FACTS
Booz is a 57-year-old male who until 1970 worked as a semi-skilled laborer. In 1971, he applied for disability insurance benefits alleging total disability caused by obstructive lung disease, ulcers and diabetes. In a January 3, 1973 opinion, the Administrative Law Judge (AU) found Booz capable of working based on medical and vocational expert testimony. Booz’s eligibility for disability insurance ran out on September 30, 1975.
On October 24, 1978, Booz renewed his application for benefits. He attempted to show, based on new medical tests that he was totally disabled from 1970 onward. The ALJ denied benefits in an October 20, 1979 opinion and again, after remand by the Appeals Council to consider the effect of certain regulatory changеs, the application was rejected in an October 11, 1980 decision. Booz then appealed unsuccessfully to the Social Security Appeals Council and to the district court. Booz timely appeals.
ANALYSIS
I. Burden of Proof and Application of the Medical-Vocational Guidelines
Booz contends that the Secretary had the burdеn of showing that he was employable, and that the ALJ misapplied the Medical-Vocational guidelines grid. Generally, once a claimant shows that he cannot perform his former work, the burden shifts to the agency to show that claimant can perform other jobs in the national economy.
Thompson v. Schweiker,
*1380
The ALJ found that Booz did not show any greater disability as of 1975, than he had shown in the 1973 hearing. This finding must be affirmed if supported by substantial evidence.
Thompson,
II. Motion for Remand Based on New Evidence
Booz contends that the case should be remanded to the Secretary for consideration of new еvidence under 42 U.S.C. § 405(g). The new evidence consists of a June 30, 1981 report by Dr. Herman C. Schoen. Drawing on 1971-72 and 1979-80 medical tests taken by Booz, Schoen concluded that Booz was “totally disabled from employment in 1975.” This report was not presented to the ALJ, but was before the district court. The magistrate’s recommendation, which was adopted by the district court, found Dr. Schoen’s report not material, because not probative of 1975 disability. The question of materiality of the new evidence is one of law reviewed de novo by this cоurt.
Goerg v. Schweiker,
For this court to order a remand, Booz must show “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) (emphasis added). Booz meets the “good cause” requirement. He is a man of limited financial means and was apparently unable to find a qualified medicаl specialist to review his records within the time allotted by the ALJ. Cf. Allen, at 1473. Upon obtaining Dr. Schoen’s report, he immediately submitted it to the district court.
Next, we must determine whether the Schoen report is “material.” In 1980, Congress amended 42 U.S.C. § 405(g) to add a materiality requirement. The purpose of the amendment was “at least in part to limit the court’s ability to remand cаses for consideration of new evidence.”
Ward v. Schweiker,
The Fifth Circuit has held that under the 1980 amendment, evidence is sufficiently material to require a remand, “only where there is a
reasonable possibility
thаt the new evidence would have changed the outcome of the Secretary’s determination had it been before him.”
Dorsey v. Heckler,
The test in the Fourth and Tenth Circuits is reminiscent of the standard under Fed.R.Civ.P. 60(b). Under this rule, a court may relieve a party from a final judgment and grant a new trial, where there is “newly discovered evidence.” For evidence to meet this requirement it must be shown that it would have affected the trial result.
Kentucky Fried Chicken Corp. v. Diversified Packaging Corp.,
We must now determine whether there is a reasonable possibility that Dr. Sehoen’s report would have changed the outcome of the present case. We hold that there is such a reasonable possibility. The ALJ acknowledged in his decision of October 11, 1980, that it is possible that Booz became disabled prior to 1975. Moreover, the agency medical advisor, Dr. Harry Ma-min, testified that he could not make а determination as to Booz’s 1975 status “based on the medical evidence of record.” Implicit in this statement is the possibility that other evidence, such as Schoen’s detailed report, might рermit a doctor to make a retroactive 1975 status determination. Dr. Schoen’s report did not come before the ALJ, nor could it have been considered by Dr. Mamin.
We аlso note that a remand in the case at bar is consistent with the mandate of the Social Security Appeals Council. In its remand to the ALJ, the Council stated: “Because of the
lack of medical evidence
for ... 1972 and September 1978, the administrative law judge may wish to obtain additional testimony from a medical advisor regarding the claimant’s condition as of September 30, 1975,” (emphasis added). The ALJ declined to obtain such evidence, but gave Booz an opportunity to submit medical testimony. As already noted, Booz was apparently unable to avail himself of this opportunity within the time allotted. “In Social Security eases the ALJ has a special duty to fully and fairly develop the record and to assure that ... claimant’s interеsts are considered.”
Brown v. Heckler,
On remand, the ALJ should consider Dr. Schoen’s report in the context of the entire evidence.
Dorsey,
REMANDED to the district court with instructions to remand to the Secretary for consideration of the Schoen report.