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

                                                                            FILED
                                                                           June 24, 2008

                                     No. 07-20608                     Charles R. Fulbruge III
                                   Summary Calendar                           Clerk


EVERETT DOUGLAS HUNTER, (CHARLES C HUNTER, as the Personal
Representative of Appellant, Everett Douglas Hunter, for substitution in the
place and stead of the Appellant Everett Douglas Hunter, deceased)

                                                  Plaintiff-Appellant
v.

MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY

                                                  Defendant-Appellee



                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:06-cv-01474


Before HIGGINBOTHAM, BARKSDALE, and HAYNES, Circuit Judges.
PER CURIAM:*
       Everett Hunter filed an application for disability and supplemental social
security benefits with the Social Security Administration, alleging that he
suffered from back injuries and depression.                   On June 25, 2001, an
Administrative Law Judge found Hunter was disabled, but also recommended
Hunter submit to a medical examination within eighteen months to check for


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
                                     No. 07-20608

any improvement in his condition.           Upon review, it was determined that
Hunter’s disability ceased on April 1, 2003. Hunter requested reconsideration,
and a disability officer concluded that he was no longer disabled. Hunter
requested and received a hearing before an ALJ. On November 21, 2005, the
ALJ handed down its decision, concluding that Hunter was no longer disabled
as of April 1, 2003. On March 15, 2006, the Appeals Council denied Hunter’s
request for review.
      Hunter appealed pursuant to 42 U.S.C. § 405(g). The district court
referred the case to a magistrate judge. Hunter filed a motion for summary
judgment or remand based on newly discovered evidence. The new evidence
was a cancer diagnosis; following exploratory surgery on September 26, 2006,
Hunter was diagnosed as having pancreatic cancer, liver metastasis, obstructive
jaundice, and possible obstructive duodenum.1 The Commissioner also moved
for summary judgment. The magistrate recommended affirming the ALJ’s
determination, and further concluded that there was no basis for remand
because Hunter’s new evidence was “immaterial to the appropriate time period.”
Hunter timely objected, and the district court conducted a de novo review. The
district court adopted the magistrate’s recommendations, and accordingly denied
Hunter’s motions and granted the Commissioner’s summary judgment motion.
      Hunter timely appealed; however, he succumbed to the cancer shortly
after filing his notice of appeal. Hunter’s personal representative is pursuing the
appeal. The only issue raised on appeal is whether the district court erred in
declining to remand the case to the Commissioner because of new evidence, a




      1
         According to the procedure report, Hunter’s pre-operation diagnosis was “probable
cancer of the pancreas.”

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“sentence six” remand.2 We review the district court’s remand decision for abuse
of discretion.3
       Section 405(g) provides, in pertinent part, that the courts “may at any time
order additional evidence to be taken before the Commissioner of Social Security,
but only 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.” Evidence that was “not in existence at the time of the
administrative and district court proceedings, meets the ‘new’ requirement for
remand to the Secretary.”4 “For new evidence to be material, there must exist
the ‘reasonable possibility that it would have changed the outcome of the
Secretary’s determination.’”5 “Implicit in the 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.’”6
       The Commissioner concedes that Hunter’s evidence is “new” and there is
good cause for Hunter’s having not raised it during the administrative
proceeding. The only question is whether Hunter’s new evidence is material.



       2
        Hunter’s personal representative noted that mootness could be an issue because
Hunter is now deceased. We are persuaded by the Government that there is no mootness
problem “due to the possible inheritability of underpayment of benefits.” See 20 C.F.R. §§
404.503(b), 416.543.
       3
        See Dudley v. Astrue, 246 Fed. Appx. 249, 250, 251 (5th Cir. 2007) (unpublished);
Bordelon v. Barnhart, 161 Fed. Appx. 348, 352 n. 12 (5th Cir. 2005) (unpublished); Allen v.
Schweiker, 642 F.2d 799, 802 (5th Cir. 1981); Salinas v. Schweiker, 662 F.2d 345, 347 n.2 (5th
Cir. 1981).
       4
           Haywood v. Sullivan, 888 F.2d 1463, 1471 (5th Cir. 1989).
       5
        Latham v. Shalala, 36 F.3d 482, 483 (5th Cir. 1994) (quoting Chaney v. Schweiker,
659 F.2d 676, 679 (5th Cir. 1981)).
       6
        Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985) (quoting Szubak v. Sec’y of
Health and Human Servs., 745 F.2d 831, 833 (3d Cir. 1984)); see also Latham, 36 F.3d at 483.

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                                        No. 07-20608

The magistrate determined that “the evidence is not material because it does not
relate to the time period for which benefits were denied.” We conclude that there
is no reversible error in this determination. Nothing in the medical evidence
submitted demonstrates that Hunter was suffering from pancreatic cancer
during the relevant time period.7 The physician’s report is largely silent about
how long Hunter had cancer, but it did relate that Hunter “had recent 15-pound
weight loss, early satiety and trouble with eating.” And the affidavit Hunter
attached to his summary judgment motion stated that “[r]ecently, I became
jaundiced and sought medical attention.” Hunter in essence only speculates that
the cancer may have existed long before it was discovered. Without some basis
to tie the pancreatic cancer to the period for which benefits were denied, we
cannot say that the district court abused its discretion in declining to remand
the case.
       AFFIRMED.




       7
         Compare Latham, 36 F.3d at 484 (finding a VA disability rating material where,
although the rating was “partly” based on medical evidence that post-dated the ALJ’s decision,
“the rating decision also is based on hospitalization records from 1990, records which tracked
Latham’s outpatient treatment for more than a year before the ALJ decision, and Latham’s
overall medical history”); Jones v. Chater, No. 95-30203, 1995 WL 581584, at *2 (5th Cir. Aug.
25, 1995) (unpublished) (the ALJ had found that the claimant suffered from “severe
degenerative changes in the cervical spine, lumbar spine” but that he was not disabled; this
court found new evidence material where the claimant had back surgery eight days after the
final administrative decision and the decision to operate was based in part on symptoms that
pre-dated the claimant’s application for benefits); Ripley v. Chater, 67 F.3d 552 (5th Cir. 1995)
(claimant filed for benefits based on back injuries and ALJ found claimant was not disabled;
this court found that MRI studies and surgery on claimant’s back that occurred after Appeals
Council refused to hear claimant’s appeal to be material new evidence; “This [scar] tissue
resulted from the initial surgery, in 1988, and was not a condition which developed after the
ALJ’s decision [in 1992]”); Perkins v. Shalala, No. 93-01940, 1994 WL 523788, at *3 (5th Cir.
Sept. 12, 1994) (unpublished) (claimant sought benefits claiming in part a disabling heart
problems; we concluded that new evidence was material because “Perkins has made a strong
showing that the ‘new’ evidence presented confirms that he suffered from a disabling heart
impairment at the time that the ALJ denied the benefits” (emphasis added)).


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