     Case: 19-50390      Document: 00515375397         Page: 1    Date Filed: 04/08/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                          United States Court of Appeals
                                                   Fifth Circuit

                                                                          FILED
                                                                        April 8, 2020
                                    No. 19-50390                       Lyle W. Cayce
                                  Summary Calendar                          Clerk


ROBERT EUGENE SCHULER,

               Plaintiff – Appellant.


ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,

               Defendant – Appellee


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 7:18-CV-47


Before CLEMENT, ELROD, and OLDHAM, Circuit Judges.
PER CURIAM:*
       This is a Social Security benefits dispute. Robert Schuler began
collecting Social Security benefits in 2007. In 2012, he received a letter from
the Social Security Administration (“SSA”) that informed him that a mistake
had been made in calculating his wages in 2007. His former employer—Flint
Hills Resources, LP—had filed a Corrected Wage and Tax Statement (W-2c),
which indicated that Schuler earned less in 2007 than the SSA originally
believed. Because of this mistake, the SSA told him that it had overpaid him
$54 and his future benefits would be reduced. Believing that the


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5 TH
CIR. R. 47.5.4.
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                                  No. 19-50390
documentation relied on by the SSA was mistaken, Schuler worked his way
through the SSA’s review process. In 2015, an ALJ reviewed his claim. The
ALJ expressly determined that Flint’s W-2c was “on its face, completely valid.”
Moreover, a letter from Flint casting doubt on the W-2c did not sufficiently
undermine it. Thus, the ALJ found that Schuler “failed to establish that the
W-2c . . . [was] invalid or contain[ed] incorrect information.” Three years later,
the Appeals Council denied review, making the SSA’s decision final.
      During proceedings in the district court, Schuler provided the court with
a new W-2c that Flint sent him in 2018. Schuler had requested the document
in a 2013 letter, but Flint did not respond until 2018. Schuler claimed this new
W-2c showed he was right all along. But the district court declined to remand
Schuler’s case back to the SSA to consider the new W-2c because the court
determined that the new W-2c was insufficient to merit such an action. Schuler
appealed.
      When we consider appeals from the SSA, we do not review new evidence.
Instead, when new evidence has been raised, “our review . . . is limited to
determining whether to remand for the consideration of the newly presented
evidence.” Haywood v. Sullivan, 888 F.2d 1463, 1471 (5th Cir. 1989). Remand
is only appropriate, however, when the evidence is “new,” “material,” and
“there is good cause for the failure to incorporate such evidence into the record
in a prior [SSA] proceeding.” 42 U.S.C. § 405(g); Haywood, 888 F.2d at 1471.
We review the district court’s decision on new evidence for an abuse of
discretion. Hunter v. Astrue, 283 Fed. Appx. 261, 262 (5th Cir. 2008).
      It is undisputed that the corrected W-2c from Flint is new. And the SSA
barely contests Schuler’s good cause for submitting the evidence late. After all,
Schuler only received Flint’s reply to his 2013 request for the document in
2018. He thus “had a legitimate reason why this evidence was not produced
earlier.” Ripley v. Chater, 67 F.3d 552, 556 (5th Cir. 1995).
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                                         No. 19-50390
       The only real dispute is whether the new W-2c is material. We hold that
it is. For evidence to be material, there must be a “reasonable possibility that
it would have changed the outcome of the [SSA’s] determination.” Latham v.
Shalala, 36 F.3d 482, 483 (5th Cir. 1994) (quoting Chaney v. Schweiker, 659
F.2d 676, 679 (5th Cir. 1981)). Here, the new W-2c clearly would have. The ALJ
held that Schuler did not provide enough evidence to prove that the old W-2c
contained “incorrect information.” Now, Flint has prepared a new W-2c that
indicates the old W-2c indeed had incorrect information. This “new evidence
provides an objective basis” for Schuler’s claim to the SSA that it changed his
benefits incorrectly. Ripley, 67 F.3d at 555. And, on appeal, the SSA even
concedes that the new W-2c has led them to update its own records.
Accordingly, there is no doubt that there is at least “a reasonable possibility”
the ALJ would have evaluated the old W-2c differently had he had this new
evidence. Latham, 36 F.3d at 483. The district court abused its discretion in
holding otherwise.†
       Since the new W-2c is material and Schuler had good cause for not
submitting it earlier, we must remand so that the new evidence may be
considered by the SSA. Ripley, 67 F.3d at 558. So ordered.




       †  The district court also relied on Schuler’s failure to file proper procedures in
submitting this new evidence to the court. But the SSA does not raise this argument in their
brief, so any reliance on it has been forfeited. See, e.g., Satterfield & Pontikes Constr., Inc. v.
U.S. Fire Ins. Co., 898 F.3d 574, 584 (5th Cir. 2018) (“An argument that is not pressed in the
original brief is [forfeited] on appeal.”). Further, the SSA initially sought to dismiss this case
as moot. While the SSA has conceded that it updated its records, the SSA has not indicated
that it has restored Schuler’s benefits since the 2012 reduction—one of the forms of relief
Schuler seeks. Accordingly, this case is not moot. See Alvarez v. Smith, 558 U.S. 87, 92 (2009).
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