IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-30203
Summary Calendar
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ALTON JONES,
Plaintiff-Appellant,
versus
SHIRLEY S. CHATER, Commissioner of
Social Security,
Defendant-Appellee.
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Appeal from the United States District Court for the
Middle District of Louisiana
(93 CV 896 BM1)
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(August 25, 1995)
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
I
Alton Jones filed an application for disability benefits and
supplemental income on January 17, 1992, alleging the onset of
disability from January 9, 1992, from a back and neck injury.
Jones, a fifty-one-year-old high school graduate with vocational
*
Local Rule 47.5 provides: "The publication of opinions
that have no precedential value and merely decide particular
cases on the basis of well-settled principles of law imposes
needless expense on the public and burdens on the legal
profession." Pursuant to that Rule, the court has determined
that this opinion should not be published.
training and work experience as an electrician, injured his back at
work in 1990. At that time, he also complained of pain in his left
knee. He returned to work, but injured his knee in 1991. He
complained of pain in his neck and back, as well as in his left
knee. He again returned to work, but the job was less active than
his past electrical work, and he stopped working in January 1992.
Jones also developed chest or heart pains in October 1992 for which
he used nitroglycerin pills for relief.
Jones's applications and their reconsideration were denied.
A hearing was conducted by an administrative law judge (ALJ) on
November 18, 1992. Jones testified about the extent of his pain
and the activities that he could do, given the fact of his pain.
He stated that he could not afford to purchase the prescribed pain-
relief medication and that he was taking Excedrin instead. Jones
was then receiving unemployment benefits, thus holding himself out
for hire as an electrician.
The ALJ found that Jones "met the disability insured status
requirement for disability insurance benefits . . . through
December 31, 1995," and that Jones "ha[d] not engaged in
substantial gainful activity since January 9, 1992." After
reviewing the medical evidence concerning Jones's back, left knee,
and chest pain, the ALJ found that this established Jones's medical
condition to be "severe degenerative changes in the cervical spine,
lumbar spine and left knee, and a history of a myocardial
infarction with angina." The ALJ noted that Jones's condition did
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not meet or equal a listed impairment as found in Appendix One of
the regulations and that the record did not indicate that Jones's
condition was disabling per se.
In determining whether Jones was capable of performing his
past relevant work as an electrician, the ALJ relied upon the
residual functional capacity assessment (RFC) from the spring of
1992 and the orthopedic evaluation from March 1992. The ALJ
analyzed Jones's complaints of pain and determined that these
complaints were not supported by the medical evidence and were not
credible to the extent that Jones testified. The ALJ found that
Jones could not perform his past relevant work. However, Jones had
the ability to perform the full range of light work. The ALJ
relied upon the Medical-Vocation Guidelines (the Grid) to find that
Jones was not disabled.
Jones requested review of this decision by the Appeals
Council, and he attached additional medical evidence of his medical
treatment subsequent to the hearing. This medical evidence
included the results of a lumbar myelogram and a CAT scan of the
lumbar spine that revealed "[d]iffuse annular disc bulge[s]" at the
L2-3 and L3-4 levels and a "[m]oderate diffuse annular disc
bulge . . . at the L4-5 level." The physician and the chiropractor
diagnosed "[d]isc degeneration, associated facet syndrome, and
radicular pain extending into the right lower extremities," and
they recommended physical therapy and a pain-relief medication,
Vicodin. See PHYSICIANS' DESK REFERENCE 1188-89 (46th ed. 1992)
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(indicating drug usage as "relief of moderate to moderately severe
pain"). The chiropractor, Dr. Robert Smith, opined that Jones was
completely disabled and could lift nothing heavier than one pound.
The Appeals Council upheld the ALJ's decision, concluding that the
new medical evidence was consistent with the ALJ's determination
and that the opinion of Dr. Smith was not supported by the medical
findings.
II
Jones filed suit in federal court seeking to overturn the
denial of disability benefits and supplemental income and offering
new evidence of his medical condition after the Appeals Council
decision. Cross motions for summary judgment were filed by the
parties. Jones asked in the alternative for a remand to the
Commissioner1 in the light of the new medical evidence (concerning
back surgery, a lumbar laminectomy, and discectomy). The
magistrate judge recommended summary judgment for the Commissioner,
including the conclusion that the new evidence was not material to
justify a remand.
Jones filed objections to the magistrate judge's
recommendation, and a letter written by Dr. Warren Williams, the
surgeon who performed the laminectomy. Williams opined that Jones
1
Pursuant to P.L. No. 103-296, the Social Security
Independence and Program Improvements Act of 1994, the function
of the Secretary of Health and Human Services in social security
cases was transferred to the Commissioner of Social Security
effective March 31, 1995.
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was permanently disabled and that the disability was a result of
the symptoms present as far back as 1990 and was an expression of
Jones's "ongoing chronic degenerative spine disorder." The
district court gave de novo review to the record, adopted the
magistrate judge's report and recommendation, and granted judgment
in favor of the Commissioner.
III
Jones argues that the district court erred in failing to
remand his case to the Commissioner for consideration of his new
medical evidence covering his lumbar laminectomy on October 22,
1993. He disagrees with the district court's characterization of
this evidence as not material. In order to remand to the
Commissioner, "the evidence must be (1) new, (2) material, and (3)
good cause shown for the failure to incorporate the evidence into
the record in a prior proceeding." Bradley v. Bowen, 809 F.2d
1054, 1058 (5th Cir. 1987); see 42 U.S.C. § 405(g).
"Materiality" implies that the evidence "relate[s] to the
time . . . for which benefits were denied, and that it not concern
evidence of a later-acquired disability or of the subsequent
deterioration of the previously nondisabling condition." Johnson
v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985) (internal quotations
and citation omitted). Moreover, "a remand to the [Commissioner]
is not justified if there is no reasonable possibility that it
would have changed the outcome of the [Commissioner]'s
determination." Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir.
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1981) (footnote omitted).
Jones's new evidence concerns his care under Dr. Williams,
beginning September 16, 1993, in which Williams concluded that
Jones was a candidate for surgery on October 11, 1993. Surgery,
the removal of a disc and the fusion of vertebrae, was performed on
October 22, eight days after the Appeals Council made a final
decision on disability. Moreover, Dr. Williams stated that his
decision to operate was based not just on the herniated disc, but
upon the symptoms experienced by Jones as far back as 1990
(medical evidence before the Appeals Council revealing that Jones
had moderately diffuse and diffuse disc bulges at three lumbar
areas in June 1993).
As noted by the ALJ, the record is rather scant on medical
opinion concerning Jones's ability to perform work activities. The
one RFC in the record is dated April 1992 and indicates that Jones
can lift up to fifty pounds, with frequent lifts up to twenty-five
pounds. The ALJ determined that Jones was not disabled because he
had the RFC for the full range of light work. In the light of
Jones's surgery and Dr. Williams's opinion that Jones is
permanently disabled, it is reasonably possible that this new
medical evidence would have changed this determination. See Latham
v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994).
The new evidence is material to the time in which disability
benefits were denied. Cf. Bradley, 809 F.2d 1058 (noting that the
new evidence related to claimant's condition more than three years
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after the alleged onset of disability). Jones had good cause for
failing to present this evidence earlier because the surgery
occurred eight days after the Commissioner's final decision. See
also Latham, 36 F.3d 482, 483 (5th Cir. 1994) (noting that
claimant's Department of Veterans Affairs Rating Decision of
disability was pending at the time of the social security benefits
process and that the decision was received after the Secretary's
final decision).
Therefore, we conclude that the district court erred in
failing to remand the case to the Commissioner for consideration of
this new evidence. See Latham, 36 F.3d at 483-84. We therefore
REVERSE the judgment of the district court and REMAND to the
district court with instructions to remand to the Commissioner for
further consideration not inconsistent with this opinion.
REVERSED and REMANDED.
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