.

CUMULATIVE SUPPLEMENT

Cases:

District court correctly concluded, in social security disability benefits case, that it could not remand claim to Commissioner for consideration of new evidence which was added to the record by the Appeals Council; evidence did not meet criteria for remand inasmuch as claimant did not offer any reasons why the evidence was material or why it had not been generated in time to be put into the record before the ALJ. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g); 20 C.F.R. § 404.970(b). Money v. Barnhart, 91 Fed. Appx. 210 (3d Cir. 2004).
Remand of claimant's Supplemental Security Income (SSI) and Social Security Act (SSA) disability case for new trial, on basis of new evidence, was not warranted, since most of alleged new evidence did not refer to relevant time period covered by decision of ALJ and evidence that did refer to that time period did not add any substantially new information. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Raglin v. Massanari, 39 Fed. Appx. 777, 81 Soc. Sec. Rep. Serv. 244 (3d Cir. 2002).
Social security disability case would not be remanded to Commissioner on basis of new evidence, although claimant made requisite showing of nature of new evidence by attaching copies to her objections to magistrate's report and recommendation; evidence was not relevant in light of time period it related to, evidence would not reasonably have changed Commissioner's decision had it been before her and thus was not material, and claimant failed to show good cause for filing to file additional evidence with Commissioner. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Miller v. Barnhart, 64 Fed. Appx. 858 (4th Cir. 2003).
Letter attached to social security disability claimant's complaint seeking judicial review of denial by Commissioner of Social Security of claim did not warrant remand to administrative level on basis of new evidence; assuming that letter constituted new evidence, claimant failed to establish that the information in the letter would have changed the outcome of the Commissioner's determination, or that he had good cause for failing to incorporate the letter into the record during the administrative proceedings. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Wheat v. Barnhart, 318 F. Supp. 2d 358 (M.D. La. 2004).
Federal district court was not required to order additional, post–hearing medical evidence to be taken before the Social Security Commissioner to allow another ruling on disability claim, absent showing that new evidence was material and absent good cause for failure to incorporate evidence into the record earlier; claimant's new medical report was consistent with prior assessment of her ability to perform sedentary work and the other report was an assessment done after the prior hearing. Social Security Act, § 205(f), 42 U.S.C.A. § 405(g). Cranfield v. Commissioner, Social Security, 79 Fed. Appx. 852 (6th Cir. 2003).
Court, in social security disability benefits case, would not consider documents submitted by claimant to supplement the record on appeal and would not remand case to the Commissioner on such basis; documents were not before the Commissioner when the administrative proceedings ended, they were not material inasmuch as if submitted during the administrative proceedings they would not have served to alter or affect the Commissioner's decision, and claimant failed to show good cause for failing to submit them at the administrative level. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Attia v. Barnhart, 306 F. Supp. 2d 895 (D.S.D. 2004).
Remand to ALJ to consider new medical report was not warranted, on basis that report was not material and applicant for Supplemental Security Income (SSI) disability benefits did not show good cause for failing to present it sooner; even though new medical report stated that applicant was "disabled," new report was merely recharacterization of same information upon which first report had been based and applicant did not explain his failure to submit new report to ALJ. Harris v. Barnhart, 40 Fed. Appx. 581 (9th Cir. 2002).
Social Security disability benefits claimant's "new" medical-records evidence, proffered for first time on judicial review of ALJ's non-disability finding, was immaterial, and thus did not warrant remand, since evidence in question was in existence at time of ALJ's hearing, and claimant made no showing that he had been unable through no fault of his own to procure evidence at that time and present it to ALJ. Social Security Act, §§ 205(g), 223(d), 42 U.S.C.A. §§ 405(g), 423(d). Beauclair v. Barnhart, 453 F. Supp. 2d 1259 (D. Kan. 2006).

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3. Good Cause for Failing to Present Evidence Earlier

§ 56[a] Hospitalization subsequent to administrative hearing—Back problems

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of back problems arising out of hospitalizations after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, where—
—the additional evidence consisted of medical records relating to a back surgery performed after the commissioner rendered his final decision. Sharpe v. Sullivan, 802 F. Supp. 938, 39 Soc. Sec. Rep. Serv. 283, Unempl. Ins. Rep. (CCH) ¶17231A (W.D.N.Y. 1992), related reference, 1994 WL 29827 (W.D.N.Y. 1994).
—the claimant had undergone a third back surgery subsequent to the district court's denial of the claimant's appeal from a denial of benefits. Steingraber v. Secretary of Health and Human Services, 762 F.2d 1011 (6th Cir. 1985).
—the back surgery at issue had not taken place at the time of the administrative hearing. Heimerman v. Chater, 939 F. Supp. 832, 51 Soc. Sec. Rep. Serv. 968, Unempl. Ins. Rep. (CCH) ¶15659B (D. Kan. 1996).
—a woman seeking benefits on the basis of disabling chronic low–back pain resulting from degenerative disk —disease and failed surgical back syndrome sought to introduce records from her hospitalization a month after the final administrative decision denying her claim showing that she underwent neurolysis and a laminectomy Smith v. Bowen, 792 F.2d 1547, 14 Soc. Sec. Rep. Serv. 75 (11th Cir. 1986).
The court in Bomes v. Schweiker, 544 F. Supp. 72 (D. Mass. 1982), held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) existed for the failure of an applicant for social security disability benefits based upon pain in his left foot and leg and left side hemiparesis to introduce earlier in the proceedings a diagnosis by a physician that he was suffering from a herniated disk impinging on the spinal column as it was clear that the evidence at issue could not have been submitted to the administrative law judge since the diagnosis was made and the operation performed subsequent to his decision. While the court acknowledged that it could be argued that the applicant had the duty to provide evidence to the Appeals Council that the herniated disk explained his previous condition since in most instances the commissioner need not proceed further when a claimant fails to offer evidence that satisfies his burden of proving that he has a medically determinable impairment that disables him from performing jobs he has held in the past, the court stated that the potential availability of new evidence of a medically determinable basis for the claimant's condition first became known as a result of findings made in a medical examination occurring after the administrative law judge's decision and no reason appeared for not applying to review by the Appeals Council a responsibility, like that clearly established in the context of a hearing before the administrative law judge, to assure adequate development of the evidence.
In Ripley v. Chater, 67 F.3d 552, 49 Soc. Sec. Rep. Serv. 112, Unempl. Ins. Rep. (CCH) ¶14847B (5th Cir. 1995), good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of a claimant for social security disability benefits based on a back injury to introduce evidence arising out of back surgery performed after the administrative law judge denied the claimant's application since major medical procedures such as back surgery are not entered into lightly. The court observed that the applicant's complaints of pain had to be examined and evaluated to determine what medical treatment was best for him so he could not just walk into the hospital and receive back surgery on demand. Although back surgery had been suggested on 2 occasions before the administrative law judge's decision, the ultimate judgment as to whether back surgery was necessary and when it should be performed rested with the treating physicians and his doctor felt that the surgery was necessary after the administrative law judge denied the applicant's disability claim. Since the qualified judgment of the applicant's doctors was responsible for the delay in the availability of evidence relating to the scar tissue, the court concluded that the applicant had demonstrated good cause for failing to produce the evidence during the initial hearings.
The court in Caulder v. Bowen, 791 F.2d 872, 13 Soc. Sec. Rep. Serv. 397, Unempl. Ins. Rep. (CCH) ¶16830 (11th Cir. 1986), held that a claimant for social security disability benefits based on back problems had shown good cause for purposes of the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)) for failing to introduce earlier in the proceedings hospital records disclosing a lumbar myelogram and CT scan of the spine. The records revealed a block at the L4–5 level and a diagnosis of spinal stenosis indicating an elective lumbar laminectomy with decompression at L3, 4, and 5, and S1 which was performed, but that procedure did not eliminate the claimant's pain, weakness, or numbness in the legs. The court observed that the case was not one where the claimant procrastinated in obtaining copies of evidence readily available or where the administrative law judge ordered the claimant to submit to additional tests. The court found the claimant's decision to continue a course of prescribed medication for a short period before submitting to the surgical procedures was reasonable when faced with conflicting medical diagnoses, that the claimant was admitted to the hospital on July 9, 1984, on July 11 the surgical procedure was performed and the claimant's memorandum in support of his request for review by the Appeals Council was filed. The claimant was not discharged from the hospital until July 17 and during the next few months was hospitalized for another week and visited the surgeon several times over a period of several weeks.

§ 56[b] Hospitalization subsequent to administrative hearing—Other orthopedic problems

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of orthopedic problems other than back injuries arising out of hospitalizations subsequent to the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing of new, material evidence and of good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Moore v. Secretary of Health and Human Services, 54 F.3d 777 (6th Cir. 1995) (publication and use restricted), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant to introduce evidence of shrapnel in his right hip in an earlier proceeding because the shrapnel was not discovered until after the earlier proceeding.
The court in Czubala v. Heckler, 574 F. Supp. 890, 3 Soc. Sec. Rep. Serv. 651, Unempl. Ins. Rep. (CCH) ¶15321 (N.D. Ind. 1983), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of a claimant for social security disability benefits based on an arm injury to introduce the evidence earlier in the proceedings because the hospitalizations about which the applicant sought to present evidence were after the date of the applicant's administrative hearing and, therefore, could not have been incorporated in the record as the events reported upon had yet to occur.

§ 56[c] Hospitalization subsequent to administrative hearing—Psychiatric illness

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of psychiatric disorders arising out of hospitalizations after the date of the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Rawls v. Apfel, 998 F. Supp. 70, 56 Soc. Sec. Rep. Serv. 565 (D. Mass. 1998), the court held that the plaintiff, who had been repeatedly hospitalized for his bipolar disorder and had been through medication and counseling since the administrative law judge's denial of his benefits, showed good cause for failing to introduce evidence of his subsequent hospitalizations. The court stated that since the information regarding the plaintiff's hospitalizations and counseling did not exist and could not have been presented before the administrative law judge at a hearing on application for SSI benefits, the plaintiff had good cause for not providing the information at that time.
The court in Dorsey v. Heckler, 702 F.2d 597, 1 Soc. Sec. Rep. Serv. 299 (5th Cir. 1983), held that good cause existed to support the remand of a claim for social security disability benefits based upon various physical problems and "chronic anxiety" pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) when the claimant was hospitalized for hallucinations, anxiety, and depression around the time that the Appeals Council denied review of her claim. The court stated that the claimant had shown good cause for not incorporating the evidence of her hospitalization into the proceedings before the administrative law judge and the Appeals Council as the claimant was released from the hospital just 2 days before the Appeals Council handed down its decision.
The court in Humphrey v. Shalala, 1993 WL 313053 (N.D. Ill. 1993), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) for the failure of an applicant to introduce earlier a psychological evaluation of him conducted after his application for disability benefits based on a knee injury was denied. The evaluation diagnosed the claimant as suffering from clinically significant depression, a psychiatric condition called somaticization where an individual does not feel anxiety, depression, disappointment, psychological conflict, etc. but becomes overly concerned about his physical health. The notes of the physician who treated the applicant for his knee problems indicating that the applicant was depressed and was taking an anti–anxiety medication were "obscure" so it was not surprising that the counsel for the applicant did not find out he had been taking anti–anxiety medication. In addition, the court noted that the applicant's attorney did not decide to pursue further psychological examinations until after meeting with the applicant in person, that given the nature of the applicant's psychological impairment it was possible that he could have suffered from this condition for years without having actual "knowledge" of his psychological impairment and even the administrative law judge failed to discover evidence of the applicant's possible psychological impairment.

§ 56[d] Hospitalization subsequent to administrative hearing—Neurological injuries

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of neurological problems arising out of a hospitalization after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Jackson v. Sullivan, 1990 WL 171015 (D. Kan. 1990), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of an applicant for social security disability benefits based on hypertensive cardiovascular disease with a history of a cerebrovascular accident with left hemiplegia and congestive cardiomyopathy to introduce earlier in the proceedings the results of a CAT scan showing for the first time a large brain loss attributed to a prior cerebrovascular accident in April 1987 taken during hospitalization of the applicant 2 months after the administrative law judge's decision since the CAT scan did not exist at the time of the administrative law judge's decision.

§ 56[e] Hospitalization subsequent to administrative hearing—Heart disease

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of heart disease arising out of hospitalizations after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Starkweather v. Shalala, Unempl. Ins. Rep. (CCH) ¶14533B, 1995 WL 85355 (D.N.H. 1995), held that good cause existed for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for social security disability benefits based on a heart condition to introduce evidence at the administrative hearing of 3 hospitalizations for heart–related problems after the administrative denial of the claimant's claim because the events precipitating the medical records had not occurred at the time of the hearing and the administrative law judge's decision.
In the case of a man who was granted disability benefits due to a heart attack, chest pains, anginal syndrome and high blood pressure which subsequently stopped, the court in Sanchez v. Bowen, 1988 WL 1432 (N.D. Ill. 1988), stated that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of the man to produce earlier in the proceedings records of tests made during a hospitalization of the man for heart problems indicating that there was a more than 70% narrowing of a proximal coronary artery and perhaps more than 50% narrowing of a long segment of another artery which apparently showed that the man was disabled under Social Security regulations since it did not appear the man possessed the evidence and withheld its submission at the administrative level as he did not undergo hospitalization or cardiac diagnostic procedures before the reconsideration by the Appeals Council and could not, therefore, produce the records prior to the final determination. The court stated that it did not think the fact that the hospitalization of the applicant was 1 day after the denial of review showed that the applicant was scheming for another chance since it was doubtful that a person would seek admission to a hospital for the sole purpose of gaining additional medical evidence to support his disability claim and even more unlikely that he would undergo the fatal risks inherent in catheterization and coronary angiography for that purpose. Rather, the court ruled that licensed physicians and hospital review groups determined whether the applicant medically required further hospitalization and invasive diagnostic procedures, and the court did not think that these judgments would succumb to an overriding desire on the part of the applicant to get benefits.
The court in Agesyan v. Apfel, 133 F.3d 925 (9th Cir. 1998),[FN11] held that the claimant's new evidence of a degenerative heart condition, claimant's myocardial infarction and four–way bypass surgery 21 months after the earlier evaluation, met the good–cause requirement of 42 U.S.C.A. § 405(g) as the proffered evidence did not exist at the time of the administrative law judge's decision.
In Cannon v. Bowen, 858 F.2d 1541, 23 Soc. Sec. Rep. Serv. 324, Unempl. Ins. Rep. (CCH) ¶14253A (11th Cir. 1988), the court held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for social security disability benefits to introduce at an earlier proceeding medical records relating to a 17–day hospitalization of the applicant due to chest pains and high blood pressure stating that the claimant could not return to gainful employment for an indefinite period of time, that the claimant could stand and walk fewer than 6 hours in an 8–hour workday, could only lift and carry 5 pounds, and could not push or pull leg or arm controls, that these limitations probably existed since May 1985, and that the claimant had Class III cardiac disease which resulted in marked limitation of physical activity, and a letter from a vocational expert stating that the claimant was unable to physically meet the requirements of sedentary or light work because the evidence did not exist at the time of the administrative hearing or the district court proceedings.

§ 56[f] Hospitalization subsequent to administrative hearing—Arthritis

[Cumulative Supplement]

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of arthritis arising out of hospitalizations after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Delgado v. Secretary of Health and Human Services, 43 F.3d 1456 (1st Cir. 1994), (publication and use restricted), held that the good–cause requirement of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) was satisfied since the evidence that the claimant, who filed a claim based on a crushed wrist and a fractured ankle, had rheumatoid arthritis which required various surgical operations after the administrative hearing was not available to be incorporated into the administrative proceedings.

CUMULATIVE SUPPLEMENT

Cases:

No good cause existed for claimant's failure to introduce at the appropriate administrative level in social security disability benefits case a letter from her previous employer and a physician's deposition testimony, and thus no sentence six remand for consideration of the documents was warranted, even though they were dated several months after the last administrative action in the case; documents were based on evidence that could have been gathered and produced earlier in the administrative process. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Fremd v. Barnhart, 412 F. Supp. 2d 1245 (M.D. Ala. 2005).

[Top of Section]


[END OF SUPPLEMENT]


§ 56[g] Hospitalization subsequent to administrative hearing—High blood pressure

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of high blood pressure arising out of a hospitalization after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Tirado v. Bowen, 705 F. Supp. 179, 24 Soc. Sec. Rep. Serv. 659, Unempl. Ins. Rep. (CCH) ¶14665A (S.D.N.Y. 1989), held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) existed for the failure to introduce earlier into the proceedings evidence of the inpatient and outpatient treatment of an applicant for Social Security benefits due to asthma, high blood pressure, and uterine bleeding at a hospital 4 years after the administrative proceedings since the evidence did not exist during the administrative proceeding.

§ 56[h] Hospitalization subsequent to administrative hearing—Crohn's disease

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of Crohn's disease arising out of a hospitalization after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Espinar v. Shalala, 1995 WL 679236 (S.D.N.Y. 1995), the court held that for purposes of applying the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of the claimant to introduce evidence that he had Crohn's disease and that a benign tumor had been surgically removed since the diagnosis and surgery occurred after the administrative hearing.

§ 56[i] Hospitalization subsequent to administrative hearing—Cancer

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of cancer arising out of a hospitalization after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Stidman v. Heckler, 1984 WL 3465 (N.D. Ill. 1984), held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) existed in the case of an applicant for social security disability benefits based on alcoholism and related illnesses for the failure of the applicant to introduce evidence that the applicant suffered from cancer serious enough to have his voicebox removed since the surgery occurred just before the Appeals Council made its final decision on the applicant's claim.

§ 56[j] Hospitalization subsequent to administrative hearing—Phlebitis

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of phlebitis arising out of a hospitalization after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Newhouse v. Heckler, 753 F.2d 283, 8 Soc. Sec. Rep. Serv. 237, Unempl. Ins. Rep. (CCH) ¶15833 (3d Cir. 1985), related reference, 1988 WL 6169 (E.D. Pa. 1988), implicitly held that good cause existed to support a remand of a claim for social security disability benefits pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) based upon additional evidence consisting of records of a hospitalization of the claimant 26 days after the Appeals Council affirmed the administrative law judge's decision terminating her disability benefits based on the absence of clinical evidence of disability. The court noted that the hospitalization reports showed that the claimant had completely obstructed veins in the left thigh as well as evidence of a positive Homan's sign.[FN12]

§ 56[k] Hospitalization subsequent to administrative hearing—Myasthenia gravis

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of myasthenia gravis arising out of a hospitalization after the administrative hearing considered, noted that the Commissioner of Social Security conceded that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Ward v. Schweiker, 686 F.2d 762 (9th Cir. 1982), noted that the Commissioner of Social Security conceded that good cause existed for the failure of an applicant for social security disability benefits to introduce earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) evidence arising out a hospitalization that she suffered from myasthenia gravis.[FN13]

§ 57. Lack of money

The courts in the following cases held that the inability of an applicant for social security disability benefits to present evidence earlier in a proceedings due to a lack of money constituted good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Zurek v. Shalala, 878 F. Supp. 314, 47 Soc. Sec. Rep. Serv. 303, Unempl. Ins. Rep. (CCH) ¶14304 (D.N.H. 1994), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure a claimant for social security disability benefits to introduce medical records indicating that the claimant had a large disk herniation at L4–5 left and the possible disk fragments first nerve root anomaly on the left recess which explained the pain the claimant was having in his leg and big toe. The court found compelling the claimant's explanation that the delay in obtaining the report was due solely to the fact that the claimant was forced to remain on a waiting list at the clinic where the claimant sought treatment and due lack of money or medical insurance could not undergo crucial full–scale diagnostic tests prior to, or at the time of, the administrative hearing.
comment However, the court held that good cause did not exist with regard to reports and conclusions from consulting orthopedic and neurologic examinations to be conducted in the future since allowing subsequent and entirely new consultative orthopedic and neurologic examinations did not comport with the standard of allowing new evidence which is material only if there is a good cause for failing to incorporate the evidence into the record in a prior proceeding since although new examinations might provide material evidence which could shed additional light on the claimant's condition the claimant had failed to provide good cause for not having previously conducted these examinations.
In Barrera v. Secretary of Health and Human Services, 872 F. Supp. 24, 46 Soc. Sec. Rep. Serv. 421 (E.D.N.Y. 1995), the court held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) with regard to the failure of the claimant to submit a physician's report that the claimant had severe neuritis affecting her neck and lower back and radiating down the right leg, causing "unremitting pain, even when sitting," and making "it impossible for her to work" because the claimant did not have sufficient funds to obtain a neurological examination prior to the administrative hearing.
The court in Santiago v. Shalala, Unempl. Ins. Rep. (CCH) ¶14640B, 1995 WL 224622 (S.D.N.Y. 1995), judgment vacated, 1995 WL 358793 (S.D.N.Y. 1995), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of the claimant to introduce a postadministrative hearing diagnosis of the claimant as suffering from severe depression since the claimant at the time of the administrative hearing could not afford medical treatment and, therefore, did not seek psychiatric treatment and the claimant's attorney failed to request such a psychiatric evaluation. While the court noted that in the Second Circuit a claimant must go beyond showing that the proffered evidence did not exist during the pendency of the administrative proceeding and establish good cause for failing to produce and present the evidence at the time of the administrative hearing, the court also observed that the courts in assessing good cause have consistently focused on whether claimants exercised good faith in coming forward with new evidence as soon as it was known and found no evidence in its review of the record that the claimant knowingly withheld evidence or that there was any attempt to improperly manipulate the administrative process.
But see Torres v. Schweiker, 682 F.2d 109 (3d Cir. 1982), where the court refused to consider an affidavit from the former attorney for a claimant for disability benefits based upon depression suggesting that good cause existed since neither the applicant nor her attorney could afford to obtain additional psychiatric examinations where the affidavit had not been presented to the district court, and Haywood v. Sullivan, 888 F.2d 1463, 27 Soc. Sec. Rep. Serv. 524, Unempl. Ins. Rep. (CCH) ¶15106A (5th Cir. 1989), where the court held that a psychiatric diagnosis 2 years after a hearing before the administrative law judge was not grounds for a remand to the Commissioner of Social Security under the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since such evidence, while new, ran into problems with the "good cause" prong of the sixth sentence of § 205(g). The court in the Haywood case stated that the claimant's good–cause argument based upon the fact that the administrative law judge refused her request for a psychological review at government expense was not convincing since while a consultative examination at government expense may be required if the record establishes that such an examination is necessary to enable the administrative law judge to reach an informed decision, such an examination is appropriate only where the claimant raises the "requisite suspicion" that such an examination is necessary for the administrative law judge to discharge his duty of full inquiry. The claimant failed to raise the suspicion, the court stated, since she based her disability claim on a heart condition and offered evidence focusing on that claimed disability. While evidence of the claimant's anxiety was recognized at the administrative hearing, the claimant's testimony did not indicate the necessity for psychological review nor did any doctors at that time recommend such a review. In addition, the court further noted that the claimant herself ultimately procured a psychological review placing a report of the findings in the record and the administrative law judge explicitly considered these findings.
The court in Felder v. Sullivan, 1992 WL 328848 (E.D. Pa. 1992), held that for purposes of the sixth sentence of § 205(f) of the Social Security Act (42 U.S.C.A. § 405(g))) good cause existed for the failure of an applicant for social security disability benefits based on mental and physical disabilities to introduce earlier in the proceedings a comprehensive psychological examination indicating that her mental condition was more severely limited than earlier evidence had shown, that she was mentally retarded under Social Security regulations, and was unable to communicate well with virtually no capacity for coping with printed matter as the applicant had shown that her indigent status prevented her from obtaining sophisticated testing prior to the hearing and that the commissioner did not order such an examination despite evidence of her impairment.
In holding that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) for the failure of an applicant to introduce earlier a psychological evaluation of him conducted after his application for disability benefits based on a knee injury was denied, the court in Humphrey v. Shalala, 1993 WL 313053 (N.D. Ill. 1993), observed that the applicant contended that he did not have the funds to have a psychological evaluation performed during the earlier proceedings and that good cause for failure to incorporate additional evidence had been found when the claimant has limited financial means by which to obtain a medical specialist.
The court, in Stubbs v. Apfel, 1998 WL 547107 (N.D. Ill. 1998), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of a claimant for social security disability benefits to introduce an MRI revealing a large central disk herniation with significant central stenosis and associated degenerative changes. The claimant failed to obtain the MRI results prior to the date the ALJ issued his decision or the date argument was submitted to the Appeals Council due to her inability to afford the tests earlier. The court found that the record and the facts before it did not provide any indication that the claimant withheld this evidence in an attempt to sandbag the defendant and found no bad–faith manipulation of the process. The court, therefore concluded that the claimant established good cause for her failure to submit the new evidence at an earlier date.
The court in Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 5 Soc. Sec. Rep. Serv. 259, Unempl. Ins. Rep. (CCH) ¶15430 (9th Cir. 1984), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) good cause existed for the failure of the claimant to present to the administrative law judge a medical report stating that the claimant was totally disabled as the claimant was a man of limited financial means and was apparently unable to find a qualified medical specialist to review his records within the time allotted by the administrative law judge.

§ 58. Surprise

The courts in the following cases held that applicants for social security disability benefits had established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the Commissioner of Social Security, but only upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, where rulings of the administrative law judge surprised the applicants.
In Haak v. Chater, 1996 WL 131723 (N.D. Ill. 1996), the court held for purposes of applying the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) that good cause existed for the failure of the claimant to obtain a medical report concerning the claimant's heart condition at the time he was last eligible for disability benefits in the case of a claimant whose claim for benefits was denied on the grounds that although the claimant had a history of heart problems, no medical evidence existed that his heart problems were present prior to December 31, 1988, the date the claimant was last eligible for benefits, since the claimant did not believe that an additional medical report would be required as he was hospitalized for cardiac problems 37 days after the last date on which the claimant could qualify for disability benefits.
The court in Wysocki v. Sullivan, 761 F. Supp. 693, 33 Soc. Sec. Rep. Serv. 287, Unempl. Ins. Rep. (CCH) ¶16305A (C.D. Cal. 1991), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) where the administrative law judge had granted the applicant's claim without a hearing and had failed to inform the applicant of his right to a postdecision oral hearing. The court noted that the notice accompanying the administrative law judge's decision affirmatively misled the applicant into believing that his only remedies consisted of Appeals Council review and federal court action, respectively, and that the commissioner's violation of his own regulations and the misleading nature of the notices excused the applicant's failure to request a postdecision oral hearing to consider unspecified medical evidence concerning the onset date of his disability and furnished good cause for the previous failure of the applicant to incorporate his testimony into the administrative record.

§ 59. De minimis late filing

The court in the following case held that a claimant for social security disability benefits had established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to present medical records where the new evidence was not received by the Appeals Council until 1 day after the deadline for filing such evidence.
In Milano v. Bowen, 809 F.2d 763, 16 Soc. Sec. Rep. Serv. 158, Unempl. Ins. Rep. (CCH) ¶17159 (11th Cir. 1987), the court held that good cause existed to support a remand to the Commissioner of Social Security pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in the case of a claimant who submitted a psychological evaluation after the administrative law judge denied a claim based on physical ailments. Noting that in the past good cause for failing to present evidence may have existed where the evidence did not exist at the time of the administrative proceeding, the court said that in the instant case the evidence was available, but simply was not considered by the Appeals Council because it was not timely filed. However, the court ruled that a filing mailed 1 day after the extended time period satisfied the good–cause requirement of § 205(g) since the procedural default was de minimis as ample time remained for the Appeals Council to consider and act upon the evidence submitted by the claimant. The court stated that the good–cause requirement reflected a congressional determination to prevent bad–faith manipulation of the administrative process and the claimant's procedural default did not reflect any bad–faith attempt to manipulate the administrative process, but rather an attempt, though unsuccessful, to fully comply with administrative requirements.

§ 60. Failure to present existing evidence

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability benefits failed to present existing evidence to the administrative law judge or to the Appeals Council held that the applicants had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, where—
—an applicant who had back and neck problems and a history of coronary heart disease failed to introduce earlier in the proceeding 5 medical reports of physicians who examined the applicant after the administrative law judge had denied the claim of the applicant as 4 out of the 5 proffered reports were dated prior to the decision of the Appeals Council and the claimant had not demonstrated good cause for his failing to submit them to the Appeals Council. LaRiviere v. Sullivan, Unempl. Ins. Rep. (CCH) ¶16366A, 1991 WL 327431 (D.R.I. 1991).
—an applicant based upon her depression and chronic alcoholism neither proffered any mental health evidence nor explained why she neglected to present such evidence earlier in the proceeding. Caron v. Shalala, 1994 WL 484346 (D.N.H. 1994).
—a woman with cardiac and psychiatric ailments failed to produce records of her stay at a psychiatric hospital as she failed to make a written request for the subpoena 5 days before the hearing, as required by the statute, did not raise the issue before the Appeals Council or the magistrate, but moved for judgment on the pleadings despite the fact that the records had not been produced and, though represented at all times by counsel, did not even identify any information in the record that might have altered the commissioner's decision. Morales v. Bowen, Unempl. Ins. Rep. (CCH) ¶14145A, 1988 WL 78375 (S.D.N.Y. 1988).
—the applicant's claim that he did not "discover" that he had hypertension until 1995 was not credible given the fact that he had testified that he had taken medication to control his blood pressure since 1987 Fonseca v. Chater, 953 F. Supp. 467, 52 Soc. Sec. Rep. Serv. 831, Unempl. Ins. Rep. (CCH) ¶15730B (W.D.N.Y. 1997), judgment aff'd, 141 F.3d 1151 (2d Cir. 1998).
—the claimant at the administrative hearing in August 1994 did not introduce evidence that he had be had been treated at a hospital April 11, 1994 for knee and leg pain. Luckett v. Chater, 1997 WL 55948 (S.D.N.Y. 1997).
—an applicant failed to introduce a psychiatric evaluation and progress notes in existence at the time of the decision of the Appeals Council and offered no indication why he did not present the psychiatric evaluation to the Appeals Council for consideration. Roman v. Apfel, 24 F. Supp. 2d 263 (D. Conn. 1998).
—the attorney for the applicant did not explain why his brief of May 10, 1990 in support of his request for Appeals Council review failed to mention the January 1990 hospital stay to which he now attached great importance. Jones v. Sullivan, 954 F.2d 125, 36 Soc. Sec. Rep. Serv. 189, Unempl. Ins. Rep. (CCH) ¶16438A (3d Cir. 1991).
—an applicant based in part on legal blindness who was represented by counsel, had not introduced evidence concerning an eye examination of the applicant taking place prior to the administrative hearing though the statutory blindness requirements had not been altered, there was no evidence to suggest that the claimant's eye impairment included a degenerative condition as the physician found the abnormality of the fundus to be congenital in origin and the applicant did not challenge any medical findings as to his visual impairment. Torres v. Harris, 502 F. Supp. 518 (E.D. Pa. 1980).
—medical records of the back condition of an applicant were available before the date of the administrative hearing, but were not presented to the administrative law judge. Utkus v. Sullivan, 1989 WL 86599 (E.D. Pa. 1989).
—the evidence of the side effects of medicine the applicant was taking came from the Physician Desk Reference and had clearly been available throughout the course of the proceedings. Lafrance v. Sullivan, 1992 WL 125404 (E.D. La. 1992).
—the applicant failed to submit his doctor's notes after the administrative law judge gave the applicant time to get a copy of his doctor's notes, gave him a pre–addressed, stamped envelope for that purpose and told the claimant to seek the judge's help if needed, and the claimant had no explanation concerning the matter. Weissmiller v. Secretary of Health and Human Services, 785 F.2d 311 (6th Cir. 1986).
—a claimant who had failed to present additional medical reports to the district court did not explain why the information was not incorporated into the record in any prior proceeding. Stone v. Secretary of Health & Human Services, 823 F.2d 553 (6th Cir. 1987).
—the applicant had not made any showing that good cause existed for the failure to present unspecified additional medical evidence earlier in the proceedings. Casey v. Secretary of Health and Human Services, 987 F.2d 1230, 40 Soc. Sec. Rep. Serv. 335, Unempl. Ins. Rep. (CCH) ¶17208A (6th Cir. 1993).
—the evidence in question could have or should have been obtained before the administrative hearing and the applicant made no attempt to show why he did not submit such evidence to the administrative law judge. Burden v. Chater, 79 F.3d 1150 (7th Cir. 1996).
—a physician's note which existed during the claimant's administrative hearing was not submitted until the case went to the Appeals Council and there was no apparent justification for the delay. Moomey v. Apfel, 3 F. Supp. 2d 970, 57 Soc. Sec. Rep. Serv. 268 (C.D. Ill. 1998).
—an applicant did not introduce into administrative hearing records concerning her treatment for obesity and hypertension and submitted only a one–page report of her treatment to the Appeals Council when more extensive records had existed without providing any reasons for withholding medical records. Perryman v. Shalala, 1994 WL 163912 (N.D. Cal. 1994).
—an applicant based upon diabetes, obesity, hypertension, joint pain, and carpal tunnel syndrome failed to introduce earlier in the proceedings medical evidence supporting the answers given by a physician to a questionnaire submitted to the Appeals Council. Hobson v. Sullivan, 1992 WL 402017 (D. Kan. 1992).
The court in Stewart v. Chater, 1996 WL 534832 (E.D.N.Y. 1996), stated that even if evidence of additional seizures and disruptive classroom behavior on the part of a claimant for Social Security benefits was not cumulative, the claimant's mother had not shown good cause for failing to present reports on her child's behavior to the administrative law judge as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court noted that the record contained a copy of a letter sent to the claimant's mother by the Department of Social Services Office of Disability Determinations requesting that she list all medications being taken by her son and provide the names of his doctors, teachers, or other individuals with relevant information, in order to make the record complete, that the administrative law judge asked her several times whether she had anything to add to the record, and that the child's medical records and report cards were readily available to the mother at the time of the hearing, but the applicant did not attempt to explain why she did not produce them at that time. The court stated that under these circumstances a finding of "good cause" would be inappropriate.
The court in Delores Alper for Sarah Alper v. Donna E. Shalala, Secretary of Health and Human Services, 1995 WL 141929 (E.D. Pa. 1995), reconsideration denied, 1995 WL 262540 (E.D. Pa. 1995), held that the claimant, an insulin diabetic, had not established good cause for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce into the administrative hearing records from prior hospitalizations since the records existed at the time of the hearing. The court rejected the claim that it was the administrative law judge's responsibility to seek out the reports and observed that to remand the applicant's claim would eliminate the responsibility of the applicant to present her case for disability before the commissioner. The court commented that at some point in time there must be a definite record upon which the commissioner can make a decision, and no determinations would ever occur if remands are permissible every time a party gathers new evidence that might affect the outcome of the case. Accordingly, "new evidence" remands should be narrowly circumscribed in order to facilitate the speedy dispositions of meritorious claims. In addition, the court held that the applicant had not established good cause for failing to introduce evaluations by the applicant's teachers prepared after the administrative hearing because the information contained in the evaluations was available to the claimant at the time of the administrative hearing and the claimant had just not requested the evaluations from the teachers before the administrative hearing.
The court in Hinchey v. Shalala, 29 F.3d 428, 45 Soc. Sec. Rep. Serv. 16, Unempl. Ins. Rep. (CCH) ¶14001B (8th Cir. 1994), held that a claimant for Social Security benefits was not entitled to a further hearing before the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) since good cause was lacking for the failure of the claimant to provide medical evidence concerning her condition in 1981 when the administrative law judge offered to keep the record open to allow the claimant to get more information on the disability, the attorney for the claimant stated that he would get some more information from her doctors saying that she couldn't have worked back then. The claimant did not get the letter from the doctor until May 1993 though the hearing was in January 1991 and the administrative law judge rendered his decision in June 1991. The court stated that the claimant's assertion that she could not have foreseen the need for the clarifying report until such a late date was simply not supported by the record and under these circumstance there was not good cause for the delay.
The court in Scarpati v. Secretary of Health and Human Services, 5 F.3d 539 (9th Cir. 1993), held that a woman who sought disability benefits based on having dyshydrotic eczema (pompholyx) on her hands which causes a painful burning rash, often accompanied by fissures in the skin, bleeding, and lichenification, had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce earlier evidence concerning her psychological problems since the only reason the evidence was not available at the time of the administrative hearing was the failure of the applicant to make any effort to present the information to the administrative law judge. The court distinguished cases cited by the applicant as involving cases where the evidence could not have been introduced at the time of the administrative proceedings that were readily distinguished from the instant case where the applicant made no effort to assemble the evidence at the administrative hearing. While the applicant argued that the reason she did not bring the information before the administrative law judge was due to her embarrassment over the fact that she suffered from depression and received psychological counseling, the court stated there was no authority supporting the proposition that embarrassment alone can constitute good cause for a failure to bring evidence before an administrative law judge as all physical impairments and disabilities have some element of embarrassment or shame associated with them and permitting a remand whenever embarrassment is alleged would allow almost every litigant a second round of administrative hearings.
comment The court in the Scarpati case did not foreclose the possibility that a litigant could demonstrate embarrassment sufficient to constitute good cause for a failure to introduce evidence, but simply held that the district court did not abuse its discretion in concluding that the applicant in the instant case had not demonstrated good cause.
The court in Williams v. Shalala, 35 F.3d 573 (9th Cir. 1994) (publication and use restricted), held that an applicant for social security disability benefits based upon injuries arising out of a car crash where his right leg was amputated had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce evidence of 6 hospitalizations prior to the administrative hearing which described the applicant's various afflictions: reactive depression, alcohol dependency, severe depression, atypical psychosis, alcohol and poly–substance abuse, antisocial personality, adjustment disorder with mixed emotional features, and schizo–affective schizophrenia. The court stated that while the applicant had demonstrated that some of the evidence was material he had failed to demonstrate the requisite good cause for his failure to submit the evidence to the administrative law judge or even to the district court since he failed to show that he could not have obtained the evidence at the time of either the administrative or the district court hearings.
The court in Dallas v. Chater, 1995 WL 789004 (N.D. Cal. 1995), aff'd, 105 F.3d 664 (9th Cir. 1997), held that a claimant for social security disability benefits had not shown for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) that good cause existed for not introducing medical reports concerning his vision at the administrative hearing since most of the reports existed at the time of the administrative hearing.
See Brown v. Schweiker, 557 F. Supp. 190, 1 Soc. Sec. Rep. Serv. 649 (M.D. Fla. 1983), where the court held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) had not been established with respect to 8 medical reports that had not been introduced at the administrative hearing because the reports were not made until after the administrative hearing since the applicant for social security disability benefits had not shown why they were not presented to the commissioner under the late–evidence procedures found in 20 CFR §§ 404.957, 404.958. The court stated that Congress had expressed a desire that disability claims should be disposed of quickly so that truly needy claimants could have their cases processed without the backlogs caused by needless remands for "new evidence" and at some point in time there must be a definite record upon which the commissioner can make a decision.

CUMULATIVE SUPPLEMENT

Cases:

Claimant was not entitled to remand of order denying his claims for disability insurance benefits and supplemental security income (SSI) benefits for consideration of physician's letter supporting his claim, absent explanation was to why he failed to obtain letter at time when it could have been considered by ALJ, or why he waited two years to attempt to obtain letter. Fouch v. Barnhart, 80 Fed. Appx. 181 (3d Cir. 2003).
Claimant failed to establish good cause for presenting new evidence regarding his intellectual functioning after ALJ had rendered his decision denying claim for disability insurance benefits, and thus claimant was not entitled to remand for presentation of additional evidence, where claimant did not attempt to establish impairment at hearing based on his alleged borderline intellectual functioning, evidence supporting new theory of disability was available throughout entire period, and there was no evidence that claimant's alleged borderline intellectual functioning ever interfered with his ability to engage in substantial gainful activity. Cooper v. Commissioner of Social Security, 277 F. Supp. 2d 748 (E.D. Mich. 2003).

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§ 61[a] Unavailability of existing evidence—Good cause found

The courts in the following cases held that claimants for social security disability benefits had established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, that is, for failing to present evidence earlier in the proceedings since such evidence, while in existence, was not obtainable.
The court, in Geracitano v. Callahan, 979 F. Supp. 952, 54 Soc. Sec. Rep. Serv. 580, Unempl. Ins. Rep. (CCH) ¶16022B (W.D.N.Y. 1997), held that good cause existed for the applicant's failure to introduce at the administrative hearing a letter in existence at the time of the hearing, but not known by the applicant. The court held that good cause existed since the applicant was unaware of a letter, and where the letter was not addressed to the applicant and was apparently prepared in relation to Medicaid benefits and not in relation to the Social Security claim. The court further reasoned that even if the applicant or his attorney had contacted the Department of Social Services for medical records, it is possible that no one would look for such data in a Medicaid file.
In Pate v. Heckler, 777 F.2d 1023, 11 Soc. Sec. Rep. Serv. 285, Unempl. Ins. Rep. (CCH) ¶16546 (5th Cir. 1985), the court stated that there was no question that good cause existed for the failure of a woman who sought Social Security benefits on the basis of mental illness to introduce earlier in the proceedings, as required by sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), additional evidence consisting of a memo indicating that the claimant had seen a psychiatrist 11 times between mid–1982 and mid–1983, a psychological report, and an IQ test, because the documents were not available until after the administrative law judge's decision.
comment However, the court declined to remand the case because the evidence was not material.
The court in Blackburn v. Heckler, 615 F. Supp. 908, 11 Soc. Sec. Rep. Serv. 367, Unempl. Ins. Rep. (CCH) ¶16578 (N.D. Ill. 1985), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) that the good–cause requirement for the failure of an applicant for social security disability benefits based on his alcoholism to introduce records of hospitalizations for coughing and vomiting blood was satisfied by an affidavit of the applicant's counsel reflecting that the unavailability of the evidence was attributable to forces beyond his control.
The court in Pickett v. Bowen, 1986 WL 8048 (N.D. Ill. 1986), held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) existed for the failure of an applicant for social security disability benefits based upon arthritis, hypertension, obesity, and migraine headaches to introduce earlier in the proceedings records of her treating physician regarding limitations, including ability to walk, lift, push, pull, or perform other normal flexion operations, since the failure of the applicant to produce the records before the administrative law judge was due to her physician's recalcitrance in the face of repeated requests by the applicant's counsel and the administrative law judge. While the government argued that counsel for the applicant should have requested a subpoena and that the applicant should not be given a second bite at the apple in the absence of such a request, the court could not agree since the regulation authorizing subpoenas to obtain medical records is written permissively so the court felt that the applicant had no obligation to secure a subpoena for purposes of supplementing the record since if the applicant had such an obligation, it was an obligation that, under the clear language of the regulation, the commissioner shared and it would be unjust to find only the applicant in default. The court concluded it had no reason to question the good faith of the applicant's efforts to obtain the medical records in light of the administrative law judge's lack of success in obtaining them.
The court in Palmore v. Department of Health and Human Services, 1989 WL 152377 (N.D. Ill. 1989), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of the applicant to introduce 4 sets of hospital records consisting of (1) a request for physical examination dated November 17, 1972; (2) a radiographic report from a physician dated September 27, 28, 1973; (3) a report from another physician dated sometime in 1988; and (4) a radiology report dated April 13, 198, since the applicant alleged that the Veterans Administration suppressed the records and the applicant commented during his hearing before an administrative law judge that he was having difficulty obtaining his records from the Veterans Administration hospital and it was unclear whether all the records had, in fact, been produced. Accordingly, it appeared to the court that the applicant had cause for his failure to bring the record forward in the administrative proceeding.

§ 61[b] Unavailability of existing evidence—Not found

The courts in the following cases held that claimants for social security disability benefits had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, that is, for failing to present medical records concerning the alleged disability which were allegedly unobtainable.
The court in Dombrowski v. Chater, 960 F. Supp. 558, 53 Soc. Sec. Rep. Serv. 344, Unempl. Ins. Rep. (CCH) ¶15759B (N.D.N.Y. 1997), held that a claimant for social security disability benefits based upon alcoholism had not established good cause under the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce new evidence in the form of records from an alcohol treatment center relating to his admission from October 31, 1994, to November 2, 1994, after an incident during which he discharged a weapon at home while he was intoxicated. While the claimant argued that records could not be obtained during his appeal to the Appeals Council since he had to execute a special release form in order to obtain the information from the rehabilitation facility, there was difficulty in obtaining the release and the claimant assumed that, though the Appeals Council had granted an extension to submit the records, it was not likely to grant any further extension of time to do so, the court stated that having obtained one extension from the Appeals Council the claimant could not just assume that a second request would not be granted. In addition, the court found that the claimant appeared not use due diligence in obtaining the release form, executing it, and obtaining the records.
The court in Wyatt v. Secretary of Health and Human Services, 12 F.3d 216 (6th Cir. 1993) (publication and use restricted), held that an applicant for social security disability benefits based upon frequent pain in several parts of her body, a weak grip, and shortness of breath had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) as the court saw no reason why the report was not submitted to the administrative law judge until August 6, 1990 when it was based upon an examination prior to such date. The court stated that upon the failure of the Appeals Council to review a decision of the administrative law judge the record for purposes of § 205(g) consists only of the evidence presented to the administrative law judge and not evidence presented to the Appeals Council for the first time.

§ 62[a] Lack of counsel—Good cause found

The courts in the following cases, in which applicants for social security disability benefits had established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g))) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security but only upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, noted that the applicants were not represented by counsel.
See MacKinnon v. Bowen, Unempl. Ins. Rep. (CCH) ¶14639A, 1989 WL 270105 (D. Mass. 1989), where the court held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) had not been established for the failure of an applicant for Social Security benefits based upon various physical ailments and depression due to gender dysphoria arising out of her condition as a transsexual to introduce earlier in the proceeding a report from a psychiatrist treating the applicant stating that she was a candidate for sex reassignment surgery, required treatment by medication, and that her depression continued to interfere markedly with her ability to work, and the court stated that the applicant had to provide some justification for not producing the evidence at the time of the hearing, but there was no justification in the record such as an allegation that she lacked representation.
See LaRiviere v. Sullivan, Unempl. Ins. Rep. (CCH) ¶16366A, 1991 WL 327431 (D.R.I. 1991), where the court in holding that an applicant for social security disability benefits who had back and neck problems and a history of coronary heart disease had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to submit to the Appeals Council 4 reports dated prior to the decision of the Appeals Council of physicians who examined the applicant after the administrative law judge had denied the claim of the applicant noting that the applicant did not allege that he lacked representation.
In LeClerc v. Shalala, 1994 WL 461696 (D.N.H. 1994), decision supplemented, 1994 WL 504361 (D.N.H. 1994), related reference, Unempl. Ins. Rep. (CCH) ¶15522B, 1996 WL 537710 (D.N.H. 1996), the court in a case where the claimant for social security disability benefits had presented at the administrative hearing medical records showing positive test results for infection with hepatitis B and a physician's note that he had been tired and was "definitely infectious" held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of the claimant to introduce at the administrative hearing additional medical records consisting of a report of test results for the hepatitis B virus dated August 14, 1994, the current treating physician's examination notes covering the period from March 1993 through October 1993, and the physician's note dated August 2, 1994, stating that the applicant had been treated for fatigue and that hepatitis can cause recurring fatigue. The court noted that the claimant was not represented by counsel while appearing before the administrative law judge and, while claiming that his disability caused by severe lower back pain due to a ruptured disk was substantially increased by fatigue caused by his infection with the hepatitis B virus, the applicant did not supply to the administrative law judge medical records sufficiently addressing his claims to resolve the question of disability—a gap the claimant filled with the additional medical records.
In Rivera v. Secretary of Health, Ed. and Welfare, 513 F. Supp. 194 (S.D.N.Y. 1981), the court in holding that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for social security disability benefits based upon back problems to introduce earlier into the proceedings an affidavit of a physician who had been treating the applicant over an 8–year period for back problems, noted that the applicant was a Spanish–speaking person unrepresented by counsel and might not have realized the importance attached to the testimony of the treating physicians.
In Flanders v. Chater, Unempl. Ins. Rep. (CCH) ¶15040B, 1995 WL 608287 (S.D.N.Y. 1995), related reference, 1995 WL 672457 (S.D.N.Y. 1995), the court, in holding that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure to produce at the administrative hearing reports of the claimant's treating neurologist and orthopedist prepared approximately a year after the administrative hearing, noted that the claimant was not represented by counsel.
In Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 7 Soc. Sec. Rep. Serv. 127, Unempl. Ins. Rep. (CCH) ¶15549 (3d Cir. 1984), the court, in finding that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failure of a claimant seeking social security disability benefits on the basis of polyneuritis, severe anxiety syndrome, and great pain to submit 5 reports from physicians postdating the administrative hearing, noted that the claimant was not represented by counsel until after the administrative law judge's decision.
The court in Hawkins for Reilly v. Heckler, 631 F. Supp. 711, 13 Soc. Sec. Rep. Serv. 616, Unempl. Ins. Rep. (CCH) ¶16867 (D.N.J. 1985), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for child insurance benefits to introduce earlier into the proceedings reports from a psychiatrist that the applicant had apparently sustained a birth injury causing a syndrome either similar to or consistent with cerebral palsy probably due to a lack of oxygen at birth and that the applicant could not then be expected to support herself and a report from a psychologist stating that the applicant was disabled long before her twenty–second birthday and had never been able to adequately handle any sort of competitive job with criteria for output or reliability because the applicant and the person assisting her in filing her claim were not represented by counsel at the hearing before the administrative law judge.
The court in Utkus v. Sullivan, 1989 WL 86599 (E.D. Pa. 1989), in holding that an applicant for social security disability benefits based upon back problems had shown good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to provide medical evidence which was created after his April 18, 1978 administrative hearing noted that the claimant was not represented by counsel having waived his right to counsel.
In Sears v. Bowen, 840 F.2d 394, 20 Soc. Sec. Rep. Serv. 552, Unempl. Ins. Rep. (CCH) ¶17904 (7th Cir. 1988), the court, in holding that a claimant whose claim was based originally upon glaucoma had demonstrated good cause for purposes of applying the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since the report describing the psychiatric problems did not exist until after the Appeals Council had denied the applicant's claim, noted that it was evident that the claimant was uninformed in procedural matters and was represented by lay advocates, rather than legal counsel, whose endeavors left much to be desired and this fact supported the court's conclusion that good cause existed for the applicant's failure to present the evidence below.
The court in Woods v. Bowen, 1988 WL 247678 (N.D. Ill. 1988), related reference, 778 F. Supp. 976, 35 Soc. Sec. Rep. Serv. 741, Unempl. Ins. Rep. (CCH) ¶16545A (N.D. Ill. 1991), in holding that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for social security disability benefits based on an ulcer and severe back pain to introduce earlier in the proceedings a physical capacities evaluation of the applicant prepared after the decision of the administrative law judge denying the applicant's claim, stated that remand was necessary especially in light of the fact that the applicant was not represented by counsel before filing his appeal to the district court.
The court in Roe v. Shalala, 1995 WL 27530 (N.D. Cal. 1995), in holding that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of a claimant who sought Social Security supplemental security income benefits due to hypertension, asthma, hypothyroidism, and partial right–eye blindness to introduce before the administrative law judge a neuropsychological evaluation concluding that the applicant was "disabled from working due to mental slowness, difficulty processing information of any complexity whatsoever, lack of ability to sustain attention over time, and memory problems," noted that the claimant was not represented by counsel at the administrative proceedings.

§ 62[b] Lack of counsel——Not found

The courts in the following cases, in which it was held that applicants for social security disability benefits had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, noted that the applicants were not represented by counsel.
The court in Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 18 Soc. Sec. Rep. Serv. 711, Unempl. Ins. Rep. (CCH) ¶17493 (1st Cir. 1987), in holding that a claimant for social security disability benefits based on low back pain was not entitled to a remand of her case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) to consider a report of a doctor retained to evaluate the claimant's condition for disability, stated that the claimant's argument that his self–representation of and by itself satisfied the good–cause requirement had to fail as Congress plainly intended that remands for good cause should be few and far between so that the process not bog down and unduly impede the timely resolution of Social Security appeals.
In Fonseca v. Chater, 953 F. Supp. 467, 52 Soc. Sec. Rep. Serv. 831, Unempl. Ins. Rep. (CCH) ¶15730B (W.D.N.Y. 1997), judgment aff'd, 141 F.3d 1151 (2d Cir. 1998), the court, in holding that a claimant for social security disability benefits had not established good cause for not introducing various additional evidence at an earlier proceeding for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), observed that while the pro se status of a claimant is a factor in determining whether good cause exists, the claimant began his treatment for high blood pressure several months prior to his first hearing on November 18, 1987, where he was represented by counsel and did not allege an impairment resulting from high blood pressure. In addition, the court noted that when the claimant appeared pro se in 2 subsequent hearings he demonstrated an understanding of the hearing process and the need to submit medical evidence relevant to his case, testified that he was familiar with the documents being considered in his case, and submitted additional evidence at the hearing that he said completed the record. Accordingly, the court found that the claimant's pro se status was insufficient to provide good cause for failing to present the evidence during any of the proceedings.
In Cruz-Santos v. Callahan, 55 Soc. Sec. Rep. Serv. 789, 1998 WL 175936 (D.N.J. 1998), the court, not rendering a determination on either the newness or materiality prongs of sentence six of 42 U.S.C.A. § 405(g) due to the ambiguities involved, based its holding on the good–cause requirement under sentence six of § 405(g) and found that good cause was not shown for failing to incorporate evidence, proffered in a remand motion, at the administrative proceeding. The claimant's show of good cause was based on the fact that his current counsel began representation after the administrative law judge's (ALJ)determination. The court was not persuaded that the evidence proffered in the current motion could not also have been presented at the ALJ hearing. The record indicated that the claimant and his original attorney exercised reasonable diligence in collecting evidence and that the claimant made no issue of the sufficiency or diligence of his former counsel in obtaining evidence supporting his claim. In the absence of such claim, and in the absence of any case law supporting the proposition that a change of counsel, alone, constitutes good cause, the court was unpersuaded that good cause had been established in the current case.
The court held that an applicant for social security disability benefits based upon a number of physical ailments had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce a psychological evaluation prepared after the Appeals Council had denied the applicant's request for review of the administrative denial of his claim which showed that the applicant suffered from several mental impairment and had an IQ of 70, the court in Webb v. Shalala, 1993 WL 460843 (N.D. Ill. 1993), related reference, 1994 WL 11652 (N.D. Ill. 1994), rejected the applicant's argument that good cause was established by the fact that the applicant was not represented by counsel in the administrative proceedings since the applicant represented himself adequately before the commissioner in presenting evidence relevant to his claims for physical disabilities and showed that he understood procedural matters, appealed adverse rulings promptly and when his claim ultimately was denied he consulted an attorney so he was not "uninformed" about his case.
The court in Mitchell v. Shalala, 48 F.3d 1039, 47 Soc. Sec. Rep. Serv. 48, Unempl. Ins. Rep. (CCH) ¶14397B, 31 Fed. R. Serv. 3d (LCP) 419 (8th Cir. 1995), in declining to order the district court to remand the case of a worker seeking social security disability benefits for further hearing pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where the worker stated at his hearing that he could read, but upon appeal from the denial of his claim presented a report indicating that he was not literate and read at a second–grade level, noted that it had previously found in denying the employee's motion for relief from the district court's judgment that it was not persuaded by the employee's claim that the delay in raising the literacy issue was due to the fact that he was not represented by counsel since he retained counsel within 12 days of the denial of review of the administrative law judge's decision by the Appeals Council, but the evaluation was not obtained until after the district court's decision over a 1 1/2 years later.
In Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 4 Soc. Sec. Rep. Serv. 129, Unempl. Ins. Rep. (CCH) ¶15163 (9th Cir. 1984), the court in holding that a plumber with a bachelor's degree in fine arts who had filed claims for social security disability insurance benefits in 1979 alleging disability since 1971 due to arthritis, back and respiratory problems, and at the hearing before the administrative law judge presented evidence of mental problems was not entitled to a remand of his case to the Commissioner of Social Security based upon the results of objective psychological tests and psychiatric evaluations prepared after the administrative hearing, noted that the only explanation the claimant offered for his failure to obtain the evidence earlier was that he was not represented by an attorney at the administrative hearing, but that this did not explain the claimant's failure to introduce the evidence in the district court.
In Dallas v. Chater, 1995 WL 789004 (N.D. Cal. 1995), aff'd, 105 F.3d 664 (9th Cir. 1997), the court, in holding that a claimant for social security disability benefits had not shown for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) that good cause existed for not introducing medical reports concerning his vision at the administrative hearing since most of the reports existed at the time of the administrative hearing, rejected the argument of the claimant good cause existed because he was not represented by counsel during the administrative hearing and narrow legal questions had to be asked of the treating physician in order to determine that the applicant's condition had worsened after the 1982 hearing. The court noted that the claimant cited no authority to support his position and stated that, like the claimant in Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 4 Soc. Sec. Rep. Serv. 129, Unempl. Ins. Rep. (CCH) ¶15163 (9th Cir. 1984), the claimant knew of his medical condition and had been tested for the condition by a physician yet offered no justification for his failure to provide this information at the hearing despite the fact that he must have known that the records were obtainable.

§ 62.5. Unspecified medical evidence

[Cumulative Supplement]

The following authority adjudicated whether there was good cause for failing to present unspecified medical evidence.

CUMULATIVE SUPPLEMENT

Cases:

Remand of a claim for social security disability benefits for further administrative procedures is an appropriate remedy where there are gaps in the administrative record, where the ALJ has applied an improper legal standard, or where new, material evidence is adduced that was not produced before the agency. Social Security Act, §§ 1 et seq., 42 U.S.C.A. §§ 301 et seq. Teta v. Barnhart, 305 F. Supp. 2d 240 (E.D. N.Y. 2004).
Remand, for consideration of purported newly-acquired medical evidence, was not warranted in social security disability benefits case; claimant showed no good cause for her failure to acquire the information prior to her hearing, and there was no reasonable probability that the new evidence would have caused the Commissioner to reach a different conclusion. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Scatorchia v. Commissioner of Social Sec., 137 Fed. Appx. 468 (3d Cir. 2005).
New evidence, in form of medical documents obtained by claimant after the administrative hearing, did not warrant remand of her claim for social security disability benefits, even though all documents were new and some were material; there was no good cause why any of them could not have been submitted to the ALJ at the hearing. Smith v. Commissioner of Social Sec., 80 Fed. Appx. 268 (3d Cir. 2003).
District Court did not err, in social security disability benefits case, in refusing to remand case for consideration of alleged new evidence; claimant did not provide good cause why the evidence was not presented to the ALJ before he issued his decision, inasmuch as she only stated that she "made a motion to supplement the record" but did not specify where the motion was located or if the alleged new evidence was part of that motion. Pasco v. Commissioner of Social Sec., 137 Fed. Appx. 828, 2005 FED App. 0540N (6th Cir. 2005).
Social Security claimant was not entitled to remand for consideration of evidence submitted in support of subsequent, successful application for disability, in attempt to obtain retroactive award of benefits, where he did not shown good cause for failing earlier to present new medical evidence relied on in subsequent application. Duggan v. Barnhart, 66 Fed. Appx. 730 (9th Cir. 2003).
Claimant seeking social security benefits for a disability was not entitled to remand on basis of medical records not presented at time of the administrative hearing; good cause was not established for failure to present the records to the Appeals Council. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Rhodes v. Barnhart, 117 Fed. Appx. 622 (10th Cir. 2004).

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§ 63[a] Report or evaluation prepared after administrative hearing—Back injuries—good cause found

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security in order to have reports or evaluations of physicians prepared after the administrative hearing concerning back injuries considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in McNeil v. Heckler, 577 F. Supp. 212, 4 Soc. Sec. Rep. Serv. 428, Unempl. Ins. Rep. (CCH) ¶15843 (D. Mass. 1983), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for social security disability benefits who was shot in 1969 and 11 years later stopped working because the pain from the bullet became unbearable to introduce earlier into the administrative proceedings a vocational assessment report from a rehabilitation program and a myelogram revealing a "small midline and right–sided disk herniation at L4–5 space" since the myelogram did not exist during the administrative proceedings and the vocational assessment report was filed immediately after it was written with the Appeals Council.
The court in Rivera v. Secretary of Health, Ed. and Welfare, 513 F. Supp. 194 (S.D.N.Y. 1981), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for social security disability benefits based upon back problems to introduce earlier into the proceedings an affidavit of a physician who had been treating the applicant over an 8–year period for back problems since the applicant, a Spanish–speaking person unrepresented by counsel, might not have realized the importance attached to the testimony of the treating physicians and, in any case, administrative law judge was obligated to insure that the record was properly developed for the benefit of a pro se plaintiff yet according to the physician the commissioner made no effort to contact him in connection with applicant's claim.
The court in Utkus v. Sullivan, 1989 WL 86599 (E.D. Pa. 1989), held that an applicant for social security disability benefits based upon back problems had shown good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to provide medical evidence which was created after his April 18, 1978 administrative hearing. The court noted that the claimant was not represented by counsel having waived his right to counsel and that the administrative law judge did not give the claimant leave to file any relevant evidence created after the hearing.
comment The court stated that the claimant had not demonstrated good cause for failing to provide medical evidence available before the date of the administrative hearing or that his lack of counsel caused him clear prejudice or unfairness at the administrative hearing.
The court in Kindred v. Heckler, 595 F. Supp. 563, 7 Soc. Sec. Rep. Serv. 593, Unempl. Ins. Rep. (CCH) ¶15933 (N.D. Ill. 1984), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for social security disability benefits based on back problems to introduce into the administrative hearing medical evidence consisting of a CT scan report as well as an additional medical report from one of the physicians who examined the applicant prior to the administrative hearing in December 1982 stating that, based on examinations of the applicant in January, March, and April 1983, the applicant's pain had not diminished under the various drug therapies he had attempted and that he was considering hospitalizing the claimant for a myelogram as all the events giving rise to the new evidence occurred after the hearing before the administrative law judge. The court noted that some of the items of new evidence became part of the record because the applicant, then acting without assistance of counsel, included them as part of her application for Appeals Council review.
The court in Woods v. Bowen, 1988 WL 247678 (N.D. Ill. 1988), related reference, 778 F. Supp. 976, 35 Soc. Sec. Rep. Serv. 741, Unempl. Ins. Rep. (CCH) ¶16545A (N.D. Ill. 1991), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for Social Security disability benefits based on an ulcer and severe back pain to introduce earlier in the proceedings a physical capacities evaluation of the applicant prepared after the decision of the administrative law judge denying the applicant's claim. The court found the report was not available prior to the date of the final Appeal Council's decision not to review the applicant's case and stated that remand was necessary especially in light of the fact that the applicant was not represented by counsel before filing the appeal to the district court.
The court in Geigle v. Sullivan, 961 F.2d 1395, 37 Soc. Sec. Rep. Serv. 148, Unempl. Ins. Rep. (CCH) ¶16564A (8th Cir. 1992), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) when the claimant produced a report of the claimant's treating neurologist stating that the results of an MRI test showed that the claimant had a herniated disk at the C5–6 interspace which provided objective medical support for the claimant's subjective complaints of headaches, neck pain, and problems with her right arm and hand, including numbness, pain, and loss of motor control—all of which the administrative law judge had rejected as nonexistent in the absence of objective medical support—since the claimant's attorney stated by declaration filed with the district court that he did not receive the evidence until after the Appeals Council denied review.
The court in Wainwright v. Secretary of Health and Human Services, 939 F.2d 680, 34 Soc. Sec. Rep. Serv. 271, Unempl. Ins. Rep. (CCH) ¶16203A (9th Cir. 1991), held that an applicant for Social Security benefits based on disabling back pain had established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) for not submitting in an earlier proceeding a magnetic resonance imaging scan that her treating physician interpreted as showing a disk fragment in her spine because the scan submitted to the administrative law judge that did not show a disk fragment was made using a different technique and earlier software that did not have as high a degree of fine imaging. Acknowledging that a claimant does not meet the good–cause requirement simply by obtaining a more favorable report from an expert witness once his claim is denied where the new evidence was available earlier, the court stated that the good–cause standard is satisfied when new evidence is available due to advances in technology and, in the instant case, the improved magnetic resonance image was possible only due to an improvement in technology.
In Nelson v. Shalala, 21 F.3d 1114 (9th Cir. 1994) (publication and use restricted), the court held that good cause existed for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for social security disability benefits who had a history of lower back pain dating from before 1970 when he underwent surgery for a herniated disk to timely introduce to the Appeals Council evidence of a 1991 MRI and a 1992 EMG on the basis of which a Veterans Administration physician concluded in 1992 that he had a pinched nerve that required surgery and for not having the EMG study accomplished prior to the decision by the Appeals Council in February 1992. The court noted that physicians, not patients, order the tests, the results were not interpreted until May 1992 after the administrative hearing and declined to hold the applicant responsible for failing to introduce test results earlier.

§ 63[b] Report or evaluation prepared after administrative hearing——Not found

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of back injuries in the form of physicians reports or evaluations prepared after the administrative hearing considered, held that good cause did not exist for failing to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, where—
—the claimant failed to submit to the Appeals Council reports from a doctor concerning his back problems that were prepared prior to the date the Appeals Council rendered its decision. Dow v. Secretary of Health and Human Services, 1994 WL 258562 (D.N.H. 1994).
—a claimant sought to introduce a medical report concerning the condition of the claimant's back prepared 2 years after the last administrative hearing.Ramos v. Chater, 1996 WL 478639 (N.D. Cal. 1996).
—the claimant offered no reason for not obtaining reports from a vocational expert and an orthopedic surgeon dated after the administrative hearing prior to the administrative hearing. Heimerman v. Chater, 939 F. Supp. 832, 51 Soc. Sec. Rep. Serv. 968, Unempl. Ins. Rep. (CCH) ¶15659B (D. Kan. 1996).
The court in Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 18 Soc. Sec. Rep. Serv. 711, Unempl. Ins. Rep. (CCH) ¶17493 (1st Cir. 1987), held that a claimant for social security disability benefits based on low back pain was not entitled to a remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) to consider a report of a doctor retained to evaluate the claimant's condition for disability eligibility because Congress plainly intended that remands for good cause should be few and far between so that the process not bog down and unduly impede the timely resolution of Social Security appeals and stated that against this policy the claimant's argument that his self–representation of and by itself satisfied the good cause requirement had to fail.
The court in Lemire v. Shalala, 1994 WL 253557 (D.N.H. 1994), held that a claimant for social security disability benefits based on low back pain and posttraumatic stress disorder whose claim was denied on April 29, 1993 had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to submit medical reports issued in September and October 1993 by a consulting physician, stating that the claimant gave no reason why the report of the consulting physician was not sought and provided to the administrative law judge prior to the closing of the record. The court stated that Congress plainly intended that remands for good cause should be few and far between, that a yo–yo effect was to be avoided so that the process not bog down and unduly impede the timely resolution of Social Security appeals.
In Bradley v. Bowen, 809 F.2d 1054, 16 Soc. Sec. Rep. Serv. 163, Unempl. Ins. Rep. (CCH) ¶17157 (5th Cir. 1987), the court held a claimant for social security disability benefits based upon a back injury suffered while trying to move furniture was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where an orthopedic surgeon wrote a letter dated October 27, 1986 to an insurance company stating that the applicant was totally disabled and expressing doubt that the claimant could be sufficiently rehabilitated to engage in office employment when the claimant did not attempt any showing of good cause for the failure to incorporate the evidence into the prior administrative record other than the fact that the report was recently prepared.
In Guzman v. Shalala, 1995 WL 437720 (N.D. Cal. 1995), the court held that a claimant for social security disability benefits had not established that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of the claimant to introduce evidence in the form of treatment records and an interrogatory from a physician purportedly showing that the claimant's complaints of back pain were credible and that he was not able to perform his past relevant work as a roofer or to do any other medium or light work. While the claimant argued that good cause existed for the failure to introduce the reports because the reports were not in existence at the time of the hearing, the court stated that a claimant must establish a legitimate reason for not seeking the expert's opinion prior to the denial of his claim and in the instant case the claimant offered no reason why he did not solicit the information prior to the hearing before the administrative law judge. The most obvious explanation was, the court observed, that after the claimant lost his claim at the agency hearings based on his medical reports submitted at the administrative hearing, he then sought more favorable expert testimony and ruled that a claimant does not meet the good–cause requirement simply by obtaining a more favorable report from an expert witness once his claim is denied.

§ 63[c] Report or evaluation prepared after administrative hearing—Other orthopedic injuries—good cause found

The courts in the following cases, in which an applicant for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of orthopedic problems other than back problems in the form of physicians reports or evaluations prepared after the administrative hearing considered, held that good cause existed for failing to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Hyde v. Bowen, 823 F.2d 456, 18 Soc. Sec. Rep. Serv. 417, Unempl. Ins. Rep. (CCH) ¶17518 (11th Cir. 1987), held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)), existed for the failure of an applicant for Social Security benefits to introduce earlier in the proceedings a letter from the applicant's physician stating that, based upon his re–evaluation of the applicant, the applicant's allegations of significant pain in his hip and leg were consistent with the objective medical evidence—specifically, that the applicant's prosthetic device might be loose—because the report did not exist at the time of the administrative hearing.
In Johnson v. Apfel, 1998 WL 934649 (D.D.C. Dec 03, 1998), the court held that good cause existed for the claimant's failure to incorporate a report of an evaluation into the record of the prior proceeding. The evaluation was not in existence when the case was before the ALJ and the Appeals Council. The court stated that, in order to prevent claimants from eliciting evidence on remand that they could have secured before the administrative hearing but didn't, the good–cause requirement should be interpreted to mean that a remand should be denied when the need for the evidence, said to be "new," was so obvious that the failure of the claimant to secure it and produce it for the commissioner's evaluation cannot be justified and can only be described as being so foolhardy and reckless that it was a course of action without "good cause." The court found that this was not such an instance as the agency advised the claimant at the time of the hearing that what he had produced was sufficient.

§ 63[d] Report or evaluation prepared after administrative hearing——Not found

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of orthopedic problems other than back problems in the form of a physician's report or evaluation prepared after the administrative hearing considered, held that good cause did not exist for failing to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Gonzalez v. Chater, 1996 WL 442798 (S.D.N.Y. 1996), held that a person whose disability payments were terminated by an administrative law judge had not established good cause as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce into the administrative hearing treatment records dated after the administrative hearing where the doctor reported a medial meniscus tear of the left knee and severe quad atrophy of both knees where the applicant made no showing whatsoever that he could not have presented the evidence during the administrative proceedings. The court stated that the fact that the applicant had been represented by counsel throughout the proceedings made the failure to introduce the evidence earlier even less understandable and foreclosed the possibility that unfamiliarity with the process might have provided good cause for failing to incorporate the newly proffered evidence in the original proceedings. Simply to state baldly that the evidence was not available at the time the hearing was not, the court stated, sufficient to satisfy the "good cause" requirement since if it were, disability administrative proceedings would be an unending merry–go–round with no finality to administrative and judicial determinations.

§ 63[e] Report or evaluation prepared after administrative hearing—Psychiatric illnesses—good cause found

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of psychiatric disorders in the form of physicians reports or evaluations prepared after the administrative hearing considered, held that good cause existed for failing to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Morgan on Behalf of Morgan v. Chater, 913 F. Supp. 184, 50 Soc. Sec. Rep. Serv. 168, Unempl. Ins. Rep. (CCH) ¶15163B (W.D.N.Y. 1996), the court held that for purposes of applying the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure to introduce reports dated September 6 and 14, 1994 on the behavior of a child admitted to a psychiatric center when the hearing before the administrative law judge was held on April 7, 1994 and the Appeals Council denied the plaintiff's request for review on September 14, 1994 since the reports were not created until September 6 and 14, 1994 respectively, within days of—and, in the case of the latter report, the same day as—the Appeals Council's final denial of review.
In Borrero v. Callahan, 2 F. Supp. 2d 235, 57 Soc. Sec. Rep. Serv. 322 (D. Conn. 1998), the court held that good cause existed for the applicant's failure to submit a mental health evaluation and neuropsychological assessment, prepared after the conclusion of the administrative proceedings, at the time of the proceeding. The court explained that the claimant must adequately explain his failure to incorporate the proffered evidence into the administrative record in order to show good cause. The court held that because the reports did not exist at the time of the administrative proceedings, that the applicant had sufficiently demonstrated good cause for failing to present them earlier.
In Szubak v. Secretary of Health and Human Services, 745 F.2d 831, 7 Soc. Sec. Rep. Serv. 127, Unempl. Ins. Rep. (CCH) ¶15549 (3d Cir. 1984), the court found that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failure of a claimant seeking social security disability benefits on the basis of polyneuritis, severe anxiety syndrome, and great pain to submit 5 reports from physicians which postdated the administrative hearing. The court noted no evidence existed that the claimant refrained from submitting evidence in her possession, that the claimant was not represented by counsel until after the administrative law judge's decision and, given the state of the administrative record, especially the ambiguous nature of the government's expert witness on anxiety and the significance the administrative law judge placed upon it, the claimant permissibly obtained further material evidence bearing upon the issue of her disability. The court stated that under the particular facts of the case—substantial questions of disability raised by the reports of the commissioner's consultants—it believed that a remand presented little danger of encouraging claimants to seek after–acquired evidence and then to use such evidence as an unsanctioned "backdoor" means of appeal.
The court in Sears v. Bowen, 840 F.2d 394, 20 Soc. Sec. Rep. Serv. 552, Unempl. Ins. Rep. (CCH) ¶17904 (7th Cir. 1988), stated, in a case where a medical report indicated that a claimant whose claim was based originally upon glaucoma had many severe psychiatric problems, that the claimant had demonstrated good cause for purposes of applying the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since the report describing the psychiatric problems did not exist until after the Appeals Council had denied the applicant's claim. While the court acknowledged that some cases have placed weight on the fact that the claimant knew of his mental impairments prior to the administrative hearing, the claimant in the instant case did not see the psychiatrist in question until after the hearing before the administrative law judge and did not begin to see him on a weekly basis until February 1985, the psychiatrist treating the claimant was not an expert retained solely for the purpose of establishing the existence of a disability, and the claimant did mention his treatment by the psychiatrist in his statement to the Appeals Council. In short, the court stated that the case did not involve "sandbagging" by a claimant who lost and hopes to get another chance at obtaining benefits by bringing in new evidence in contrast to Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 18 Soc. Sec. Rep. Serv. 711, Unempl. Ins. Rep. (CCH) ¶17493 (1st Cir. 1987), where the court found inescapable the inference that applicant's counsel retained the medical expert to evaluate the case or Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 4 Soc. Sec. Rep. Serv. 129, Unempl. Ins. Rep. (CCH) ¶15163 (9th Cir. 1984), where the court concluded the obvious explanation for the failure to produce a medical report during the prior proceeding was that the claimant sought out new expert witnesses to support his disability claim after he was unsuccessful in the agency and district court hearings since the claimant in the instant case was uninformed in procedural matters and was represented by lay advocates, rather than legal counsel, whose endeavors obviously left much to be desired and this fact, together with the applicant's psychiatric history and problems, his visual impairments, and the fact that the Appeals Council had granted him an extension of time to file his appeal supported the court's conclusion that there was good cause for the applicant's failure to present the evidence below.
The court in Creighton v. Sullivan, 798 F. Supp. 1359, 38 Soc. Sec. Rep. Serv. 691, Unempl. Ins. Rep. (CCH) ¶17232A (N.D. Ind. 1992), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of an applicant for social security disability benefits who originally sought benefits based upon back problems and asthma to introduce evidence in the form of a psychiatric report. Noting that courts have placed weight on the fact that the claimants knew of their particular mental impairments before or during the pendency of the administrative hearing and have indicated that this prior knowledge militates against a finding of good cause, the court observed that the applicant did not begin seeing the doctors in question until after his administrative hearing and, based upon the medical evidence before the administrative law judge, the applicant and his treating physicians did not know he was afflicted with a psychological disorder. The court contrasted the instant case with Evangelista v. Secretary of Health and Human Services, 826 F.2d 136, 18 Soc. Sec. Rep. Serv. 711, Unempl. Ins. Rep. (CCH) ¶17493 (1st Cir. 1987), where the court found that the inference was inescapable that the applicant's counsel had retained medical experts to evaluate the case since in the instant case there was no concrete inference militating against the applicant's presentation of new evidence since the applicant based his disability claim upon a physical disability, namely back pain, the new evidence was psychological and the applicant produced the new evidence without delay unlike the 6–month period in Evangelista.
In Crozier v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶17810, 1987 WL 123935 (D. Kan. 1987), the court held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant who applied for social security disability benefits because of various physical ailments, to introduce a psychological evaluation of the applicant prepared more than a year after the administrative law judge had denied her claim since the evaluation occurred more than a year after the administrative law judge heard and decided the case.

§ 63[f] Report or evaluation prepared after administrative hearing——Not found

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of psychiatric disorders in the form of physicians reports or evaluations prepared after the administrative hearing held that good cause did not exist for failing to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, where—
—an applicant for social security disability benefits based on diabetes, back injury, and leg and neck pain sought to introduce a report on a psychiatrist's examination not performed until 7 months after the physician's recommendation and 5 months after the administrative hearing record was closed. Perry v. Shalala, Unempl. Ins. Rep. (CCH) ¶17536A, 1993 WL 541707 (D.N.H. 1993).
—where the applicant averred no reason whatsoever to justify her failure to present her doctor's statement to the ALJ, which, although not prepared until after the proceeding, was presumably the doctor's opinion at the time of the proceeding. Sepulveda v. Callahan, 2 F. Supp. 2d 212, 57 Soc. Sec. Rep. Serv. 335 (D.P.R. 1998).
—the applicant commenced treatment with her psychologist several months before the commissioner's decision became final yet did not submit the treatment reports from these sessions at the administrative proceedings and failed to justify the delay in submitting the reports. Schaal v. Apfel, 134 F.3d 496, 55 Soc. Sec. Rep. Serv. 128, 149 A.L.R. Fed. 679 (2d Cir. 1998).
—the applicant failed give a valid reason for failing to obtain prior to the administrative hearing medical records that she claimed supported a remand. Newman v. Secretary of Health and Human Services, 683 F. Supp. 174, 21 Soc. Sec. Rep. Serv. 481, Unempl. Ins. Rep. (CCH) ¶14046A (W.D. Mich. 1988).
—the applicant did not offer any explanation for not offering earlier an additional medical report and 3 affidavits from neighbors in Armenia. Markosyan v. Sullivan, 933 F.2d 1014 (9th Cir. 1991) (publication and use restricted).
The court in MacKinnon v. Bowen, Unempl. Ins. Rep. (CCH) ¶14639A, 1989 WL 270105 (D. Mass. 1989), held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) had not been established for the failure of an applicant for Social Security benefits based upon various physical ailments and depression due to gender dysphoria arising out of her condition as a transsexual to introduce earlier in the proceeding a report from a psychiatrist treating the applicant stating that she was a candidate for sex reassignment surgery, required treatment by medication, and that her depression continued to interfere markedly with her ability to work. The court stated that the applicant was required to provide some justification for not producing the evidence at the time of the hearing, but there was no justification in the record such as an allegation that she lacked representation or that it was difficult to find physicians who were skilled in treating gender dysphoria since it is not enough merely to change doctors and procure a new opinion. Otherwise, the court declared that every time a claimant changed physicians—who would invariably have different opinions—the case would be remanded and no final determinations would occur.
The court in Leggett v. Chater, 67 F.3d 558, 49 Soc. Sec. Rep. Serv. 118, Unempl. Ins. Rep. (CCH) ¶14848B (5th Cir. 1995), held that a man who initially filed a claim for social security disability benefits based upon a heart attack which claim was denied and then filed a claim based on mental impairments for a later period that was granted, had not established good cause for failing to introduce evidence of his mental impairments at the time of his first claim for benefits which he sought to have remanded to the Commissioner of Social Security pursuant to § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that the claimant did not provide a satisfactory explanation for the absence of evidence of mental impairments from the initial proceedings as the evidence consisted of a new examination far outside of the period for which the applicant's claim had been denied, but the claimant offered no evidence that his current mental disability did not subsequently develop after his initial application or that it was not the result of the deterioration of a condition that was not previously disabling.
comment The court stated that the appropriate action in the instant case was the option that the claimant had already chosen—use the evidence as the basis for a new disability application.
The court in Willis v. Secretary of Health and Human Services, 727 F.2d 551, 4 Soc. Sec. Rep. Serv. 146, Unempl. Ins. Rep. (CCH) ¶15131 (6th Cir. 1984), held a claimant for widow's disability benefits based upon difficulties with her vision, high blood pressure, gastritis, and arthritis was not entitled to a remand of her case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) based upon the report of a psychiatrist who examined the claimant several months after the claimant's application was denied by the administrative law judge and concluded, based upon the claimant's physical and mental condition, that she was totally and permanently disabled and unable to engage in any kind of gainful employment activity in any capacity as nothing in the record suggested any good cause for the failure to obtain the psychiatric testimony prior to the close of the proceedings before the administrative law judge. The court stated that legislative history of the 1980 amendment to § 205(g) clearly indicated that the amendment was designed to limit the ability of a reviewing federal court to remand cases to the Commissioner of Social Security as the Senate Report stated that: "under existing law the court itself, on its own motion or on motion of the claimant, has discretionary authority 'for good cause' to remand the case back to the administrative law judge. It would appear that although many of these court remands are justified, some remands are undertaken because the judge disagrees with the outcome of the case. The bill would continue the provision of present law which gives the court discretionary authority to remand cases to the [Commissioner], but adds the requirement that remand for the purpose of taking new evidence be limited to cases where there is a showing that there is new evidence which is material and that there was good cause for failure to incorporate it into the record in a prior proceeding."[FN14] The court observed that further support for the scope of the amendment to § 205(g) is found in the floor statements of Congressman Pickle, one of the floor managers of the bill who stated with respect to the amendment that "we have tried to speed up the judicial process so that these cases would not just go on and on and on. The court could [prior to the amendment] remand them back down to the administrative law judge without cause or other reason which was weakening the appeal process at that level … We also closed the record at the administrative law judge level."[FN15] The court distinguished Dorsey v. Heckler, 702 F.2d 597, 1 Soc. Sec. Rep. Serv. 299 (5th Cir. 1983), where the Fifth Circuit found, in the case of a claimant who the administrative law judge found had not proven her mental impairment at the administrative hearing, but during the Appeals Council review developed debilitating mental symptoms and was hospitalized, that good cause existed for the failure of the claimant to incorporate the new evidence into the administrative proceeding, since in the instant case the claimant offered absolutely no explanation why the medical evidence she sought to have considered on remand could not have been presented to the administrative law judge at the hearing, there was no contention that the onset of her impairment occurred after the hearing and the transcript of the hearing showed that the administrative law judge clearly indicated that counsel for the claimant did not seek to have the record remain open until such time as other evidence could be made a part of the record.
The court in Peachock v. Secretary of Health & Human Services, 831 F.2d 296 (6th Cir. 1987), held that the district court did not err in refusing to remand a case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) on the basis of a psychiatric report indicating that the claimant, whose claim was originally based on a back problem, was suffering from a major depressive reaction since the claimant had not shown good cause for the failure to submit the report earlier as the record showed that the claimant's impairments were causing anxiety in September 1985, yet the claimant was not tested until February 1986, 2 weeks after his second administrative hearing and then when the claimant received the report on February 18, 1986, he did not submit it to the Appeals Council, which did not render its decision until April 12, 1986. The court noted that Social Security regulations provide that the Appeals Council will consider the evidence introduced at the hearing as well as any new and material evidence submitted to it relating to the issues before it.
The court in Curry v. Secretary of Health & Human Services, 856 F.2d 193 (6th Cir. 1988), held that a claimant for social security disability benefits was not entitled to a remand pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) based upon a psychiatric evaluation performed after the administrative hearing since the claimant had not shown good cause for not having the evaluation made earlier. In the instant case, the court noted that at the administrative hearing the claimant's mother and the physician who testified concerning the claimant's physical problems referred on more than one occasion to the claimant's mental condition so the claimant could not contend that the onset of his psychological condition occurred after the hearing. In addition, the court noted the claimant did not seek to reopen the record in the administrative hearing so he could undergo psychological testing and obtain a report for the administrative law judge's consideration and had not offered any explanation for his failure to submit the evidence to the administrative law judge.
The court in Robinson v. Secretary of Health and Human Services, 932 F.2d 969 (6th Cir. 1991), held that the district court did not err in refusing to remand a disability claim case back to the Commissioner of Social Security pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where no psychiatric testimony was introduced at the original hearing and the claimant subsequently submitted a report from a physician indicating that the claimant suffered from major depression after the decision of the administrative law judge denying the claimant's request for benefits based upon anxiety, depression, and pain in her pelvis and back, stating that it need not determine whether the psychiatric evidence offered by the claimant indicating that she suffered from major depression was material because it found that the applicant failed to meet the good–cause requirement. The court noted that a party seeking to show good cause must go beyond showing that the evidence did not exist when the commissioner issued a final order since if the claimant had an opportunity to obtain the evidence in a timely fashion but neglected to do so, good cause will not be found. The court pointed out the claimant had failed to offer any explanation why she did not seek the opinion of a psychiatrist prior to her administrative hearing as she was represented by counsel who was aware that she had undergone psychiatric evaluations and testing in 1984, 1986, and 1987 and was also aware that her treating physician had recommended a psychiatric evaluation.
The court in Cline v. Commissioner of Social Sec., 96 F.3d 146, 51 Soc. Sec. Rep. Serv. 706, Unempl. Ins. Rep. (CCH) ¶15553B, 35 Fed. R. Serv. 3d (LCP) 1273, 152 A.L.R. Fed. 721 (6th Cir. 1996), held that an applicant for social security disability benefits was not entitled to remand under the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because of a psychiatric evaluation of the applicant made after the hearing before the administrative law judge who denied the applicant's request for total disability benefits based upon the fact that the applicant had undergone a colonostomy as a result of rectal cancer. The court stated that the claimant fell far short on the issue of "good cause" since the claimant's primary argument on "good cause" appeared to be that his legal representative was not sufficiently acquainted with him in order to determine his need for psychiatric evaluation since, according to his counsel, it was only at the hearing that the counsel was able to spend "a considerable amount of time" with the claimant and came to the conclusion that a psychological evaluation might be useful. The court stated further that the district court properly found this excuse to be unpersuasive, that counsel should have notified the administrative law judge of the claimant's need for a psychiatric examination as soon as he became aware of it at the hearing and that counsel had an entire month to notify the administrative law judge before the judge made his decision, but elected to wait and submit the new evidence to the Appeals Council for the first time. Even if it could excuse counsel's failure to acquaint himself with his client before the hearing, the court ruled that the claimant could not benefit from any failure to notify the administrative law judge at or following the hearing regarding the need to consider additional psychiatric evidence.
The court in Perkins v. Chater, 107 F.3d 1290, 52 Soc. Sec. Rep. Serv. 784, Unempl. Ins. Rep. (CCH) ¶15692B (7th Cir. 1997), stated that even if it were to take the generous view of both "new" and "material" that the Appeals Council adopted by considering a psychiatric evaluation of the claimant that technically was not in existence at the time of the earlier hearing, but was based upon evidence that had long been available, the claimant had not shown there was good cause under the sixth sentence of § 205(g). The court stated that the fact that the doctor devoted a part of his report to a critique of the administrative law judge's opinion, which obviously could not have been done before the opinion was issued, did not amount to good cause since such a decision would amount to automatic permission to supplement records with new evidence after the administrative law judge issues a decision in the case which would seriously undermine the regularity of the administrative process.
The court in Smith v. Shalala, 987 F.2d 1371, 40 Soc. Sec. Rep. Serv. 346, Unempl. Ins. Rep. (CCH) ¶17211A (8th Cir. 1993), held that good cause for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) had not been shown for the failure to introduce into the administrative proceeding reports from 2 psychiatrists based on examinations performed in April and July of 1992, a year after the Appeals Council denied review of the applicant's claim for disability benefits and 2 years after the administrative law judge's decision. While acknowledging that medical reports not existing at the time of the administrative hearing may constitute good cause to support a remand, the court found no good cause in the instant case as the claimant had the opportunity to consult additional psychiatrists before the administrative record was closed, but failed to do so. The applicant's claim was based primarily upon a back injury and the administrative law judge found the claimant had an impairment that limited his ability to perform work activities, but denied the claim because the court found the impairment was not equal to a listed impairment and the claimant's residual functional capacity allowed him to perform his past relevant work as a teacher's aide. The court noted that the administrative law judge had properly discounted the testimony of a psychiatrist who testified that the claimant suffered from several disabling mental impairments since the claimant did not allege a disabling mental impairment in his application for disability benefits, the claimant's treating physician was willing to state only that the claimant had occasional periods of anxiety and a psychiatric examination by another psychiatrist revealed no psychiatric disorders.
comment The court stated that it did not address what impact the reports might have upon a newly filed application for benefits.
The court in Sullins v. Shalala, 25 F.3d 601, 44 Soc. Sec. Rep. Serv. 487, Unempl. Ins. Rep. (CCH) ¶17798A (8th Cir. 1994), reh'g and suggestion for reh'g en banc denied, (June 23, 1994), held that a psychiatric report concerning a claimant for disability benefits who suffered from a number of disabling mental impairments, many of which apparently were the result of past abusive relationships with her first 2 husbands which made the claimant unable to maintain adequate attendance for a low stress job due to her preoccupation with pain and her numerous somatic complaints, her post–traumatic stress disorder, and her several phobias and panic disorder did not entitle the claimant to a further hearing before the Commissioner of Social Security pursuant to sentence six of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)) since while the report (based upon an examination a month after the administrative denial of the claim) was certainly material there was no good cause for the failure of the claimant to incorporate it in the record before the administrative law judge as she had full opportunity to develop the record as to any mental impairments before the administrative record was closed, but failed to do so.
The court in Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 4 Soc. Sec. Rep. Serv. 129, Unempl. Ins. Rep. (CCH) ¶15163 (9th Cir. 1984), held that a plumber with a bachelor's degree in fine arts who had filed claims for social security disability insurance benefits in 1979 alleging disability since 1971 due to arthritis, back and respiratory problems and at the hearing before the administrative law judge presented evidence of mental problems was not entitled to a remand of his case to the Commissioner of Social Security based upon the results of objective psychological tests and psychiatric evaluations since the claimant had not shown good cause as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). While the reports offered were not made until after the administrative hearing, the court noted that the claimant was aware of his mental problems at the time of the hearing and the only explanation the claimant offered for his failure to obtain the evidence earlier was that he was not represented by an attorney at the administrative hearing. However, the court commented that even if it accepted this argument, it did not explain the claimant's failure to introduce the evidence in the district court so the obvious explanation is that after the claimant was unsuccessful in the agency and district court hearings, he sought out new expert witnesses who might better support his disability claim. The "good cause" requirement would, the court stated, be meaningless if such circumstances were sufficient to allow introduction of new evidence. The court distinguished Ward v. Schweiker, 686 F.2d 762 (9th Cir. 1982), where the court held that good cause existed because the doctors had not discovered that the claimant had been suffering from myasthenia gravis until she was admitted to a hospital after the commissioner's decision so that the claimant could not have obtained the evidence at the time of her hearing. Since in the instant case the claimant knew of his mental problems and had prior psychiatric evaluations, the new reports merely contained new interpretations of the same mental problems discussed in the earlier evaluations and the claimant had not alleged that he could not have had the tests and evaluations done earlier.

§ 63[g] Report or evaluation prepared after administrative hearing—Neurological injuries—good cause found

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of neurological problems in the form of a physician's report or evaluations prepared after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Flanders v. Chater, Unempl. Ins. Rep. (CCH) ¶15040B, 1995 WL 608287 (S.D.N.Y. 1995), related reference, 1995 WL 672457 (S.D.N.Y. 1995), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure to produce at the administrative hearing reports of the claimant's treating neurologist and orthopedist prepared approximately a year after the administrative hearing since near the close of the administrative hearing the administrative law judge stated that he had to get some updated reports from her doctors to fill in the gaps left by insufficient medical reports at the hearing which indicated to the claimant that the administrative law judge would arrange to get updated reports but the judge did not do so and did not instruct the claimant, who suffered from convulsions and was not represented by counsel, that her case was unpersuasive and that she should obtain further medical evidence.
The court in Woodard v. Bowen, 1987 WL 8988 (N.D. Ill. 1987), related reference, 1990 WL 114324 (N.D. Ill. 1990), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of the claimant, an applicant for social security disability based on right knee sprain, hypertensive cardiovascular disease, hiatal hernia, and diverticulosis, to introduce earlier in the proceedings a psychological evaluation of the applicant showing the applicant as having low intelligence (IQ in bottom 3% of persons his age), symptoms of organic brain syndrome, positive tests for brain damage, and suffered from marked depression because the evidence at issue was "unavailable" at the time of the administrative proceedings since the psychological exam and report were not made until after those proceedings. Since the applicant did not complain of mental illness or brain damage, the court stated that counsel with no medical expertise could not be expected to diagnose the applicant as suffering from organic brain syndrome on the basis of the symptoms displayed by the plaintiff in 1982 and so the applicant's condition, based on the record, was not so obvious as to defeat the conclusion that the proffered evidence was unavailable and, thus, that good cause was shown.
In Milbrook v. Sullivan, 1993 WL 78723 (N.D. Ill. 1993), the court stated that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) for the failure of an applicant for social security disability benefits based on cerebral palsy to introduce earlier in the proceedings the results of psychological testing conducted after the administrative law judge, though finding the applicant severely impaired by cerebral palsy, denied the claim as the applicant had worked previously as a janitor, where the testing showed that the applicant had IQ of 69, mental retardation, organic mental disorder, and dysthymia.
comment The opinion does not state why good cause existed for the failure to introduce the testing results earlier in the proceedings.

§ 63[h] Report or evaluation prepared after administrative hearing——Not found

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of neurological problems in the form of a physician's report or evaluation prepared after the administrative hearing considered, held that good cause had not been established for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Key v. Heckler, 754 F.2d 1545, 8 Soc. Sec. Rep. Serv. 323, Unempl. Ins. Rep. (CCH) ¶15896 (9th Cir. 1985), held that an applicant for social security disability benefits based on a head injury which occurred 22 years earlier, a heart condition, a balance problem, and difficulty in walking had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce earlier in the proceeding a neurological examination performed after the decision of the administrative judge finding that the claimant suffered from post–right hemisphere trauma with mild–left hemiparesis. The court stated that the claimant offered no reason why he had not earlier solicited the report, which found that the claimant suffered from severe ataxia, lack of balance, and mild double vision or why he did not ask the district court to consider the evidence. The obvious explanation was, the court observed, that when the claimant did not succeed on his disability claim in the agency and district court hearings, he sought out a new expert witness who might better support his position and that the "good cause" requirement would be meaningless if such circumstances were sufficient to allow the introduction of new evidence.
In Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 16 Soc. Sec. Rep. Serv. 343, Unempl. Ins. Rep. (CCH) ¶17207 (9th Cir. 1987), the court held that an applicant for social security disability benefits and supplemental security income benefits based on a back condition had not shown for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) that good cause existed for the failure of the applicant to introduce 2 psychological evaluations showing that he might have an organic brain disorder, manifested by memory loss and speech problems, as he had not shown good cause for his failure to seek psychiatric evaluation earlier in the proceedings.

§ 63[i] Report or evaluation prepared after administrative hearing—Low mental functioning—good cause found

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence of low mental functioning in the form of a physicians report or evaluation prepared after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Cummings v. Bowen, 677 F. Supp. 975, 20 Soc. Sec. Rep. Serv. 628, Unempl. Ins. Rep. (CCH) ¶14627A (N.D. Ill. 1988), related reference, 950 F.2d 492, 35 Soc. Sec. Rep. Serv. 612, Unempl. Ins. Rep. (CCH) ¶16427A (7th Cir. 1991), remanded pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) a claim for disability benefits brought by a woman who originally claimed disability due to physical injuries arising out of an automobile accident where the Appeals Council refused to consider a report by a registered clinical psychologist indicating that she had low intelligence, marginal literacy, and several emotional or psychological problems and an evaluation by a vocational specialist concluding there were few if any jobs in the national economy she could perform. The court stated that while the applicant may not have good cause for waiting to raise the issue of her mental disabilities until requesting review by the Appeals Council, there was no good–cause requirement for presenting new evidence at that level so that § 205(g) did not bar the commissioner from considering the evidence of mental disabilities.
comment In Cummings v. Sullivan, 950 F.2d 492, 35 Soc. Sec. Rep. Serv. 612, Unempl. Ins. Rep. (CCH) ¶16427A (7th Cir. 1991), an action by the applicant in the Cummings case to recover attorneys' fees under the Equal Access to Justice Act, the Seventh Circuit held that the government's position that § 205(g) barred remand of the applicant's claim to consider the evidence of the applicant's mental disabilities was substantially justified.
The court in Roe v. Shalala, 1995 WL 27530 (N.D. Cal. 1995), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of a claimant who sought Social Security supplemental security income benefits due to hypertension, asthma, hypothyroidism, and partial right–eye blindness to introduce before the administrative law judge a neuropsychological evaluation concluding that the applicant was "disabled from working due to mental slowness, difficulty processing information of any complexity whatsoever, lack of ability to sustain attention over time, and memory problems." While the court acknowledged that a claimant does not meet the good–cause requirement simply by obtaining a more favorable report from an expert witness once his claim is denied, the court found, contrary to the commissioner's contention, that no evidence existed showing that the claimant had acted in bad faith by not seeking a neuropsychological examination at an earlier time distinguishing the instant case from Allen v. Secretary of Health and Human Services, 726 F.2d 1470, 4 Soc. Sec. Rep. Serv. 129, Unempl. Ins. Rep. (CCH) ¶15163 (9th Cir. 1984), where the court held that the claimant's awareness of, and presentation of, evidence regarding his mental problems at the administrative proceeding precluded a finding of good cause for his failure to incorporate 2 postdecision psychiatric evaluations into the administrative record, as no evidence existed that the claimant or the claimant's treating physician knew, or even suspected, during the administrative proceeding that the claimant was mentally impaired. The court noted that the claimant was not represented by counsel at the administrative proceedings and had based her application for supplemental security income benefits solely on her physical ailments. Given the neuropsychiatrist's evaluation of her mental functioning, the claimant could not, the court stated, have been expected to self–diagnose her mental impairment and seek out a psychological evaluation and no evidence existed that the failure of the claimant's physician to refer the claimant earlier for a neuropsychological examination was in bad faith.
The court in Wilson v. Sullivan, 1989 WL 134925 (D. Kan. 1989), held that good cause existed for purposes of the sixth sentence of $205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) and for the failure of an applicant for social security disability benefits based on arthritis, obesity, reduced vision, and diabetes mellitus to introduce earlier in the proceedings a diagnosis of the applicant as having chronic depression controllable with medication, a low–level of intelligence, and a personality disorder characterized by pathological dependence and, because of the latter two, was a person who functioned at an extremely low level, was extremely limited in her ability to carry out daily activities, to maintain social functioning, and to concentrate on her tasks in the workplace since the diagnosis did not exist at the time of the hearing as it was not made until 3 months after the administrative hearing.
The court in Williams v. Sullivan, 1989 WL 151920 (D. Kan. 1989), amendment denied, 1990 WL 26029 (D. Kan. 1990), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of an applicant for social security disability benefits based on hip and lower back pain to introduce earlier reports by a licensed psychologist and a board–certified vocational expert that the applicant, who had been a foreign–car mechanic and whose entire left hip was replaced, was functionally illiterate and could not obtain employment, which required the writing of simple sentences or performing simple mathematical equations, since it was prepared after the decision of the administrative law judge denying the applicant's claim for benefits.

CUMULATIVE SUPPLEMENT

Cases:

Denial of social security disability benefits to claimant who allegedly suffered from mental impairment, as result of inadequate development of claimant's medical record and not according proper weight to findings of her treating psychiatrist who opined that claimant had limited to fair ability to understand instructions in work setting, constituted error that required remand to Commissioner of Social Security for additional proceedings for assessment of claimant's ability to perform basic requirements of work in light of mental impairment based on updated treatment records. Social Security Act, § 1614(a)(3)(A, B), as amended, 42 U.S.C.A. § 1382c(a)(3)(A, B); 20 C.F.R. §§ 404.1520, 416.912(d), 416.920a, 416.945. Pabon v. Barnhart, 273 F. Supp. 2d 506 (S.D. N.Y. 2003).

[Top of Section]


[END OF SUPPLEMENT]


§ 63[j] Report or evaluation prepared after administrative hearing——Not found

The courts in the following cases, in which applicants for social security disability or supplemental security income benefits sought remand to the Commissioner of Social Security in order to have evidence consisting of evidence of low mental functioning in the form of a physician's report or evaluation prepared after the administrative hearing considered, held that good cause did not exist for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Pierre v. Sullivan, 884 F.2d 799, 27 Soc. Sec. Rep. Serv. 12, Unempl. Ins. Rep. (CCH) ¶14964A (5th Cir. 1989) (criticized on other grounds by Latham v Shalala (CA5 Tex) 36 F3d 482, 45 Soc Sec Rep Serv 618, CCH Unemployment Ins Rep ¶14170B), held that an applicant for social security disability benefits who originally sought benefits on the basis of hypertension, arthritis, diabetes, and "nerves" (meaning that she frequently cried and sometimes heard unintelligible voices speaking to her) had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce earlier evidence of her low intelligence as reflected in an IQ of 57. While the applicant argued that good cause existed because the IQ test was not performed until after the administrative law judge had entered his decision, the court stated that the fact that a recent medical report is not enough to meet the good–cause requirement. The court distinguished the case that of Dorsey v. Heckler, 702 F.2d 597 (5th Cir. 1983), where the attorney for the claimant failed to discover that the claimant had severe mental disabilities until she was admitted to a hospital after the commissioner's decision. The court noted that while in Dorsey it had held the delay in submitting evidence of the claimant's hospitalization and mental condition excusable because the new evidence surfaced during the administrative process but was not submitted because the Appeals Council handed down its decision 2 days before the claimant was released from the hospital and thus was similar to cases where a de minimis procedural default by a claimant in presenting new medical evidence during the administrative process constitutes good cause. Furthermore, the claimant's breakdown and hospitalization were the kind of evidence that could not have been obtained earlier, the IQ test at issue in the instant case could have been administered at any time and the applicant had not offered good cause why the test was not performed earlier.
The court in Oliver v. Secretary of Health and Human Services, 804 F.2d 964, 15 Soc. Sec. Rep. Serv. 330, Unempl. Ins. Rep. (CCH) ¶17145 (6th Cir. 1986), held that a claimant for Social Security benefits based upon general weakness, pain, and forgetfulness following an episode of malignant hyperthermia during surgery was not entitled to a remand of her case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) as the claimant had not satisfied the good–cause requirement though the additional medical reports were prepared after the commissioner's final decision and, therefore, could not have been presented at the hearing. While the dates on the reports alone seemingly satisfied the good–cause test in Ward v. Schweiker, 686 F.2d 762 (9th Cir. 1982), the court stated that the Sixth Circuit had taken a harder line on good cause by requiring that the complainant give a valid reason for his failure to obtain evidence prior to the administrative hearing and in the instant case the claimant did not have a valid reason for his failure to obtain a right quadriceps biopsy, a neuropsychological examination or a university neurologist evaluation prior to the hearing.
The court in McKernan v. Secretary of Health and Human Services, 12 F.3d 213 (6th Cir. 1993), held that an applicant for social security disability benefits whose original claim was based upon a back problem had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for not introducing before the administrative law judge evidence of his alleged mental impairment presented to the Appeals Council.
In Webb v. Shalala, 1993 WL 460843 (N.D. Ill. 1993), related reference, 1994 WL 11652 (N.D. Ill. 1994), the court held that an applicant for social security disability benefits based on a number of physical ailments had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce a psychological evaluation of the applicant performed after the Appeals Council had denied the applicant's request for review of the administrative denial of his claim and which showed that the applicant suffered from severe mental impairment and had an IQ of 70. While the applicant argued that his poor reading ability and low IQ were good cause for failing to raise the psychological evidence before the Appeals Council and noted that in Sears v. Bowen, 840 F.2d 394, 20 Soc. Sec. Rep. Serv. 552, Unempl. Ins. Rep. (CCH) ¶17904 (7th Cir. 1988), the Seventh Circuit found that these factors were sufficient to establish good cause for not raising evidence of psychological disabilities before the Appeals Council, the court noted that the Seventh Circuit in Sears had observed that the new evidence was from a psychiatrist treating the claimant and was not from a medical expert retained for the purpose of "sandbagging" by a claimant who lost, in order to get another chance at obtaining benefits by bringing in new evidence. While in the instant case, the attorneys for the applicant were hired immediately after the Appeals Council declined to review the applicant's case and the psychologist was not treating the applicant for a mental impairment. The court observed that none of the doctors who treated the applicant for his physical problems ever suggested that he suffered from mental disabilities and concluded that the sequence of events suggested sandbagging.
The court in Mitchell v. Shalala, 48 F.3d 1039, 47 Soc. Sec. Rep. Serv. 48, Unempl. Ins. Rep. (CCH) ¶14397B, 31 Fed. R. Serv. 3d (LCP) 419 (8th Cir. 1995), declined to order the district court to remand the case of a worker seeking social security disability benefits for further hearing pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where the worker stated at his hearing that he could read, but upon appeal from the denial of his claim presented a report indicating that he was not literate and read at a second grade level. The court observed that courts can order additional hearings before the commissioner only upon a showing that new, material evidence exists as does is good cause for the failure to incorporate such evidence in the record in a prior proceeding and at the hearing the administrative law judge asked the worker if he could read, the worker said he could and led the judge to believe that there was no need for further inquiry and the worker offered no explanation for failing to inform the administrative law judge that he could not read.
In Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 16 Soc. Sec. Rep. Serv. 343, Unempl. Ins. Rep. (CCH) ¶17207 (9th Cir. 1987), the court, in holding that an applicant for social security disability benefits and supplemental security income benefits based on a back condition had not shown good cause for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), noted that an represented the claimant at the administrative hearing, the attorney was aware of the applicant's memory loss at the time of the hearing, but the reports in question were not prepared until after the commissioner rendered a final determination and no explanation was offered for his failure to request a mental evaluation or to press his mental impairment claim at or before the hearing.
The court in Nshanyan v. Shalala, 70 F.3d 1279 (9th Cir. 1995) (publication and use restricted), held that an applicant for supplemental social security disability benefits based on the fact that he had difficulty breathing, suffered right–side weakness, pain in his knees, legs, left thumb, and back, chest pains, spasms, and shaking had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce earlier a psychological report prepared by a doctor in July 1993, alleging that the applicant suffered from a significant mental impairment and a disability follow–up report prepared by a doctor dated November 20, 1993 both of which were prepared after the administrative law judge's decision dated March 10, 1993. The court stated that good cause is lacking if the evidence could have been solicited at the administrative level and that the district court correctly found that the applicant failed to show why the evidence could not have been developed and submitted earlier and declined to remand on such ground.

§ 63[k] Report or evaluation prepared after administrative hearing—Heart disease—good cause found

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of heart disease in the form of physician's reports or evaluations prepared after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Travis v. Sullivan, 985 F.2d 919, 40 Soc. Sec. Rep. Serv. 106, Unempl. Ins. Rep. (CCH) ¶17257A (7th Cir. 1993), held for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) that good cause existed for the failure of the claimant for social security disability benefits based on heart disease to introduce medical reports of heart disease that did not exist at the time of the administrative proceeding.
The court in Jackson v. Sullivan, 1991 WL 12992 (D. Kan. 1991), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of an applicant for social security disability benefits, who was terminated from her employment due to her inability to perform her duties as a cleaner, to introduce earlier in the proceedings a letter from her treating physician dated after the Appeals Council had denied the claim diagnosing the applicant as having "prinzmetal angina" and an opinion that the applicant was not able to do even minimal sedentary work because of her unstable angina.

§ 63[l] Report or evaluation prepared after administrative hearing——Not found

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of heart disease in the form of physician's reports or evaluations prepared after the administrative hearing considered, held that good cause had not been established for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Alexander v. Secretary of Health & Human Services, 856 F.2d 192 (6th Cir. 1988) (publication and use restricted) held that an applicant for social security disability benefits had not established for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause for failing to introduce before the district court additional medical evidence consisting of reports from a hospitalization after the administrative hearing date and a letter from a doctor stating the applicant was not to continue his normal occupation and should be put on disability due to his severe cardiac disease since while the applicant argued he could not have produced the 1987 reports during the administrative hearing taking place in 1986 he did not offer any explanation why the material could not have presented to the district court.

§ 63[m] Report or evaluation prepared after administrative hearing—Chronic fatigue syndrome

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of chronic fatigue syndrome in the form of physicians reports or evaluations prepared after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Fragale v. Chater, 916 F. Supp. 249, 50 Soc. Sec. Rep. Serv. 344, Unempl. Ins. Rep. (CCH) ¶15234B (W.D.N.Y. 1996), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure to introduce a letter from the physician of a claimant for social security disability benefits based upon chronic fatigue syndrome dated January 16, 1996 stating that the physician had been treating the claimant for her chronic fatigue syndrome and that she had been disabled since August, 1989 where the administrative hearing on the claimant's application was held on August 18, 1993.
comment It is not clear from the opinion why the court reached the conclusion that good cause had been shown for failure to introduce the letter at the administrative hearing.
The court in Schaffer v. Apfel, 992 F. Supp. 233, 55 Soc. Sec. Rep. Serv. 985 (W.D.N.Y. 1997), held that good cause existed for not presenting evidence, consisting of a neurologist's report and a psychiatrist's opinion prepared after the administrative hearing, at the time of the hearing. The report and opinion were the first mention of the possibility that the claimant suffered from chronic fatigue syndrome. The court held that given the lack of clinically accepted methodology for the diagnosis of CFS, and that the diagnosis could be made only after alternative medical and psychiatric causes of chronic fatiguing illness had been excluded, the claimant demonstrated good cause for failing to present the evidence earlier.

§ 63[n] Report or evaluation prepared after administrative hearing—Alcoholism—good cause found

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of alcoholism in the form of a physician's report or evaluation prepared after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. $5(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Burton v. Heckler, 724 F.2d 1415, 3 Soc. Sec. Rep. Serv. 383 (9th Cir. 1984), held that a claimant challenging the termination of his disability insurance benefits was entitled to a remand of his case to the Commissioner of Social Security pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) based upon a psychiatric evaluation dated October 27, 1980, concluding that the deterioration of the claimant's mental capacity was due to long–term alcohol abuse as good cause existed for the failure to submit the report to the administrative law judge since the report did not exist at that time. The court stated that the good–cause requirement is liberally applied, where, as in the instant case, there was no indication that a remand for consideration of new evidence would result in prejudice to the commissioner.

§ 63[o] Report or evaluation prepared after administrative hearing——Not found

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of alcoholism in the form of a physician's report or evaluation prepared after the administrative hearing considered, held that good cause did not exist for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. $5(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Clem v. Sullivan, 894 F.2d 328, 28 Soc. Sec. Rep. Serv. 304, Unempl. Ins. Rep. (CCH) ¶15217A (9th Cir. 1990), the court held that the district court did not abuse its discretion in refusing to remand to the district court pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) a claim for social security disability benefits on the basis of new evidence, stating that while the claimant submitted new evidence consisting of additional medical reports, a textbook excerpt, a disability determination and 2 psychological evaluations, the claimant did not show good cause for not submitting the evidence earlier since his assertion that the evidence only turned up later, during another proceeding, was not sufficient to explain why it was not produced earlier in the proceedings. The good cause requirement would, the court stated, be meaningless if such circumstances were sufficient to allow the introduction of new evidence.

§ 63[p] Report or evaluation prepared after administrative hearing—Sarcoidosis of lung

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of sarcoidosis of the lung in the form of a physician's report prepared after the administrative hearing considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Williams v. Bowen, Unempl. Ins. Rep. (CCH) ¶14470A, 1989 WL 1307 (S.D.N.Y. 1989), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for Social Security benefits based on sarcoidosis of the lung—a multi–system granulomatous disorder of unknown etiology, characterized by epitheloid tubercles involving various organs or tissues—to introduce earlier in the proceedings a report prepared after the decision of the administrative law judge stating that the applicant's impairments equaled the criteria of impairments in the "Listing of Impairments" in Appendix 1 of Part 404, Subpart P of the Regulations, that would categorize plaintiff as disabled under the Social Security Act since the report did not exist at the time of the administrative hearing.

§ 63[q] Report or evaluation prepared after administrative hearing—Fibromyalgia

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence in the form of physician's report diagnosing the applicant as having fibromyalgia considered, stated that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Lisa v. Secretary of Dept. of Health and Human Services of U.S., 940 F.2d 40, 34 Soc. Sec. Rep. Serv. 303, Unempl. Ins. Rep. (CCH) ¶16241A (2d Cir. 1991), stated that good cause existed to support the remand of the case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where the claimant was diagnosed as having fibromyalgia, and the claimant could not have obtained the evidence during the pendency of the administrative proceeding. The court observed that no objective test existed that could conclusively confirm the disease; rather diagnosis is by exclusion and testing of certain "focal tender points" on the body for acute tenderness which is characteristic in patients with the illness and that the commissioner did not contest that good cause existed for the failure to present the diagnosis to the administrative law judge.

§ 63[r] Report or evaluation prepared after administrative hearing—Epstein–Barre disease

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence in the form of physician's report or evaluation prepared after the administrative hearing diagnosing the applicant as having Epstein–Barre disease considered, held that good cause existed for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Meyers v. Department of Health & Human Services, 977 F.2d 590 (9th Cir. 1992), the court held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of an applicant for social security disability benefits based on constant severe headaches, back pain, postmenopausal symptoms, intermittent high blood pressure, and generalized pain and muscle spasms to introduce a tentative diagnosis based on an examination 13 months after the decision of the administrative law judge denying the applicant's claim that the applicant had chronic Epstein–Barre disease since the new evidence could not have been presented at the prior proceeding as the disease in question was little known and comparatively recently identified affliction so the applicant might not have been able to obtain a diagnosis at an earlier date.

§ 63[s] Report or evaluation prepared after administrative hearing—Arthritis—good cause found

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of arthritis in the form of a physician's report prepared after the administrative hearing considered, held that good cause had been established for failing to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In the case of an applicant for social security disability benefits based upon degenerative arthritis of cervical and lumbosacral spine, peptic ulcer disease, mitral valve prolapse with arrhythmia, chronic sinusitis, and cataracts, the court in Baran v. Bowen, 710 F. Supp. 53, 25 Soc. Sec. Rep. Serv. 508, Unempl. Ins. Rep. (CCH) ¶14934A (S.D.N.Y. 1989), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of the applicant to introduce earlier in the proceedings reports prepared 2 years after the date of the administrative law judge's decision indicating that the applicant was not able to stand and move about for long, that she could not sit for more than 4 hours a day and only 30 minutes continuously, that she could not walk or stand for more than 5 minutes continuously and X–rays indicating the persistence of the degenerative disease as the reports were written after the administrative hearing took place.

§ 63[t] Report or evaluation prepared after administrative hearing——Not found

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of arthritis in the form of a physician's report prepared after the administrative hearing considered, held that good cause did not exist for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Shaver v. Secretary of Health and Human Services, 878 F.2d 382 (6th Cir. 1989) (publication and use restricted), the court held in the case of a man who applied for social security disability benefits because of chronic rheumatoid arthritis that the applicant had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for not introducing earlier in the proceeding a two–paragraph letter from a doctor stating the claimant was under the doctor's care, had persistent pain in both wrists, and had difficulty walking and, in the doctor's opinion, was not able to sustain any type of gainful employment as the applicant had not even attempted to explain why he did not request the doctor to write such a letter earlier so that it could have been included in the administrative record.

§ 63[u] Report or evaluation prepared after administrative hearing—Carpal tunnel syndrome

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence of carpal tunnel syndrome in the form of a physician's report prepared after the administrative hearing considered, held that good cause did not exist for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Wyatt v. Secretary of Health and Human Services, 12 F.3d 216 (6th Cir. 1993) (unpublished disposition), stated that sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) obviously applies to evidence submitted for the first time in federal district court and that it could not find good cause for the failure of the claimant to submit to the administrative law judge information in a medical report dated December 1990, stating that she had moderately severe carpal tunnel syndrome restricting her from using power tools, heavy lifting, and activities that involve continual flexing of her wrists since the report was issued pursuant to an examination in February 1989, and the claimant did not attempt to show good cause. The court stated that since the Appeals Council declined review, the § 205(g) standard applied to all evidence submitted after the decision of the administrative law judge and the report was "new evidence" for purposes of applying § 205(g).
comment However, since the need to demonstrate good cause may not previously have been clear to the claimant, the court considered the report along with other evidence before the administrative law judge and found it did nothing to affect its conclusion that the district court's decision upholding the denial of benefits by the administrative law judge was correct since at the hearing the claimant and her attorney introduced an earlier report of carpal tunnel syndrome by the doctor who wrote the report in question and discussed the diagnosis before the administrative law judge and the report in question contained much the same data as the earlier one except for the statement that the claimant could not use power tools, engage in heavy lifting, or perform activities that demand continual flexing of her wrists and the record indicated that the administrative law judge presumed these sorts of activities to be proscribed.
In Parker v. Apfel, 998 F. Supp. 1070, 56 Soc. Sec. Rep. Serv. 513 (E.D. Mo. 1998), the plaintiff filed a motion to reopen the records to include new medical records created some 17 months after the ALJ's decision. The new evidence concerned her treatment for carpal tunnel syndrome and other various ailments. The court stated that the fact that medical records do not exist at the time of the administrative hearing may constitute good cause under 42 U.S.C.A. § 405(g). However, if the medical records were not closely enough related in time either to the administrative law judge's decision or to the Appeals Council's review, then remanding the case for further evaluation is not warranted. Furthermore, the court acknowledged that if such medical records do not relate to a claimant's condition as it existed when the administrative law judge made his decision, they are not material. The court, denying the plaintiff's motion to reopen the records, found that none of the medical records that the plaintiff sought to submit specifically related to the plaintiff's condition at the time of the administrative law judge's decision and that the most recent of those records related to the plaintiff's condition 17 months after the administrative law judge's decision.

§ 63[v] Report or evaluation prepared after administrative hearing—Unspecified medical evidence—good cause found

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security in order to have unspecified medical evidence in the form of a physician's report or evaluation prepared after administrative hearing considered, found good cause for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Byars v. Secretary of Health and Human Services, 944 F.2d 904 (6th Cir. 1991), the court held that good cause existed for purposes of applying the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where a medical report was prepared after the administrative law judge had denied a disability claim based on acute emphysema and angina. The court stated that the district court had acted properly in remanding the case to the administrative law judge for consideration of additional medical evidence that was not available at the time the administrative law judge made his determination.
The court in Holley v. Chater, 931 F. Supp. 840, 51 Soc. Sec. Rep. Serv. 406, Unempl. Ins. Rep. (CCH) ¶15616B (S.D. Fla. 1996), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure of an applicant for social security disability benefits based on severe, chronic obstructive pulmonary disease, asbestosis, emphysema, blockage of the left anterior descending artery, pneumonitis, bronchitis, shortness of breath, low back and leg pain, chest pain, pain in his knees and hands, insomnia, and fatigue for not having introduced additional evidence of coronary heart blockage in an earlier proceeding because it did not exist or was unavailable earlier.

§ 63[w] Report or evaluation prepared after administrative hearing——Not found

[Cumulative Supplement]

The courts in the following cases, in which applicants for social security disability benefits sought remand to the Commissioner of Social Security in order to have unspecified medical evidence in the form of a physician's report or evaluation prepared after the administrative hearing considered, held that good cause did not exist for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Rich v. Apfel, 57 Soc. Sec. Rep. Serv. 359, 1998 WL 458056 (S.D.N.Y. 1998), held that good cause did not exist for the applicant's failure to submit reports prepared after the administrative hearing, containing various medical evidence. The applicant argued that "good cause" was demonstrated by the fact that he had an eleventh grade education, that a legal assistant from Harlem Legal Services represented him at the administrative hearing, and that he relied on the ALJ to obtain the relevant records. The court rejected these arguments. stating that "good cause" exists where the evidence surfaces after the [commissioner's] final decision and the claimant could not have obtained the evidence during the pendency of that proceeding.
The court in Birchfield v. Harris, 506 F. Supp. 251 (E.D. Tenn. 1980), held that while the letter of a physician that the applicant sought to add to the record did not exist until it was typed, the applicant offered no reason why it took so long for the applicant to obtain the letter and no claim could be made that the applicant had used reasonable diligence in obtaining the letter so good cause had not been established for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). In addition, the court noted that although the Appeals Council rendered its decision a few days before the applicant was examined by the physician an orderly procedure existed where he could have sought to have the "new" evidence considered by the commissioner.
The court in Campbell v. Shalala, 988 F.2d 741, 40 Soc. Sec. Rep. Serv. 366, Unempl. Ins. Rep. (CCH) ¶17270A (7th Cir. 1993), agreed with the district court that additional evidence consisting of 3 letters—two from doctors who had treated the claimant's physical disorders on numerous occasions and one from a social worker addressing the claimant's treatment for psychological problems—should have been obtained by the claimant when the case was still subject to administrative review so remand to the Commissioner of Social Security was not appropriate under the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The claimant had sought disability benefits for hyperthyroidism, a spinal injury, neuropathy, and a nervous disorder.
In McNally v. Secretary of Health and Human Services, 935 F.2d 274 (9th Cir. 1991) (publication and use restricted), the court held that an applicant for social security disability benefits based on an injury to his left hip and pelvis in an automobile accident in 1973 and an injury to his back in 1979 while working as a busdriver had not established good cause as required in order to obtain a remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for failing to introduce assessments of his mental and physical condition at September 30, 1984, the last date where the applicant was eligible for disability benefits, and a declaration by the applicant concerning his condition at such time

CUMULATIVE SUPPLEMENT

Cases:

Treating doctors' letters submitted by claimant for first time in action challenging denial of social security disability benefits did not support remand for consideration of additional evidence; first letter did not satisfy statutory criteria, and second letter was not material and no good cause was shown for claimant's failure to present information therein during administrative proceedings. Social Security Act, § 205(g), as amended, 42 U.S.C.A. § 405(g). Moscatiello v. Apfel, 129 F. Supp. 2d 481 (E.D.N.Y. 2001).

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B. Nonmedical Evidence

1. Newness of Evidence

§ 64. Subsequent determination of disability by another agency

[Cumulative Supplement]

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have a determination of another agency that the applicant was entitled to disability benefits considered, held that such evidence was new for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Latham v. Shalala, 36 F.3d 482, 45 Soc. Sec. Rep. Serv. 618, Unempl. Ins. Rep. (CCH) ¶14170B (5th Cir. 1994), held that a claimant for social security disability benefits was entitled to a further hearing before the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) when after the denial of benefits by the administrative law judge the Veterans Administration rated the claimant as disabled for purposes of his application for Veterans Affairs disability benefits observing that the Veterans Administration rating was certainly new since it was not issued until after the commissioner's determination.

CUMULATIVE SUPPLEMENT

Cases:

Evidence that the Department of Veterans Affairs (VA) granted claimant's application for veteran's benefits based on disability was not material, and therefore did not warrant remand of claim for social security disability benefits; evidence was not relevant to claimant's condition during time period for which social security disability benefits were denied, nor probative, and there was no reasonable possibility that the evidence would have caused claimant's application to be decided differently. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Bradley v. Barnhart, 87 Fed. Appx. 190 (2d Cir. 2003).
Disability determination in claimant's second application for social security disability benefits case might constitute new and material evidence with regard to her first, denied, application, warranting remand for further consideration, where the onset date for the disability found in her second application was determined to be the day following the date of the prior no-disability finding. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Hayes v. Astrue, 488 F. Supp. 2d 560 (W.D. Va. 2007).

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§ 65. Evidence of intent to leave wife

The court in the following case, in which an applicant for Social Security survivor's benefits sought remand to the Commissioner of Social Security in order to develop testimony that a man who died after leaving his house after an argument with his second wife intended to leave her held that the applicant had not demonstrated that there was new evidence for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Brickey on Behalf of Perez v. Bowen, 722 F. Supp. 318, 27 Soc. Sec. Rep. Serv. 430, Unempl. Ins. Rep. (CCH) ¶15277A (S.D. Tex. 1989), held that a former wife of a man who remarried and died after leaving his house after an argument with his second wife was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) when her lawyer requested a rehearing to develop additional testimony indicating that the man had intended to leave his second wife because counsel had not shown that there was new evidence, but rather that he had failed to develop the existing evidence.

§ 65.5. Other evidence

[Cumulative Supplement]

The following authority adjudicated whether other nonmedical evidence constituted "new evidence" for the purposes of 42 U.S.C.A. § 405(g).

CUMULATIVE SUPPLEMENT

Cases:

ALJ was not required to provide counsel for applicant for Social Security disability insurance benefits with copy of applicant's file, and thus, ALJ's failure to provide copy of file to counsel did not constitute good cause for remand of case to Commissioner of Social Security for consideration of evidence of applicant's mental impairment that was not presented to either ALJ or Appeals Council. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Spence v. Barnhart, 159 Fed. Appx. 593 (5th Cir. 2005).
Undated photographs of applicant for supplemental security income (SSI), submitted to administrative law judge (ALJ) after close of hearing on application for purpose of demonstrating extent and effect of applicant's obesity, were not new and material, and ALJ's refusal to consider them did not warrant judicial remand of her application, where ALJ had already observed applicant throughout her hearing and specifically found that her obesity constituted severe medical impairment. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Hensley v. Commissioner of Social Sec., 214 Fed. Appx. 547, 2007 FED App. 0056N (6th Cir. 2007).
Social Security disability benefits claimant's employment records submitted on appeal from Commissioner's affirmance of denial of claim were not "new" and thus did not warrant remand to Commissioner under Social Security Act's judicial review provision, where records had existed and had been available to claimant at time of ALJ's hearing, and claimant offered no reason for not submitting them in administrative proceeding, even though he was given opportunity to submit them both before and after hearing. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Schmidt v. Barnhart, 395 F.3d 737 (7th Cir. 2005).
Remand for consideration of additional evidence was not warranted in social security retirement benefits case; information in Forms W–2 that claimant provided to the district court was already included in the agency's record of his earnings, and any incorrect crediting of wages from employers other than those mentioned to the ALJ or district court concerned past employment and could not be characterized as "new". Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Taylor v. Barnhart, 150 Fed. Appx. 558 (7th Cir. 2005).
Computerized extracts of Social Security disability benefits claimant's earnings, along with pay stubs available from beginning of administrative proceedings, did not constitute "new evidence," of kind for which district court was authorized to remand benefits case back to administrative agency pursuant to "sentence six" of the Social Security Act. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Krishnan v. Barnhart, 328 F.3d 685 (D.C. Cir. 2003).

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§ 66. Evidence of validity of prior marriage

In the following case the court held that an applicant for Social Security survivor's benefits who claimed that she was entitled to such benefits because her marriage to the person through whom she claimed the benefits had never been dissolved was not entitled to a remand of her case to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) because she had not shown new evidence existed to be considered.
The court in Zayas v. Sullivan, 974 F.2d 1344 (9th Cir. 1992), held that a woman who claimed that she was entitled to Social Security benefits because her marriage had never been legally dissolved was not entitled to a remand of her case to the Commissioner of Social Security in order to allow her to conduct additional searches in her attempt to overcome the validity of the last marriage of the man she claimed was her husband pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 205(g)) because she had not shown that there was new evidence which was not considered by the commissioner to justify a remand.

2. Materiality of Nonmedical Evidence

§ 67[a] Disability determination by another agency—Held material

The courts in the following cases, in which applicants or social security disability benefits sought remand to the Commissioner of Social Security in order to have a determination of another agency that the applicant was entitled to disability benefits considered, held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence to be taken before the Commissioner of Social Security upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Latham v. Shalala, 36 F.3d 482, 45 Soc. Sec. Rep. Serv. 618, Unempl. Ins. Rep. (CCH) ¶14170B (5th Cir. 1994), held that where the Veterans Administration determined that a claimant for social security disability benefits whose claims for benefits had been denied was eligible for Veterans Affairs disability benefits was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court observed that the new evidence satisfied the materiality standard only if a reasonable possibility existed that would have changed the outcome of the commissioner's determination and since the administrative law judge based the decision to deny benefits partly on the fact that none of the claimant's physicians had pronounced him disabled while the Veterans Administration decision specifically found disability and such determination, like a treating physician's finding, constituted evidence "entitled to great weight." The court observed that the Veterans Affairs determination was not merely cumulative of other evidence since the Veterans Administration decision also concluded that the claimant suffered from irritability, sleep disturbance, and memory problems while the administrative law judge did not find sufficient evidence supporting the claimant's complaints in these areas. Finally, the court stated that the Veterans Administration also met the timing element of materiality since it related to the time period for which the benefits were denied since while the decision was based partly on medical records and physical examinations postdating the September 4, 1992 decision of the administrative law judge, it was also based on the hospitalization records from 1990 tracking the claimant's outpatient treatment for more than a year before the decision of the administrative law judge and the claimant's overall medical history.
The court in Lovings v. Commissioner S.S.A., 914 F. Supp. 1432, 50 Soc. Sec. Rep. Serv. 259, Unempl. Ins. Rep. (CCH) ¶15232B (E.D. Tex. 1995), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) authorizing district courts to remand cases to the Commissioner of Social Security where new, material evidence exists as does good cause for the failure of the claimant to introduce the evidence in an earlier proceeding, the fact that the Veterans Administration had rated a claimant for social security disability benefits as disabled was material.

§ 67[b] Disability determination by another agency—Held not material

The courts in the following cases, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have a determination of another agency that the applicant was entitled to disability benefits considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Lewis v. Sullivan, 902 F.2d 1578 (9th Cir. 1990), held that while a state disability determination made approximately a year after the Commissioner of Social Security had denied the claimant's application for supplemental security income benefits based upon heart disease, a ruptured disk and neck, and back pain satisfied the good–cause requirement since the claimant had not been able to put evidence of such determination before the administrative law judge, the claimant could not show that the state agency's decision was material for purposes of the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)). Since a determination by another governmental agency that a person is disabled is not binding upon the commissioner so a state finding of disability may be introduced into evidence before the commissioner and the commissioner may attribute as much or as little weight to it as the commissioner deems appropriate even if the claimant has been found eligible to receive state disability benefits under a standard more rigorous than that used to determine eligibility for supplemental security income. The court ruled that the state's decision was not sufficiently material to warrant a remand since the commissioner could refuse to give any consideration to a state agency's determination of disability.
The court in Caenen v. Secretary of Health and Human Services, 722 F. Supp. 629, 27 Soc. Sec. Rep. Serv. 437 (D. Nev. 1989), held that a determination by the Veterans Administration that an applicant for supplemental security income benefits based on disability was disabled as a result of a wrist injury was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since the applicant testified at the oral hearing before the administrative law judge that the Veterans Administration had declared his wrist problem to be a service–connected disability and even if the finding of the Veterans Administration were based upon a finding of chronic–pain disorder and dysthymic disorder meant only that there were complaints of pain, a fact well–known and considered by the administrative law judge, and while dysthymic disorder means depression, the condition appeared to have begun after the applicant's 8–year–old son drowned 19 years previously and should not at the time of case in 1986, be considered a disabling condition. While the applicant asserted that his current depression resulted not from the accident where his son was killed, but from pain from his arthritis, the court noted that the Veterans Administration medical certificate stated that the applicant had stated that he had been depressed since his son died 19 years before and this statement to his doctor while seeking treatment was much more reliable than statements in the instant proceedings and concluded that the Veterans Administration determination did not meet the test of materiality.

§ 68. Disability determination by another administrative law judge

[Cumulative Supplement]

The courts in the following cases held that subsequent decisions of administrative law judges that an applicant for social security disability was disabled were not material for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in King v. Secretary of Health and Human Services, 896 F.2d 204, 28 Soc. Sec. Rep. Serv. 555, Unempl. Ins. Rep. (CCH) ¶15286A (6th Cir. 1990), reh'g denied, (Apr. 3, 1990), held that evidence consisting of a July 27, 1989 decision of an administrative law judge that an applicant for supplemental Social Security benefits finding that the claimant had severe musculoskeletal and psychiatric/intellectual impairments was not material to the Secretary's 1985 decision that the claimant retained the residual functional capacity to perform light work and, therefore, was not disabled. The court stated that the new evidence made it apparent that claimant had a degenerative disease, arthritis, that did not impede her ability to perform other light work prior to 1985 and that remand pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) which provides for remands to the Commissioner of Social Security where new, material evidence exists as does good cause for the failure to produce the evidence in a prior proceeding, was not appropriate.
The court in Gilbert v. Secretary of Health and Human Services, 1995 WL 646328 (N.D. Ind. 1995), held that a decision by an administrative law judge that the claimant was disabled due to heart and fatigue problems beginning September 19, 1994 was not, for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) material evidence that the claimant was disabled prior to that date. Stating that additional evidence is "material" if there is a "reasonable probability" that the factfinder would have reached a different decision because of the additional evidence, the court ruled that the claimant had not shown a reasonable probability that the administrative law judge would have reached a different result had he known of the decision granting the claimant disability benefits for the period beginning September 19, 1994.

CUMULATIVE SUPPLEMENT

Cases:

Commissioner's award of Social Security disability insurance benefits based on claimant's second application, with an onset date of the day after the denial of claimant's first application, constituted new and material evidence warranting remand as to first application; fact of the award was likely to be of a significant and substantial character in relation to the denied claim, and the tight time line provided reasonable cause to believe the evidence related to the period on or before the date of the denial of benefits. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Bradley v. Barnhart, 463 F. Supp. 2d 577 (S.D. W. Va. 2006).
Evidence of ALJ's subsequent decision to award disability benefits on claimant's second application, after initial application was denied, was not material new evidence and thus, remand of appeal of initial application was not warranted; second application involved different medical evidence, different time period, and different age classification. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Bruton v. Massanari, 268 F.3d 824, 76 Soc. Sec. Rep. Serv. 313, Unempl. Ins. Rep. (CCH) ¶16663B (9th Cir. 2001), as amended, (Nov. 9, 2001).

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§ 69. Settlement by private disability insurer

The court in the following case held that evidence of a settlement between the private disability insurer of an applicant for social security disability income benefits and the applicant was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Pate v. Heckler, 777 F.2d 1023, 11 Soc. Sec. Rep. Serv. 285, Unempl. Ins. Rep. (CCH) ¶16546 (5th Cir. 1985), the court held that district court did not err in refusing to remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) authorizing district courts to remand cases to the Commissioner of Social Security if new, material evidence exists as does good cause for failing to present the evidence in an earlier proceeding, the case of a woman who sought Social Security benefits on the basis of mental illness where the new evidence consisted of a release showing that the claimant's disability insurer had paid her $10,000 in a settlement of a claim. The court found that no reasonable possibility existed that the evidence would have caused the commissioner to make a different determination, observing that the settlement with the claimant's disability insurance carrier would not likely have affected the commissioner's decision since disability determinations by other entities are not binding on the commissioner, who must make an independent determination based on applicable laws and regulations, and the settlement was not, in any event, an actual finding of disability.

§ 70. Evidence that disability benefits sought on voluntary basis

The court in the following case, in which a claimant for social security disability benefits sought remand to the Commissioner of Social Security in order to have evidence that the applicant was not being required to seek disability benefits by her private disability benefits insurer considered, held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Medina v. Shalala, 1993 WL 498206 (N.D. Ill. 1993), held that additional evidence consisting of a letter from the long–term disability insurer of an applicant for social security disability benefits based upon chronic, intractable benign–pain syndrome, cervical strain, and fibromyalgia acknowledging that the applicant was pursuing Social Security benefits on a voluntary basis and that she would continue to receive the same amount of money from the insurer regardless of the outcome of the Social Security hearings was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated the letter was material as it related to the claimant's condition in the sense that the administrative law judge had considered her financial motives to have a direct impact on the credibility of her testimony as to her condition and her complaints of pain at the time in question so a reasonable probability existed that disclosure of the letter would have changed the outcome since it rebutted the findings of the administrative law judge as to the applicant's financial motives.

§ 71. Participation in family court program

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have the fact that the applicant had participated in a family court program for incorrigible children considered, held that such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Counterman v. Chater, 923 F. Supp. 408, 50 Soc. Sec. Rep. Serv. 701, Unempl. Ins. Rep. (CCH) ¶15554B (W.D.N.Y. 1996), held that evidence that the mother of a child who had been denied disability benefits and the child were participating in a family court program for incorrigible children was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)). The court stated that evidence did not appear relevant to the request for disability benefits since the initial request for assistance under the family court program was made on March 30, 1994, roughly 6 months after the hearing on the child's application for supplemental security income, and was not probative since while the documents from the family court program appeared to indicate that the child's relationship with her parents deteriorated considerably from the time the child applied for supplemental security income they did not appear to be relevant to the child's asthma, allergies, learning disability, or even post–traumatic stress disorder.

§ 72. Affidavit regarding paternity

The court in the following case, in which an applicant for Social Security survivor's benefits sought remand to the Commissioner of Social Security in order to have an affidavit concerning the paternity of a child considered, held that such evidence was not material for purposes of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Finley v. Sullivan, 902 F.2d 1578 (9th Cir. 1990), held than an affidavit submitted by 1 of 4 men that the mother of a child had had sex with them during the period of the child's conception stating that he believed the child was his child and giving a reason why 1 of the 4 men who may have been the child's father had acknowledged paternity at the time of the birth was not material for purposes of the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)) since new evidence must bear directly and substantially on the matter in issue and a reasonable possibility exists that the new evidence would have changed the outcome if introduced in the earlier proceeding. The court stated that the affidavit did not meet this standard as it did not substantially modify the evidence already presented and was not, therefore, material since there was no factual basis for the affidavit's conclusion that the affiant was the parent's child except that he had sex with the mother during the period in question and the mother had already acknowledged that she had sexual intercourse with 4 men during the period in question. Furthermore, speculations as to the state of mind of the man who acknowledged paternity near the time of birth did not add anything to the evidence already presented and was properly disregarded.
comment The dispute arose when the child in question, whose mother never married the man who acknowledged paternity, applied for a portion of the benefits which the woman who married the man who acknowledged paternity claimed when the man died. Since allowance of the child's claim would have reduced the benefits of the wife of the man who acknowledged paternity, the wife attempted to prove that her husband was not the father of the child.

§ 73. Aging

The court in the following case, in which an applicant for Social Security survivor's benefits sought remand to the Commissioner of Social Security in order to have the fact that the applicant had turned 50 years old held that considered, such evidence was not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Madrigal v. Sullivan, 777 F. Supp. 1503, 35 Soc. Sec. Rep. Serv. 666, Unempl. Ins. Rep. (CCH) ¶16301A (N.D. Cal. 1991), held apparently pursuant to the sixth sentence of § 205(g) of the Social Security (42 U.S.C.A. § 405(g)) providing for remand to the Commissioner of Social Security where new, material evidence and good cause exist for the failure to produce the evidence in a prior proceeding, that an applicant for social security disability benefits was not entitled to a remand to the commissioner since he turned 50 after the decision of the administrative law judge denying his claim, stating an applicant seeking remand on the basis of changed circumstances must demonstrate that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record in a prior proceeding and that the new evidence must be probative of plaintiff's condition as it existed at the relevant time—at or before the disability hearing—and in the instant case the applicant's change in age was not probative of his condition at the time of the administrative law judge's decision.

§ 74. Evidence of treatment as wife

The court in the following case, in which an applicant for Social Security survivor's benefits sought remand to the Commissioner of Social Security in order to have statements that friends of a woman considered her to be wife of a man through whom the woman sought Social Security survivor's benefits held that the statements were not material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Johnson v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶16535, 1985 WL 71811 (D.D.C. 1985), held that an applicant for widow's benefits had not established for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) the materiality of evidence that her friends and family considered her to be married to the person through whom she sought widow's benefits.

§ 75. Evidence of daily experiences

The court in the following case, in which an applicant for Social Security survivor's benefits sought remand to the Commissioner of Social Security in order to have evidence of the claimant's daily activities and physical capabilities considered, held that such evidence was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Medina v. Shalala, 1993 WL 498206 (N.D. Ill. 1993), held that additional evidence consisting of an affidavit from the applicant's husband concerning her daily experiences and physical capabilities was material for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) as there was a reasonable probability of having changed the administrative law judge's decision if admitted since the administrative law judge had found the applicant's testimony about such items incredible.

3. Good Cause for Failing to Introduce Evidence Earlier

§ 76. Disability determination by another agency

The courts in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have additional evidence where another governmental agency had found the applicant to be disabled considered, held that good cause existed for the failure to introduce the new evidence earlier in the proceeding as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Latham v. Shalala, 36 F.3d 482, 45 Soc. Sec. Rep. Serv. 618, Unempl. Ins. Rep. (CCH) ¶14170B (5th Cir. 1994), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of the claimant to introduce the fact that he had been found by the Veterans Administration to qualify for Veterans Administration disability benefits since the Veterans Administration did not make its determination until after the commissioner had denied the claimant's application for disability benefits.
The court in Lovings v. Commissioner S.S.A., 914 F. Supp. 1432, 50 Soc. Sec. Rep. Serv. 259, Unempl. Ins. Rep. (CCH) ¶15232B (E.D. Tex. 1995), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause clearly existed for the failure to introduce into hearings before the administrative law judge held on November 26, 1990, and June 14, 1993, evidence that the Veterans Administration had rated the claimant as disabled since the Veterans Administration decision was not released until 1995.

§ 77. Destruction of administrative record

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have additional evidence consisting of the evidence presented at the administrative hearing considered, as the tape of the hearing had been lost, held that good cause existed to remand the case for another administrative hearing pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court in Ferraro v. Secretary of U.S. Dept. of Health and Human Services, 770 F. Supp. 100, 34 Soc. Sec. Rep. Serv. 621, Unempl. Ins. Rep. (CCH) ¶16398A (E.D.N.Y. 1991), amendment denied, 780 F. Supp. 978 (E.D.N.Y. 1992), held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where the tape recordings of the claimant's oral hearing were lost or inaudible, stating that the legislative history[FN16] of § 205(g) indicated that the loss of a hearing transcript would constitute good cause for remand. The court observed that without a transcript of the hearing before the administrative law judge the record could not be scrutinized in its entirety and could not address the issue of whether res judicata precluded the applicant from receiving disability benefits. Accordingly, the court held that the appropriate remedy was a remand of the case with instructions to conduct an administrative hearing de novo.

§ 78. Inability to find school records

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have additional evidence consisting of school records considered, held that good cause existed to remand the case as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in St. Cyr v. Chater, 1995 WL 870967 (W.D.N.Y. 1995), held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) existed for the failure to introduce in the administrative hearing certain school records as the school system in question was not able to locate them at the time of the administrative hearing. The court noted that the claimant's previous counsel had sent the administrative law judge a letter explaining that the school system had not been able to find the records which demonstrated at a minimum that the claimant's former attorney informed the administrative law judge why certain specific records were not available and what measures she was taking to obtain them. The court noted that the claimant's current attorney represented that the age and various sources of the records hampered their availability and that when counsel finally obtained them in June 1995, he forwarded them to the government with a request for a voluntary remand which was refused. While the commissioner argued that the claimant should have requested an extension of time to obtain the records or should have submitted them to the Appeals Council if the claimant wanted them to be part of the record, the court found that the claimant had shown good cause as the claimant's counsel adequately explained the time constraints he faced before the Appeals Council, the state of the record at that time and how he immediately followed up on the plaintiff's prior efforts to obtain the records as soon as he learned of them.

§ 79. Family history

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have additional evidence of family history considered, held that good cause existed to remand the case as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Ross v. Secretary of Health & Human Services, 836 F.2d 550 (6th Cir. 1987) (publication and use restricted), held that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) existed for the failure of a woman who allegedly received excess Social Security benefits to introduce evidence indicating that her husband had been hospitalized for substance abuse, that debts were incurred by the wife as a result of the substance abuse problem and the effect of the woman's impending divorce upon her financial position because the debts had not yet been incurred or the possibility of divorce contemplated at the time of the administrative hearing.

§ 80. Evidence that disability benefits sought on voluntary basis

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have additional evidence consisting of a letter from the applicant's disability insurer, stating that the applicant's benefits would not be reduced if she did not file for social security disability benefits, considered, held that good cause existed for the failure to introduce the letter earlier in the proceeding as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Medina v. Shalala, 1993 WL 498206 (N.D. Ill. 1993), held that for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) authorizing district courts to remand cases to the Commissioner of Social Security where new, material evidence and good cause exist for the failure of the claimant to introduce the evidence in an earlier proceeding, good cause existed for the failure of an applicant for social security disability benefits based upon chronic, intractable benign–pain syndrome, cervical strain, and fibromyalgia to submit earlier a letter from her long–term disability insurer stating that she was pursuing Social Security benefits on a voluntary basis and that she would continue to receive the same amount of money from the insurer regardless of the outcome of her application for disability benefits as it would be difficult to anticipate the administrative law judge's "spontaneous" conclusion that the applicant was being forced to seek social security disability benefits because of her long–term disability insurer's threat to discontinue payment of benefits given the court's finding that the record did not support the conclusion of the administrative law judge.

§ 81. Conviction for drunk driving

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), which provides that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, in order to have additional evidence consisting of a drunk–driving conviction considered, held that good cause existed for the failure to introduce evidence of the conviction.
In Johnson v. Shalala, 1993 WL 560903 (D. Kan. 1993), the court held that good cause existed for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure earlier to introduce evidence that an applicant for social security disability benefits based upon alcoholism had since the administrative law judge denied his claim been convicted of operating a motor vehicle while under the influence of alcohol since the evidence was clearly unavailable at the time of the administrative hearing.

§ 82. W–2 form

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have additional evidence consisting of a W–2 form considered, held that good cause did not exist for the failure to introduce such evidence earlier in the proceeding as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Keen v. Secretary of Health and Human Services, 833 F.2d 1012 (6th Cir. 1987), held that the district court did not err in denying a request to remand a case to the Commissioner of Social Security pursuant to sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) when the claimant sought a remand to introduce a 1978 W–2 form showing her earnings in 1978 in order to establish that receipt of such wages entitled her to disability insurance through December 31, 1983 since the W–2 form submitted by the claimant was by no means new as it had been in the claimant's possession since at least 1980, and, hence, the claimant could have presented it to the administrative law judge.

§ 82.5. IRS letter

[Cumulative Supplement]

The following authority considered whether good cause was shown for the failure to submit an IRS letter under 42 U.S.C.A. § 405(g).

CUMULATIVE SUPPLEMENT

Cases:

Remand, on basis of purported new evidence, was not required in social security disability benefits case, where claimant failed to show good cause for his failure to submit IRS letter and record of account to ALJ or to district court; ALJ had specifically asked claimant about his tax return for the relevant period, and claimant was given opportunity to provide the evidence, and told he could subpoena any documents that would support his claim. Ostrovsky v. Massanari, 83 Fed. Appx. 354 (2d Cir. 2003).

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§ 83. Disability determination by another administrative law judge

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have additional evidence, that a subsequent application of the claimant for social security disability benefits had been approved by another administrative judge, considered, held that good cause had not been shown for the failure to introduce such evidence earlier in the proceeding as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Veal v. Bowen, 833 F.2d 693, 19 Soc. Sec. Rep. Serv. 624, Unempl. Ins. Rep. (CCH) ¶17682 (7th Cir. 1987), the court held that an applicant for social security disability benefits based upon double vision, shortness of breath, occasional insomnia, nervousness, swelling in her knees, ankles, and hands, arthritis in her right hand, a fibroid tumor in her uterus, gallstones, headaches, dizziness, back and kidney pain, a blood disease, and high blood pressure had not shown that good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, for failure of the applicant to introduce evidence that a subsequent application of the applicant for disability benefits had been granted by the Social Security Administration. The court noted that on January 24, 1986, the commissioner awarded the applicant benefits dating back to the date she filed her second application, while the district court did not enter its order affirming the decision of the administrative law judge denying the first claim for benefits until October 3, 1986, and held that the failure to show good cause for not introducing evidence of the grant of the second application required the court to grant the commissioner's motion to vacate the order to supplement the record. While the applicant argued that her counsel made 2 attempts before the district court issued its order to obtain evidence of the grant of the applicant's second application, the court stated that the fact remained that the evidence was available well before the district court issued its order in the case and the applicant made no effort to apprise the court of the existence of the evidence and there was no indication that the applicant through her counsel was insufficiently informed in procedural matters to make such a supplemental submission to the district court.

§ 84. Letter explaining terms of workers' compensation award

The court in the following case, in which an applicant for social security disability benefits sought remand to the Commissioner of Social Security in order to have additional evidence, consisting of a letter explaining the terms of a workers' compensation award, considered, stated that good cause did not exist for the failure to introduce such evidence earlier in the proceeding as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
In Frost v Chater (1996, DC ND) 952 F Supp 659, 52 Soc Sec Rep Serv 750, the court stated that the failure to introduce before the administrative law judge a letter explaining the terms of a workers' compensation award could only be considered an oversight and that such a miscalculation does not ordinarily amount to good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
comment However, the court stated that since a remand was necessary in view of a misunderstanding of a workers' compensation reverse offset, the length of the substitute period of benefits should also be examined.

§ 85. Briefs from workers' compensation hearing

The court in the following case, in which an applicant for Social Security disabled widow's benefits sought remand to the Commissioner of Social Security in order to have additional evidence consisting of briefs from a workers' compensation hearing considered, held that good cause did not exist for the failure to introduce such evidence earlier in the proceeding as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court in Lorge v. Shalala, 1996 WL 266129 (N.D. Cal. 1996) (publication and use restricted), held that an applicant for disabled widow's benefits had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of the applicant to introduce earlier 2 briefs from her worker's compensation hearing regarding the incident where she was injured to prove the date of her injury. The court stated that all of the evidence that the applicant submitted was available to her at the time of the hearing before the administrative law judge and failure to properly file documents with the administrative law judge does not meet the good–cause requirement.

§ 86. Evidence of treatment as wife

The court in the following case, in which an applicant for Social Security survivor's benefits sought remand to the Commissioner of Social Security in order to have additional evidence, consisting of statements that friends of a woman considered her to be the wife of a man through whom the woman sought social security survivor's benefits, considered, held that good cause did not exist for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Johnson v. Sec. of HHS, Unempl. Ins. Rep. (CCH) ¶16535, 1985 WL 71811 (D.D.C. 1985), held that an applicant for widow's benefits had not established for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, good cause for failing to introduce at the administrative hearing evidence that her friends and relatives had considered her to be married to the person through whom she claimed widow's benefits.

§ 87. Evidence of intent to leave wife

The court in the following case, in which an applicant for Social Security survivor's benefits sought remand to the Commissioner of Social Security in order to have additional evidence that a man who intended to leave his second wife considered, held that good cause did not exist for the failure to introduce the evidence earlier in the proceedings as required by the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding.
The court in Brickey on Behalf of Perez v. Bowen, 722 F. Supp. 318, 27 Soc. Sec. Rep. Serv. 430, Unempl. Ins. Rep. (CCH) ¶15277A (S.D. Tex. 1989), held that the first wife of a man who remarried and then died after leaving his house after an argument with his second wife was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) when her lawyer requested a rehearing to develop additional testimony indicating that the man had intended to leave his second wife as the lawyer had not shown there was good cause for the failure to incorporate evidence that the man intended to leave his second wife earlier in the proceedings.

§ 88. Evidence of employment

The court in the following case held an applicant for social security disability benefits had not, for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) authorizing district courts to remand cases to the Commissioner of Social Security where there is new, material evidence and good cause exists for the failure to introduce the evidence at an earlier proceeding, established good cause for not providing evidence that he had been employed at the time in question to the administrative law judge or the Appeals Council.
The court in Santos Rios v. Secretary of Health and Human Services, 953 F.2d 633 (1st Cir. 1991) (use and publication restricted), held that an applicant for social security disability benefits based on paranoid schizophrenia and personality disorder had not, for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) established good cause for not providing to the administrative law judge or the Appeals Council evidence that he had been employed at the time in question, stating that it had concluded that remands for good cause were intended to be sparingly granted and the fact that new counsel has thought of a new argument which could have, but was not, developed earlier and has tendered some evidence of dubious quality in support of it does not amount to good cause for remand.

IV. REQUESTS FOR REMAND BY COMMISSIONER

§ 89. Request for remand granted

[Cumulative Supplement]

The courts in the following cases granted requests by the Commissioner of Social Security that cases be remanded to the Commissioner pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may for good cause shown remand cases upon request of the commissioner prior to the commissioner filing an answer to an applicant's appeal of the administrative denial of his claim and at any time may remand cases for the taking of further evidence by the Commissioner where there is new and material evidence and good cause exists for the failure to introduce the evidence earlier in the proceeding.
The court in Anderson v. Secretary of Health and Human Services, 1987 WL 30201 (E.D.N.Y. 1987), held that the refusal of an applicant for supplemental security income based on disability resulting from the applicant's failure to undergo testing to determine the level of anti–convulsive medication in his blood constituted good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)).
The court in Colon v. Sullivan, 1989 WL 85183 (S.D.N.Y. 1989), held that the Commissioner of Social Security had established that good cause exists for the failure of the commissioner to introduce earlier into the proceedings evidence concerning the residual functional capacity of an applicant for social security disability benefits based on chronic migraine headaches, asthma, degenerative joint disease, heel spurs, and severe dysthymic and personality disorders whose claim for benefits was denied by an administrative law judge on the grounds that the applicant could still do work as a sewing machine operator that she had done 25 years earlier. The court rejected the argument of the applicant that good cause did not exist because the irrelevance of the applicant's work 25 years earlier was clear and that the government should have discovered earlier that such work experience was irrelevant under Social Security regulations since the administrative law judge had apparently relied on a statement in the applicant's initial disability report to the effect that the plaintiff had last worked in 1981, well within the 15–year period where past work is considered relevant. Furthermore, it was the applicant pointing out that further inquiry into the report revealed it was not actually written by the applicant and was, in fact, internally contradictory so that the fact that the government recognized that this determination was incorrect was more a result of the applicant's cogent arguments than of clear error such that the government should have discovered it earlier.
The court in Torres v. Shalala, 938 F. Supp. 211, 51 Soc. Sec. Rep. Serv. 842 (S.D.N.Y. 1996), held that remand of an action alleging that the Commissioner of Social Security wrongfully denied a claimant's application for disability benefits was appropriate under sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where the Commissioner conceded that the administrative law judge should have considered the "severe" mental impairment established by a hospital report when evaluating the claimant's capacity to maintain employment. The court stated that the commissioner had demonstrated good cause by acknowledging legal error and that a sentence six remand was especially appropriate given that Congress enacted a statutory scheme under sentence six whereby the commissioner has the opportunity to reconsider a decision denying benefits without having to defend the decision by answering the complaint and Congress conditioned that opportunity upon the claimant's ability to return to the district court to resolve disputes or seek interim relief.
The court in Arnold v. Sullivan, 131 F.R.D. 129, 30 Soc. Sec. Rep. Serv. 663, Unempl. Ins. Rep. (CCH) ¶15771A (N.D. Ind. 1990), held that for purposes of remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) good cause existed for the failure to introduce earlier in the proceeding evidence that the applicant had been engaged in employment during a time she claimed to have been disabled since the commissioner made diligent efforts to obtain the information from the applicant and, except for the misconduct and misrepresentations of the applicant, accurate information would have been presented.
In Wolf v. Apfel, 985 F. Supp. 843, 55 Soc. Sec. Rep. Serv. 470 (N.D. Ill. 1998), the court granted the motion of the Commissioner of Social Security to remand the case to the commissioner pursuant to sentence six of 42 U.S.C.A. § 405(g) because the commissioner moved for a remand before answering the claimant's complaint and showed good cause for doing so. The court stated that the good cause was the fact that the commissioner had not considered the claimant's evidence that neither he nor his representatives received notice of the administrative law judge's dismissal of the claimant's request for a hearing on his first application for SSI benefits.
The court in Hanson v. Chater, 895 F. Supp. 1279, 48 Soc. Sec. Rep. Serv. 953, Unempl. Ins. Rep. (CCH) ¶15013B (N.D. Iowa 1995), held that remand to the Commissioner of Social Security was appropriate under the sixth sentence of § 205(g) (42 U.S.C.A. § 405(g)) when the commissioner moved for remand in order to obtain additional medical evidence and the claimant did not object to the remand. The court stated that while dispute existed as to whether the Commissioner had to satisfy the requirement of the second portion of the sixth sentence—that additional evidence be new, material evidence and good cause exist for the failure to introduce the evidence in earlier proceeding—in the instant case it did not matter which view the court adopted since the court concluded that good cause existed to remand the case for further administrative proceedings. While the commissioner had not specifically articulated that the further consideration and evaluation of the claimant's medical status and functional abilities and the acquisition of a consulting physician's credentials were based on new, material evidence, the court stated that it could infer that the commissioner believed that additional evidence existed that was noncumulative, relevant, and probative of the claimant's condition for the time period for which the benefits were denied and that a reasonable likelihood existed that further consideration and evaluation of the claimant's case would change the commissioner's determination. With respect to the issue of good cause, the court noted that while the commissioner had not indicated that this evidence did not exist previously or that it was otherwise unavailable for prior consideration, the court stated that since the claimant agreed to remand the case for further administrative proceedings and since the Commissioner and the Appeals Council believed that further consideration of the case was warranted it would interpret the parties' agreement to remand and the showing of new, material evidence as sufficient showing of good cause.
The court in Meyer v. Sullivan, 742 F. Supp. 586, 31 Soc. Sec. Rep. Serv. 93, Unempl. Ins. Rep. (CCH) ¶15855A (D. Kan. 1990), related reference, 791 F. Supp. 275, 37 Soc. Sec. Rep. Serv. 421 (D. Kan. 1992), held that remand on the motion of the Commissioner of Social Security to obtain the testimony of a vocational expert within the second category outlined in the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) was proper without discussing the issue of good cause, newness, or materiality.
In Staley v. Sullivan, 1990 WL 118240 (D. Kan. 1990), amendment denied, 1991 WL 33527 (D. Kan. 1991), the court granted the motion of the Commissioner of Social Security to remand the case to the commissioner for a hearing on the application stating that the motion under the first category of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) since a favorable ruling on the merits of applicant's application for benefits would resolve the matter without court action so good cause had been shown for the remand to the commissioner.
The court in Martin (Clara D.) v. Sullivan (Louis M.), 1993 WL 17472 (D. Kan. 1993), held that there was good cause for purposes of sentence six of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) supporting the motion of the commissioner to remand a case to the commissioner to allow the administrative law judge to more fully investigate court records to determine whether the deceased wage earner divorced his first wife before he entered into a common–law marriage with the plaintiff.

CUMULATIVE SUPPLEMENT

Cases:

An ALJ's failure to fulfill his obligation to build a full and fair record in a social security disability benefits case is good cause to remand for gathering additional evidence. Social Security Act, § 205(g), 42 U.S.C.A. § 405(g). Briscoe ex rel. Taylor v. Barnhart, 309 F. Supp. 2d 1025 (N.D. Ill. 2004).
Remand for reconsideration was required with respect to whether claimant seeking social security disability benefits qualified as disabled under worn–out worker rule where administrative law judge (ALJ) failed to take repetitive, fast–paced nature of claimant's coal room work into account in considering whether that work was "arduous," did not make specific findings as to whether work that claimant performed in store and as farm laborer was "arduous," did not indicate basis for not considering farm work performed by claimant before he was 17, and did not address marginal education prong of rule. Social Security Act, 216(i), as amended, 42 U.S.C.A. § 416(i); 20 C.F.R. §§ 404.1562, 416.962. Regino Cavazos v. Apfel, 130 F. Supp. 2d 1016 (N.D. Ind. 2000).
Remand with instructions for an award of benefits was required in social security disability benefits case, where the Commissioner had already considered the essential evidence and it was clear that the cumulative effect of the evidence established disability without any doubt. Frizzell v. Astrue, 487 F. Supp. 2d 1301 (N.D. Ala. 2007).

[Top of Section]


[END OF SUPPLEMENT]


§ 90. —Denied

The courts in the following cases denied requests by the Commissioner of Social Security that cases be remanded to the commissioner pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may for good cause shown remand cases upon request of the commissioner prior to the commissioner's filing an answer to an applicant's appeal of the administrative denial of the claim and at any time may remand cases for the taking of further evidence by the commissioner where new and material evidence and good cause exist for the failure to introduce the evidence earlier in the proceeding, where—
—the medical evidence overwhelmingly indicated that the applicant suffered from disability caused by severe mental problems since Congress has expressed an intent to limit remands by the courts to the commissioner, and the Supreme Court has noted that delay, uncertainty, and expense in a remand can work very real hardship upon an applicant. Kapp v. Secretary of Health and Human Services, 1985 WL 5754 (D. Mass. 1985).
—the Commissioner of Social Security did not show what new evidence the commissioner desired to introduce through a consultative psychiatric examination and vocational expert testimony or that good cause existed for failing to produce it earlier. McLaughlin v. Sullivan, 1 Nat'l Disability Law Rep. P 52, 1990 WL 121607 (S.D.N.Y. 1990).
—the Commissioner of Social Security made no showing that on remand that new and material evidence would be introduced and had failed to give any reason, let alone show good cause, why the evidence was not introduced at the prior administrative proceeding since a remand in the instant case would be contrary to the congressional policy of encouraging greater care at the administrative level and preventing cases such as this one from going "on and on and on." Formica v. Shalala, 1994 WL 414299 (D. Conn. 1994).
—the Commissioner of Social Security had not previously discovered an error made by the administrative law judge in applying the correct Medical–Vocational Guideline (Grid) and in using his findings as to the residual functional capacity of the applicant.Honey v. Sullivan, 1989 WL 134517 (E.D. Ark. 1989)
—the Commissioner of Social Security had not explained the failure to introduce before the administrative law judge evidence that an applicant for retirement benefits had received written notice that his application for retirement benefits was denied because he had reported earning $18,000 in the prior year and expected to earn $18,000 in the instant year. Zurcher v. Bowen, Unempl. Ins. Rep. (CCH) ¶16967, 1986 WL 83387 (D. Or. 1986).
—the evidence that the Commissioner of Social Security wanted considered after remand was evidence submitted to the commission and that the commissioner refused to consider when the case was before the commission. Rice v. Shalala, 1994 WL 326283 (D. Or. 1994).
—the Commissioner of Social Security had not explained the failure to obtain a psychiatric and consultative examination to clarify the extent of plaintiff's nonexertional limitations. Thomas v. Sullivan, 1990 WL 53371 (M.D. Fla. 1990).
The court in Field v. Chater, 920 F. Supp. 240, 50 Soc. Sec. Rep. Serv. 562, Unempl. Ins. Rep. (CCH) ¶15521B (D. Me. 1995), held that a remand to the Commissioner of Social Security pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) was not appropriate where the court found that no good cause existed for the commissioner's failure to introduce testimony at the administrative hearing as to the transferability of the claimant's work skills. The court stated that the commissioner's request for a remand was no more than a request for a second bite at the apple, well over 2 years after the claimant had filed her initial request for benefits, and that to remand under such circumstances would be to countenance the notion that the Commissioner may have as many chances as she needs, ad infinitum, to meet her burden of showing that there are a significant number of jobs in the national economy capable of being performed by the claimant, after the claimant has established that she is not engaged in substantial gainful activity, that she suffers from a severe impairment, and that her impairment prevented her from performing her past work. The court stated that such a possibility could not be what Congress envisioned when it amended § 205(g) in 1980 to speed up disability determinations. A claimant who seeks disability benefits from the Social Security Administration, and then does all that is expected of her pursuant to the sequential evaluation process, deserves an answer from the system so that where the claimant has made out a prima facie case for benefits and the commissioner's vocational expert does not present the required evidence of the claimant's ability to perform work that exists in the national economy, the appropriate relief is an award of benefits absent some good cause for the evidentiary gap.
The court in Keppler v Heckler (1984, SD NY) 587 F Supp 1319, held that the Commissioner of Social Security had failed to establish good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing for a remand by district courts new, material evidence as does good cause for its failure to present the evidence in an earlier proceeding, for the failure of a government–retained doctor to review the results of a CAT scan of an applicant for social security disability benefits since either the administrative law judge or the Appeals Council could have ordered the physician to review the CAT scan results, but the submissions filed by the commissioner utterly failed to address the issue of good cause so the court was clearly prohibited by § 205(g) from ordering an evidentiary remand. This fact is especially so where the Appeals Council specifically ordered the administrative law judge on remand to obtain the results of a CAT scan and myelogram and to make this evidence available to the consultant before the examination of the claimant, and the administrative law judge inexplicably failed to follow the procedure dictated by the Appeals Council where despite this failure, the Appeals Council denied the applicant's request for a review of the administrative law judge's decision and adopted that determination as the final decision of the commissioner. The court noted that the Second Circuit in Aubeuf v. Schweiker, 649 F.2d 107 (2d Cir. 1981), on remand to, Unempl. Ins. Rep. (CCH) ¶15282, 1983 WL 44299 (N.D.N.Y. 1983), had recently noted that the prerequisites for an evidentiary remand promulgated by section 205(g) were at least in part designed to limit federal court remands to the Commissioner and stated that the instant case was an appropriate one where to effectuate Congress' mandate to foreshorten the often painfully slow process by which disability determinations are made since it had been more than 3 years since the applicant applied for disability insurance benefits. Further, despite overwhelming evidence that the claimant was totally disabled, the commissioner had continued to deny his application for benefits, and a remand and possibly a further appeal to the court were certain to delay even further the benefits to which the claimant was entitled on the present record. The court concluded such a result was unconscionable and could not be sanctioned by it.
The court in Babula v. Secretary of Health and Human Services, 655 F. Supp. 1117, 17 Soc. Sec. Rep. Serv. 269 (W.D.N.Y. 1987), held that the Commissioner of Social Security was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where the Secretary acknowledged that the administrative law judge had not applied the proper legal standard in holding that the patient was not entitled to reimbursement under Medicare for certain nursing services as the court also found that the evidence in the record made remand unnecessary since the treating physician indicated on several occasions that the applicant required skilled nursing care and this opinion was entirely consistent with the opinion of a utilization review nurse.
The court in Berestecki v. Secretary of Health and Human Services, 662 F. Supp. 1521, 18 Soc. Sec. Rep. Serv. 601, Unempl. Ins. Rep. (CCH) ¶17847 (S.D.N.Y. 1987), held that the Commissioner of Social Security was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, in an action for social security disability benefits based upon other vertebrogenic disorders (e.g., herniated nucleus pulposus, spinal stenosis) when all of physicians examining the applicant noted that she suffered from back pain, the presence of spasm was diagnosed by 2 examining doctors, limitation of motion of the lumbosacral spine was found by 2 examining physicians and that the applicant suffered a significant motor loss was evident from the way she walked with a limp and that her left leg had atrophied, apparently from lack of use, and neurological damage required to document sensory and reflex loss in the paresthesia of the left leg was noted by 2 of the examining physicians. The court stated that the commissioner had not made any explanation of why the evidence it wanted to develop was important enough now to warrant a remand, but not important enough to have bothered developing before the initial administrative hearing and that the delay inherent in a remand was to be avoided.
The court in Cosme v. Bowen, 1987 WL 16969 (S.D.N.Y. 1987), held that the Commissioner of Social Security was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in a case where after the commissioner determined that an applicant for social security disability benefits was capable of returning to her past work as a floor girl in a clothing factory, the court reversed such finding and remanded the action to the commissioner for the sole purpose of calculating the benefits due the applicant. Upon remand, the commissioner suggested that the applicant could engage in light work that would not involve use of her left arm and that the case be remanded to allow the taking of testimony from vocational experts as to the specific jobs the applicant could perform. But the court declined to do so since a remand to conduct further proceedings is appropriate only upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record in a prior proceeding and the commissioner had made no such showing.
The court in Miller v. Bowen, Unempl. Ins. Rep. (CCH) ¶17984.1, 1987 WL 17433 (S.D.N.Y. 1987), held that the Commissioner of Social Security was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in a case where an administrative law judge had denied a request for social security disability benefits based on arthritis, hypertension, and diabetes, in order to allow the commissioner to more fully investigate the applicant's orthopedic complaints and to determine whether the applicant possessed any skills transferable to work requiring less physical exertion than his past job. The court explained that the commissioner had not given a reason why—almost 2 years after the hearing before the administrative law judge—he needed to develop this information or why he did not attempt to develop this information before the initial hearing over 2 years ago. Accordingly, the court found the commissioner had not established good cause for a remand and stated that the present case would be an appropriate one to carry out Congress' mandate to foreshorten the often painfully slow process by which disability determinations are made since the applicant was 60 years old when he appeared before the administrative law judge and was 62 at the time of the court's opinion.
The court in Thompson v. Secretary of Health and Human Services, 721 F. Supp. 34, 27 Soc. Sec. Rep. Serv. 401 (W.D.N.Y. 1989), held that the Commissioner of Social Security had not established good cause for purposes of the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) for the failure of the administrative law judge to call any physician or vocational expert as a witness in a case where the administrative law judge denied a claim for social security disability benefits on the grounds of residual functional capacity and had not even indicated the type of new and, supposedly, material evidence that the commissioner wished to incorporate in the record.
The court in Breault v. Secretary of HHS, Medicare & Medicaid 37945, 1989 WL 97939 (N.D.N.Y. 1989), held that the Commissioner of Social Security was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in the case of an individual applying for Medicaid reimbursement for skilled nursing home care where the commissioner sought a remand where he might have misapplied the law since § 205(g) does not apply if the administrative law judge misapplies the law. With regard to the claim of the commissioner that remand was necessary to develop the record with respect to the nature and frequency of the physical therapy the claimant actually received during the time in question, the court stated that the commissioner had not shown good cause for his failure to incorporate such evidence into the earlier administrative proceeding. However, the court observed evidence existed in the record that the patient received additional skilled nursing services which would entitle him to Medicare benefits such as heat treatments to heal a bedsore on his coccyx ordered by his physician. The plaintiff's nurses observed and assessed his changing condition as the nurses constantly monitored his liquid intake and voiding, and the plaintiff had been catheterized at least once pursuant to doctor's orders that this be done if the plaintiff failed to void every 24 hours. The court found that since the individual received services specifically defined in the regulations as skilled nursing and rehabilitative services the commissioner's decision was not supported by substantial evidence, and remanded the case to the commissioner for calculation of Medicare benefits.
The court in DeYoung v. Shalala, Medicare & Medicaid 43562, 1995 WL 579755 (D. Vt. 1995), held that the Commissioner of Social Security was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) in order to develop the record to include information concerning undocumented home health care visits, in order to assess whether the home health care visits that the patient (the plaintiff's deceased mother) received were medically reasonable and necessary. The court stated that to order remand under the second part of sentence six the court must find "good cause for failure to incorporate such evidence into the record in a prior proceeding," but the commissioner had not presented evidence showing good cause.
In the case of a woman who applied for social security disability benefits based upon hypertension, minimal spinal abnormalities, and pain in her back, the court in Scarlata v. Schweiker, 533 F. Supp. 469 (E.D. Pa. 1982), reversed the decision of the administrative law judge denying the applicant's claim and declined the request of the commissioner to remand the case pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) where the applicant underwent physical examinations by 5 doctors, testified at the hearing, and produced a corroborating witness and fully met her burden of proving an inability to perform her past work. The court observed that the uncontradicted medical evidence supported the applicant's claim of an inability to perform any substantial employment, not just her past "sedentary to light, and semi–skilled" work.
The court in Larkin v. Heckler, 584 F. Supp. 512, 5 Soc. Sec. Rep. Serv. 611, Unempl. Ins. Rep. (CCH) ¶15727, 40 Fed. R. Serv. 2d (LCP) 1202 (N.D. Cal. 1984), related reference, Unempl. Ins. Rep. (CCH) ¶15728, 1984 WL 62834 (N.D. Cal. 1984), held that the government was not entitled to a remand pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g) in order to allow the Appeals Council to obtain a consultative psychiatric examination with psychological testing since such a bare assertion, without explanation or justification of any kind, could not remotely be considered "good cause shown" within the meaning of § 205(g). The court noted that the record strongly suggested the motion had been interposed to cause unnecessary delay since the amended complaint of the applicant was served on or about September 19, 1983. In December 1983, the government sought a 30–day continuance within which to answer and perfect the record for review. In January 1984, the government sought a second continuance; in February it sought a third continuance that expired March 8, 1984; and on April 12, after it had been in default for more than 30 days, the government filed the instant motion.

§ 91. Request for remand invited

The courts in the following cases stayed decisions reversing terminations of social security disability benefits in order to allow the Commissioner of Social Security to introduce additional evidence satisfying the requirements of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), providing that district courts may at any time order additional evidence taken before the commissioner upon a showing that new, material evidence exists as does good cause for the failure to incorporate such evidence into the record of a prior proceeding, and justify a rehearing before the commissioner.
The court in Glover v. Heckler, 588 F. Supp. 956, 6 Soc. Sec. Rep. Serv. 619 (S.D.N.Y. 1984), held that if the Commissioner of Social Security had additional evidence meeting the requirements for remand specified in the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)), it would consider a remand for such a purpose. The court therefore stayed its decision reversing the decision to suspend the applicant's social security disability benefits, but stated that if no such motion were made, or, if made, were denied, the case would be remanded to the commissioner for the sole purpose of calculating benefits.
The court in Torres v. Heckler, 1984 WL 888 (S.D.N.Y. 1984), related reference, 1984 WL 961 (S.D.N.Y. 1984), stayed its decision to reverse the decision of the administrative law judge terminating the disability benefits of a 40–year–old, illiterate, non–English speaking, seizure–prone, one–handed, 96–pound, former groundskeeper who had not worked in 7 years during which stay the commissioner of Social Security might, if she were so inclined, move for a remand to present new evidence pursuant to the sixth sentence of § 205(g) of the Social Security Act (42 U.S.C.A. § 405(g)) and stated that no such motion was made, or if the motion were made and denied, the case would be remanded to the commissioner for the sole purpose of calculating benefits from the date of termination.

RESEARCH REFERENCES

Westlaw® Natural Language Search Query: remand pursuant to § 205(g) of Social Security Act (42 U.S.C. § 205(g))



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West's Key Number Digest, Social Security and Public Welfare 142.5
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Westlaw Databases

Westlaw® Search Query: (205(g) 405(g)) /s "good cause" & date aft 1/1/80



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A.L.R. Library

A.L.R. Index, Disabled Persons

A.L.R. Index, Social Security

Effect of Other Disability Determination on Social Security Administration Disability Determination, 191 A.L.R. Fed. 411

Sufficiency of Evidence When Evaluating Mental Impairment in Social Security Disability Case Under 20 C.F.R. § 404.1520a, 166 A.L.R. Fed. 361

Standard and Sufficiency of Evidence When Evaluating Severity of Claimant's Pain in Social Security Disability Case Under § 3(a)(1) of Social Security Disability Benefits Reform Act of 1984, 42 U.S.C.A. § 423(d)(5)(A), 165 A.L.R. Fed. 203

Social security: right to disability benefits as affected by refusal to submit to, or cooperate in, medical or surgical treatment, 114 A.L.R. Fed. 141

When is claim sufficiently presented to Secretary of Health and Human Services to permit judicial review under § 205(g) of Social Security Act (42 U.S.C.A. § 405(g)), 99 A.L.R. Fed. 198

Social Security: Authority of Appeals Council to review issues not raised by claimant, 96 A.L.R. Fed. 66

What constitutes "colorable constitutional claim" to permit judicial review of final action taken by Secretary of Health and Human Services without hearing, 94 A.L.R. Fed. 773

Social Security: Applicability of medical improvement standard in determining continuing eligibility for disability benefits to "closed period" beneficiaries, 93 A.L.R. Fed. 161

Sua sponte reopening by Social Security Appeals Council of prior final administrative determination by Secretary of Health and Human Services, 92 A.L.R. Fed. 118

Provision of 42 U.S.C.A. § 405(g) making Secretary of Health and Human Services' findings of fact conclusive if supported by substantial evidence as applying to administrative law judge or Social Security Appeals Council, 90 A.L.R. Fed. 280

Social Security disability determinations: what is "severe" impairment under 20 CFR §§ 404.1520–404.1521, 80 A.L.R. Fed. 564

Mandamus, under 28 U.S.C.A. § 1361, to compel prompt hearing in appeal from denial of Social Security disability benefits, 47 A.L.R. Fed. 929

Judicial review of administrative determination involving medicare as precluded by 42 U.S.C.A. § 405(h), 43 A.L.R. Fed. 484

Chronic alcoholism or its effects as disability entitling claimant to period of disability or disability insurance benefits under §§ 216 and 223 of Social Security Act (42 U.S.C.A. §§ 416 and 423), 39 A.L.R. Fed. 182

Judicial review, under § 205(g) of Social Security Act (42 U.S.C.A. § 405(g)), of sufficiency of administrative findings as to failure of claimant to meet age requirements for old age benefits, 13 A.L.R. Fed. 416

Construction and application of 28 USC § 1391(e) providing for venue and process in civil actions against federal officers, employees, or agencies, 9 A.L.R. Fed. 719



Legal Encyclopedias

Am. Jur. 2d, Social Security and Medicare §§ 1478–1482

C.J.S., Social Security and Public Welfare §§ 82, 83



Treatises and Practice Aids

Federal Procedure, L. Ed., Social Security and Medicare §§ 71:674- 71:677.11

Schwartz, The Trial of a Social Security Disability Case § 18.03



Trial Strategy

"Total Disability" of Insured Attorney, 26 Am. Jur. Proof of Facts 2d 421

Inability to Engage in Substantial Gainful Activity—Social Security Act, 10 Am. Jur. Proof of Facts 2d 319

Security Hearings and Appeals in Disability Cases, 24 Am. Jur. Trials 699

Presenting Plaintiff's Case, 5 Am. Jur. Trials 611



Law Reviews and Other Periodicals

Fine, Agency Request for ''Voluntary'' Remand A Proposal for the Development of Judicial Standards, 28 Arizona State Law Journal 1079 (Winter 1996)

Gropman, Social Security, 1995 Det. Coll. L. Rev 773 (Summer 1995)

Honig, Survey of Social Security Law: A Retrenchment, 1990 Det. C.L. Rev. 435 (Summer 1990)


Section 2 Footnotes:
[FN1] 42 U.S.C.A. § 405(g).

[FN2] Abreu-Mercedes v. Chater, 928 F. Supp. 386, 51 Soc. Sec. Rep. Serv. 242, Unempl. Ins. Rep. (CCH) ¶15269B (S.D.N.Y. 1996).

[FN3] Effective March 31, 1995, the functions of the Secretary of Health and Human Services in social security cases were transferred to the Commissioner of Social Security pursuant to P.L. No. 103–296, the Social Security Independence and Program Improvements Act of 1994. For purposes of this annotation, references in cases to the Secretary of Heath and Human Services have been changed to references to the Commissioner of Social Security.

Section 3 Footnotes:
[FN4] See § 4 for contrary Sixth Circuit cases.

[FN5] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36–3.

Section 7[b] Footnotes:
[FN6] Dorland's Medical Dictionary 870 (26th ed. 1985).

Section 24[b] Footnotes:
[FN7] Dorland's Medical Dictionary 870 (26th ed. 1985).

Section 28[a] Footnotes:
[FN8] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36–3.

Section 41[a] Footnotes:
[FN9] A Homan's sign is defined as "discomfort behind the knee on forced dorsiflexion of the foot: a sign of thrombosis in the veins of the calf. Dorland's Medical Dictionary 1416–14127 (25th ed. 1974).

Section 48 Footnotes:
[FN10] Myasthenia gravis is an abnormal rapid fatigability of voluntary muscles and an equally and abnormally long period before recovery after rest where the voluntary muscle is rapidly and steadily weakened when it is used until a point of complete paralysis.

Section 56[e] Footnotes:
[FN11] This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36–3.

Section 56[j] Footnotes:
[FN12] A Homan's sign is defined as "discomfort behind the knee on forced dorsiflexion of the foot: a sign of thrombosis in the veins of the calf. Dorland's Medical Dictionary 1416–1427 (25th ed. 1974).

Section 56[k] Footnotes:
[FN13] Myasthenia gravis is "an abnormal rapid fatigability of voluntary muscles and an equally and abnormally long period before recovery after rest. The voluntary muscle is rapidly and steadily weakened when it is used until a point of complete paralysis is reached." Schwab & H. Viets, "Myasthenia Gravis," in 4 Traumatic Medicine and Surgery for the Attorney 575.

Section 63[f] Footnotes:
[FN14] Senate Rep. 96–408, reprinted in 3 U.S. Code Cong. & Ad.News 1277, 1336–37 (1980).

[FN15] 125 Cong.Rec. 23383 (1979).

Section 77 Footnotes:
[FN16] H.R.Conf.Rep. No. 944, 96th Cong., 2d Sess. 59, reprinted in 1980 U.S.C.C.A.N. 1277, 1407.

152 A.L.R. Fed. 123