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SHARPE v. SULLIVAN

August 4, 1992

JOHN P. SHARPE, Plaintiff,
v.
LOUIS W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant.



The opinion of the court was delivered by: CAROL E. HECKMAN

 This matter was referred to the undersigned by the Hon. William M. Skretny, to hear and report, in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, I recommend that the district court grant Plaintiff's motion for remand and rehearing. The following constitutes the undersigned's proposed findings and recommendations for the disposition of the motion.

 FACTS

 Plaintiff was born on March 18, 1953. He has a high school education, and briefly studied air-conditioning and heating in college. In January of 1976, after service in the United States Air Force, he took a job at Carborundum Abrasives in Niagara-Wheatfield, New York. He worked there until September 17, 1986, when he injured his back on the job. He has not worked since (T. 30-33). *fn1"

 Plaintiff filed claims for disability insurance on April 8, 1988 and March 17, 1989, alleging disability due to his back injury (T. 68-70, 91-93, 113-18). The Secretary denied his applications initially and on reconsideration (T. 71-75, 94-95, 102-107). Plaintiff's appeal was also denied on reconsideration (T. 109-110). Plaintiff requested a hearing, which was held on May 24, 1990 before Administrative Law Judge ("ALJ") Simon J. Nash. Plaintiff appeared and testified, and was represented by counsel. In a decision dated July 24, 1990, ALJ Nash found that Plaintiff was not under a disability within the meaning of the Act (T. 9-18). The ALJ's decision became the final decision of the Secretary upon denial of Plaintiff's request for further review by letter dated March 27, 1991 (T. 4-5).

 Plaintiff filed this action on May 24, 1991, seeking review and reversal of the Secretary's decision. Item 1. The Secretary answered on July 23, 1991 (Item 2) and moved for judgment on the pleadings on December 9, 1991. Items 5, 6. Meanwhile, Plaintiff underwent surgery on his lumbar spine on September 12, 1991. Plaintiff now moves for remand so that the Secretary may consider the new evidence relating to his disability provided by the report of the surgical procedure as well as the subsequent reports and opinions of treating and non-treating physicians. Items 7, 8.

 DISCUSSION

 The Act provides that a court may remand the case to the Secretary to consider additional evidence "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." 42 U.S.C. § 405(g). The Second Circuit has held that, on a motion for remand, the claimant:

 Must show that the proffered evidence is

 (2) material, that is, both relevant to the claimant's condition during the time period for which benefits were denied and probative. The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the Secretary to decide claimant's application differently. Finally, claimant must show

 (3) good cause for her failure to present the evidence earlier.

 Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (quoting Szubak v. Secretary of Health and Human Servs., 745 F.2d 831, 833 (3rd Cir. 1984); citing Tolany v. Heckler, 756 F.2d 268, 272 (2d Cir. 1985); Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981); Cutler v. Weinberger, 516 F.2d 1282, 1285 (2d Cir. 1975)).

 The Tirado case was remanded to the district court for a determination as to whether medical reports generated after the claimant's administrative hearing met this triple standard for the introduction of new evidence. The district court held that since the new evidence tended to show that the claimant's disability had not ceased but was of a continuing nature, it was relevant to her disability claim. ...


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