UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

FORT LAUDERDALE DIVISION

CASE NO. 20-61123-CIV-CANNON/HUNT

AGNES D. JOHN,

Plaintiff,

v.

KILOLO KIJAKAZI,

Acting Commissioner for Social Security,

Defendant.

_________________________________/

REPORT AND RECOMMENDATION

THIS CAUSE is before this Court on Plaintiff’s Opposed Motion to Remand. ECF 

No. 31. The Honorable Aileen M. Cannon, United States District Judge, referred this 

Matter to the undersigned United States Magistrate Judge for a Report and 

Recommendation. ECF No. 26; see also 28 U.S.C.A. § 636(b); S.D. Fla. L.R., Mag. R. 

1. Upon thorough review of the Motion, Response and Reply thereto, the entire case file,

the applicable law, and being otherwise fully advised in the premises, the undersigned 

respectfully RECOMMENDS that Plaintiff’s Motion to Remand, ECF No. 31, be DENIED.

BACKGROUND

Agnes John (“Plaintiff”) filed an application for a period of disability and Disability 

Insurance Benefits (“DIB”) on October 31, 2017, alleging disability beginning on June 12, 

2017. ECF No. 20 at 175–81. The Social Security Administration (“SSA”) denied her 

claim at the initial and reconsideration levels. ECF No. 20 at 100–02, 107–12. A hearing 

on Plaintiff’s disability claim took place on July 12, 2019. ECF No. 20 at 107–12. An 

Case 0:20-cv-61123-AMC Document 38 Entered on FLSD Docket 03/01/2022 Page 1 of 6
2

Administrative Law Judge (“ALJ”) issued an unfavorable decision denying Plaintiff’s claim. 

ECF No. 20 at 17–28. The Appeals Council denied Plaintiff’s request for review of the 

ALJ’s unfavorable decision. ECF No. 20 at 7–14. Plaintiff seeks judicial review of the 

ALJ’s decision. 

On February 2, 2022, Plaintiff filed the instant motion to remand pursuant to 

sentence six of 42 U.S.C. §405(g) due to new evidence presented for the first time in the 

District Court. ECF No. 31. Defendant filed a response in opposition to the remand and 

Plaintiff filed a reply. ECF Nos. 33, 36. 

DISCUSSION

Parties’ Arguments

Plaintiff asserts that there is new and material evidence entitling Plaintiff to a 

remand so that an ALJ can examine the evidence and render a new decision. 

Specifically, Plaintiff contends that a different ALJ issued a fully favorable decision on 

January 6, 2022, which found that Plaintiff was disabled as of August 9, 2019, two days 

after the ALJ in this case rendered her unfavorable decision dated August 7, 2019. 

Plaintiff argues that this favorable decision is new, non-cumulative, and material evidence

as there is a reasonable possibility that such evidence would change the administrative 

outcome of this case. 

The Commissioner responds that Plaintiff has failed to show that the favorable 

decision is material. The Commissioner contends that a subsequent fully favorable 

decision for a completely different time period is immaterial. The Commissioner points 

out that the subsequent decision found that Plaintiff was disabled as of August 9, 2019, 

her alleged onset date. However, the case before this Court has an alleged disability

Case 0:20-cv-61123-AMC Document 38 Entered on FLSD Docket 03/01/2022 Page 2 of 6
3

onset date of June 15, 2017, with the non-favorable decision being issued on August 7, 

2019. The Commissioner asserts that Plaintiff also failed to provide the evidence which 

the January 6, 2022, ALJ decision was based upon. The Commissioner further contends 

that, even if Plaintiff did provide such evidence, substantial evidence still supports the 

ALJ’s decision rendered in this case in 2019. Accordingly, the Commissioner argues that 

Plaintiff’s subsequent favorable decision does not raise a reasonable possibility of 

changing the 2019 decision, and thus the instant motion to remand should be denied. 

Plaintiff replies that the subsequent favorable decision does suggest that Plaintiff 

should have been found disabled by the ALJ in the 2019 unfavorable decision. 

Specifically, Plaintiff claims that the vocational expert’s testimony from December 13, 

2021, constitutes new and material evidence that conflicts with the vocational expert’s 

testimony in the unfavorable decision. 

Analysis

Sentence six of 42 U.S.C. § 405(g) provides as follows:

The court 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 . . . .

To be entitled to a sentence six remand, a claimant must “establish that: (1) there 

is new, noncumulative evidence; (2) the evidence is ‘material,’ that is, relevant and 

probative so that there is a reasonable possibility that it would change the administrative 

result, and (3) there is good cause for the failure to submit the evidence at the 

administrative level.” Hunter v. Soc. Sec. Admin., Comm’r, 808 F.3d 818, 821 (11th Cir. 

2015) (quoting Caulder v. Bowen, 791 F.2d 872, 877 (11th Cir. 1986)).

Case 0:20-cv-61123-AMC Document 38 Entered on FLSD Docket 03/01/2022 Page 3 of 6
4

The Eleventh Circuit has held that a subsequent favorable disability decision is not 

newly discovered evidence. Hunter, 808 F.3d at 821 (“A decision is not evidence any 

more than evidence is a decision.”). In fact, the Eleventh Circuit conclusively stated that 

the Ninth Circuit’s decision in Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010), a case 

Plaintiff relies upon for support to remand this action, is wrong. Id. at 822. “Nonetheless, 

the evidence supporting a subsequent favorable decision may constitute new and 

material evidence under § 405(g).” Medders v. Soc. Sec. Adm., Comm’r, No. 21-11702, 

2022 WL 222719, at *3 (11th Cir. Jan. 26, 2022). 

Plaintiff’s only explanation of the supporting evidence in the fully favorable decision 

is that the vocational expert in the subsequent hearing testified that Plaintiff did not have 

skills that can transfer to other occupations within her residual functional capacity. 

However, the undersigned does not find that the vocational expert’s testimony and the 

favorable decision qualify as new evidence. Further, the undersigned does not find the 

alleged “new evidence” to be so probative that there is a reasonable possibility such 

evidence, if considered, would change the administrative result here. 

Plaintiff asserts that the vocational expert in the unfavorable decision initially 

concluded that Plaintiff did not have any transferrable skills. However, Plaintiff alleges

that the vocational expert changed her testimony upon further questioning from the ALJ. 

Upon review, the undersigned notes that it does not appear from the testimony that the 

vocational expert changed a firmly-held opinion. Rather, the vocational expert simply 

responded to the ALJ’s questions to the best of her knowledge. Additionally, Plaintiff fails 

to explain whether the vocational expert in the favorable decision received similar 

questioning. Further, as Hunter explained, even faced with the same record different 

Case 0:20-cv-61123-AMC Document 38 Entered on FLSD Docket 03/01/2022 Page 4 of 6
5

ALJs could reach opposite conclusions, but both decisions could be supported by 

substantial evidence. See Hunter, 808 F.3d at 822 (“Because of that possibility, the mere 

existence of a later favorable decision by one ALJ does not undermine the validity of 

another ALJ's earlier unfavorable decision or the fact findings upon which it was 

premised.”). This same reasoning could be applied to vocational experts’ opinions. 

Finally, Plaintiff fails to cite any cases that support her position that a different vocational 

expert’s later testimony should be considered new evidence, or that such testimony can 

possibly change the administrative outcome of the first decision.

Therefore, the undersigned finds that Plaintiff’s subsequent favorable decision is 

not new evidence for the purposes of §405(g). Further, the undersigned does not find 

that the vocational expert’s testimony in the favorable decision is so probative that there 

is a reasonable possibility that it would change the administrative result. Thus, the 

undersigned recommends that Plaintiff’s Motion to Remand be DENIED.

RECOMMENDATION

For the reasons set forth above, the undersigned hereby RECOMMENDS that 

Plaintiff’s Motion to Remand be DENIED.

Within seven (7) days after being served with a copy of this Report and 

Recommendation, any party may serve and file written objections to any of the above 

findings and recommendations as provided by the Local Rules for this district. 28 U.S.C. 

§ 636(b)(1); S.D. Fla. Mag. R. 4(b). A response to any objection raised shall be filed 

within seven (7) days of the objection to this Report and Recommendation. The parties 

are hereby notified that a failure to timely object waives the right to challenge on appeal 

the district court’s order based on unobjected-to factual and legal conclusions contained 

Case 0:20-cv-61123-AMC Document 38 Entered on FLSD Docket 03/01/2022 Page 5 of 6
6

in this Report and Recommendation. 11th Cir. R. 3-1 (2016); see Thomas v. Arn, 474 

U.S. 140 (1985).

DONE and SUBMITTED at Fort Lauderdale, Florida, this 1st day of March 2022.

_____________________________________

PATRICK M. HUNT

UNITED STATES MAGISTRATE JUDGE

Copies furnished to:

The Honorable Aileen M. Cannon

All Counsel of Record

Case 0:20-cv-61123-AMC Document 38 Entered on FLSD Docket 03/01/2022 Page 6 of 6