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Szubak v. Secretary of Health and Human Services

October 11, 1984


On Appeal from the United States District Court for the District of New Jersey



Per Curiam.

Catherine Szubak appeals from a district court's grant of summary judgment for the government in a review of a Social Security disability matter. We vacate and remand to afford the Secretary an opportunity to consider new evidence.


Appellant Szubak is a 44 year old divorced mother of two. She was born in the Ukraine and was interned for a year during World War II in the Nazi concentration camp at Auschwitz. After emigrating to the United States in 1950, she attended school through the tenth grade, and thereafter worked as a waitress in Jersey City New Jersey. In October 1981, Szubak filed an application for disability insurance benefits and supplemental security income benefits. She claimed disability because of visual impairment, polyneuritis, severe anxiety syndrome, and great pain. At the agency hearing, appellant offered the testimony of several treating physicians to substantiate her claims. The Administrative Law Judge (ALJ), in a decision affirmed by the Appeals Council in June 1983, found that Szubak's problems did not rise to the level of a "severe" impairment, the second step of the five-part disability evaluation. See 42 U.S.C. § 423(d)(2)(A) (1982).

Szubak sought review in the district court of the Secretary's decision denying benefits, pursuant to 42 U.S.C. § 405(g) (1982), alleging that the ALJ's findings were not based on substantial evidence. She argued in the alternative that five medical reports compiled after the Secretary's determination necessitated a remand for further consideration. The district court granted summary judgment for the Secretary and Szubak appeals.*fn1


The Social Security Act stated in part:

[The Court] may at any time order additional evidence to be taken before the Secretary, but only upon a showing 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 . . .

42 U.S.C. § 405(g) (1982).

As amended in 1980, § 405(g) now requires that to support a "new evidence" remand, the evidence must first be "new" and not merely cumulative of what is already in the record. E.g., Bomes v. Schweiker, 544 F. Supp. 72, 75-76 (D. Mass. 1982). Second, the evidence must be "material;" it must be relevant and probative. E.g., Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981). Beyond that, the materiality standard requires that there be a reasonable possibility that the new evidence would have changed the outcome of the Secretary's determination. Id.; see also Bomes, 544 F. Supp. at 76. An implicit materiality requirement is 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 the previously non-disabling condition. See Ward v. Schweiker, 686 F.2d 762, 765 (9th Cir. 1982). Finally the claimant must demonstrate good cause for not having incorporated the new evidence into the administrative record. E.g., Brown, 557 F. Supp. at 192.

We believe Szubak has made an adequate showing to justify a remand. The medical reports offered are clearly new in the sense that they were compiled after the Secretary's first decision, and therefore they could not have been presented at the hearing. See Ward, 686 F.2d at 764. Nor are the reports merely cumulative of evidence in the record. For example, they set forth appellant's personal history in greater depth, including facts that relate directly to her alleged psychiatric problems. App. at 12, 14, 17. The reports also appear to corroborate substantially appellant's subjective complaints of great pain. App. at 12, 15, 18.

Second, it cannot be said that there is no possibility that the five new medical reports would have changed the outcome of the Secretary's decision. As noted, the new reports, especially those of Drs. Latimer, Friedman, and Ahmad, appear to corroborate appellant's subjective complaints of pain. Such corroboration is entitled to great weight by the ALJ. Taybron v. Harris, 667 F.2d 412 (3d Cir. 1981). Regarding Szubak's vision problems, the ALJ found that the appellant had undergone "successful" eye surgery. Yet the new ophthamologist report suggests a 40% visual impairment of the right eye. While ...

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