No. 1949, New and Material Evidence, U.S. District Court Remand

As published in Volume 34, No. 11, November 2012 edition of the Social Security Forum of the National Organization of Social Security Claimants’ Representatives (NOSSCR).

The Federal district court remanded under sentence six of 42 U.S.C. Section 405(g) for consideration of new and material evidence. The plaintiff had back surgery less than four months after the date of the ALJ’s decision. The Commissioner argued that the evidence was not material because it was evidence of new symptoms or a worsening of the condition and thus did not relate to the period before the date of the ALJ’s decision, warranting a new application. The court disagreed: “Because the surgery appears to closely relate to the treatment plaintiff was receiving prior to the ALJ’s decision, we find that is new and material objective evidence that is related to the plaintiff’s original DIB application. Therefore, the ALJ should consider this new and material evidence on remand.” The plaintiff was represented by John E. Horn, of Horn & Kelley, PC Attorneys at Law.