1The ALJ decision reflects that claimant applied for and was 

denied only DIB under Title II.

UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF NEW HAMPSHIRE

Albert Ruben Kuperman

v. Civil No. 08-cv-0054-JD

Jo Anne B. Barnhart, Commissioner,

Social Security Administration

REPORT AND RECOMMENDATION

Pursuant to 42 U.S.C. § 405(g), pro se claimant, Albert

Ruben Kuperman, moves to reverse the Commissioner’s decision

denying his application for Disability Insurance Benefits (“DIB”)

under Title II of the Social Security Act (the “Act”), 42 U.S.C.

§ 423, and Supplemental Security Income Benefits (“SSI”) under

Title XVI of the Act, 42 U.S.C. §§ 1381-1383c (document nos. 1

and 6-9).1 In support of his motion, claimant states that the

Commissioner and the Administrative Law Judge (“ALJ”) failed to

consider new and material medical evidence pertaining to his

physical and psychological conditions. Accordingly, I construe

his motion as a request for remand pursuant to sentence six of 42

U.S.C. § 405(g)(permitting a district court to remand a case to

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2The court notes that claimant is not entitled to disability

insurance benefits for the period of his incarceration. See 42

U.S.C. § 402(x)(1)(A). Because I recommend that claimant’s

motion be denied on other grounds, this issue is not addressed.

3Although claimant further claims to have filed an application

for supplemental security income, the ALJ decision indicates that

claimant sought only disability insurance benefits. 

2

the Commissioner of Social Security for further action upon a

showing that there is new evidence which is material and that

there is good cause for failure to submit the evidence at the

administrative level). For the reasons stated below, I recommend

that claimant’s motion be denied. 

Factual Background

Claimant is an inmate at the New Hampshire State Prison in

Concord, New Hampshire. The record reveals that he has been

continuously incarcerated from January 2004 to the present.2

This action stems from claimant’s application for disability

insurance benefits and supplemental security income3, filed on

August 8, 2005, alleging that he had been unable to work since

November 7, 2003 due to his disability. His complaints of

physical disability included a history of congenital heart

disease, cardiac arrhythmia and atrial fibrillation. His

complaints of psychological disability included anxiety,

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depression, difficulties in sleeping and difficulties in social

functioning. Claimant’s application was denied at the initial

level of review on January 26, 2004. Because the initial denial

was not appealed, it became the final decision of the agency as

to claimant’s disability through January 26, 2004.

I. ALJ Decision

Claimant subsequently sought de novo review before an

Administrative Law Judge (“ALJ”). He appeared and testified

before an ALJ at an administrative hearing via video conference

held on February 2, 2007 in Concord, New Hampshire. On March 22,

2007, the ALJ issued an order in which he determined, that from

the date after the initial denial was issued, January 27, 2004,

through the date claimant was last insured for benefits, June 30,

2006, claimant was not disabled within the meaning of the Act. 

Specifically, he found that claimant retained the residual

functional capacity to perform exertional and nonexertional

requirements of light work with a minimum amount of social

interaction.

In reaching this decision, the ALJ employed the mandatory

five-step sequential evaluation process described in 20 C.F.R.

§ 404.1520. At the first step, he determined that claimant had

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2 “RFC is what an individual can still do despite his or her

functional limitations. RFC is an administrative assessment of

the extent to which an individual’s medically determinable

impairment(s), including any related symptoms, such as pain, may

cause physical or mental limitations or restrictions that may

affect his or her capacity to do work-related physical and mental

activities. Ordinarily, RFC is the individual’s maximum

remaining ability to do sustained work activities in an ordinary

work setting on a regular and continuing basis, and the RFC

assessment must include a discussion of the individual’s

abilities on that basis.” Social Security Ruling, Policy

Interpretation Ruling Titles II and XVI: Assessing Residual

Functional Capacity in Initial Claims, SSR 96-8p, 1996 WL 374184

at *2 (July 2, 1996) (citation omitted). 

4

not been engaged in substantial gainful employment since January

27, 2004, and at the second step he determined that claimant

suffered from severe impairments including cardiac arrhythmia and

a personality disorder. At the third step, the ALJ determined

that claimant’s impairment did not meet or medically equal one of

the impairments listed in Part 404, Subpart P, Appendix 1 of the

regulations. Consequently, he could not rely solely upon medical

evidence to determine claimant’s eligibility for disability

benefits but, rather, had to consider claimant’s residual

functional capacity (“RFC”) as it related to his past relevant

work as well as other work which existed in the national economy

in significant numbers.4 

The ALJ concluded that claimant retained the RFC to perform

the exertional and nonexertional demands of light work with

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minimum social interaction. He further noted that claimant had

no functional limitations, except for moderate limitations in

social functioning and mild difficulties in maintaining

concentration, persistence or pace. In light of those findings,

the ALJ concluded, at step four, that claimant’s impairments did

not prevent him from performing his past relevant work as a

supermarket cashier and that he was not “disabled,” as that term

is defined in the Act, through the date of his decision.

II. Subsequent Review

Claimant sought review of the ALJ’s decision before the

Appeals Council. On February 11, 2008, the Appeals Council

denied his request, thereby rendering the ALJ’s decision a final

decision of the Commissioner subject to judicial review. 

Claimant has not provided this Court with a copy of the decision

issued by the Appeals Council.

Claimant now brings the instant action, asserting that new

evidence should be considered by the Commissioner and the ALJ in

re-evaluating his eligibility for disability insurance benefits

and supplemental security income. Claimant does not challenge

the ALJ’s decision that substantial evidence existed in the

record as of March 22, 2007 to support the determination that he

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was not disabled at any time prior to and through the date of the

ALJ’s decision. Accordingly, I construe his motion as a request

for remand pursuant to sentence six of 42 U.S.C. § 405(g). 

Process has not been issued and the Commissioner has not been

served. The only administrative record provided is an expurgated

copy of the ALJ decision issued on March 22, 2007, which claimant

filed in a previous action before this Court (Kuperman v. Warden,

New Hampshire State Prison, 07-cv-00245-PB). 

Standard of Review

Construed liberally, claimant’s motion requests that this

matter be remanded so that the ALJ may reconsider his adverse

decision in light of a more complete and comprehensive record

that includes new and material evidence. The First Circuit has

identified two circumstances under which a social security matter

may be remanded based upon new evidence, absent the consent of

the Commissioner. See Skidds v. Barnhart, Civil No. 05-cv-383-

SM, 2006 WL 1428257 at *4 (D.N.H. May 24, 2006). First, a social

security matter may be remanded when new evidence is presented to

the Appeals Council and the council refuses to grant review based

upon an “egregiously mistaken ground.” Id. (citing Mills v.

Apfel, 244 F.3d 1, 5 (1st Cir. 2001)). Where the Appeals Council

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provides no detailed reason for its refusal to grant review, that

decision is “effectively unreviewable.” Mills, 244 F.3d at 6. 

In this case, claimant asserts that although he notified the

Appeals Council of the new evidence, it subsequently denied his

appeal. Because claimant has not provided a copy of the Appeals

Council’s decision, the record is silent as to the precise basis

of its denial. Claimant has not alleged that the decision by the

Appeals Council “rests on an explicit mistake of law or other

egregious error.” Mills, 244 F.3d at 5. Accordingly, at this

stage of preliminary review, remand does not appear to be

appropriate on this basis. 

Second, a social security matter may be remanded pursuant to

sentence six of 42 U.S.C. § 405(g). To be entitled to a remand

under sentence six, a claimant must demonstrate 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.” Id. See also Evangelista v. Secretary of

Health & Human Services, 826 F.2d 136, 139-43 (1st Cir. 1987). 

Evidence is “new” if it was not in existence or available to the

claimant at the time of the administrative proceeding. Sullivan

v. Finkelstein, 496 U.S. 617, 626 (1990). It is “material” if

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the ALJ might reasonably have rendered a different decision if it

had been presented to him. Evangelista, 826 F.2d at 140. See

also Woolf v. Shalala, 3 F.3d 1210, 1215 (8th Cir. 1993) (“To be

material, new evidence must be non-cumulative, relevant, and

probative of the claimant’s condition for the time period for

which benefits were denied, and there must be a reasonable

likelihood that it would have changed the [Commissioner’s]

determination.”) (citations omitted); Rufino v. Apfel, 2 F. Supp.

2d 479, 484-85 (S.D.N.Y. 1998) (“the Second Circuit has

identified a three-prong test that a [claimant] must meet to

satisfy these criteria: (1) the evidence is new and not merely

cumulative, (2) the evidence is material, meaning it is both

relevant to [claimant’s] condition during the time period covered

by the decision and it could have affected the decision had it

been presented earlier, and (3) there is good cause for not

having presented this new evidence earlier.”) (citation omitted

and internal punctuation omitted). 

Here, in seeking a remand based upon new and material

evidence, claimant relies upon four documents. The first is a

letter dated October 10, 2007 by Dr. Lando, allegedly advising

claimant to be seen by an endocrinologist and to have the

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following tests performed: “blood-work for total and free

testosterone, sex hormone binding and globulin (SHBG), and to

consider Prolactin levels.” The second is an X-ray performed by

Concord Hospital on January 11, 2008, allegedly indicating

“generalized pulmonary vascular congestion with elevation of the

cardiac apex.” The third is an alleged abnormal ECG performed by

Concord hospital on January 11, 2008, “indicating left

ventricular hypertrophy, ST & T abnormalities and early

precordial wave transition.” The fourth is a document not in

existence; claimant requests the Commissioner to “update” the

evaluation provided by Eric Mart, Ph. D. on April 19, 2004 and to

re-evaluate claimant’s psychological problems. 

The evidence at issue in this case is new as it postdates

the ALJ decision of March 22, 2007. It is not, however, 

“material” to the ALJ decision because it does not relate to the

time period at issue. See Hargis v. Sullivan, 945 F.2d 1482,

1493 (10th Cir. 1991)(holding that implicit in the materiality

requirement is that the proferred evidence relate to the time

period for which the benefits were denied.) Claimant’s

application for disability insurance benefits was denied at the

initial level of review on January 26, 2004. Because the initial

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denial was not appealed, it became the final decision of the

agency as to claimant’s disability through January 26, 2004. The

ALJ issued a decision on March 22, 2007. Therefore, the question

before the ALJ, and the question to which this Court’s review is

limited, is whether claimant was disabled between January 27,

2004 and March 22, 2007. See Beauclair v. Barnhart, 453 F. Supp.

2d 1259, 1269 (D. Kan. 2006). Because the evidence at issue

postdates the ALJ’s decision, it is not probative of claimant’s

condition for the time period for which benefits were denied. 

Nor has claimant advanced any reasons demonstrating a reasonable

likelihood that the evidence would have changed the

Commissioner’s determination. See Rufino, 2 F. Supp. 2d at 484-

85. Id. If claimant believes his condition has worsened since

the date of the ALJ decision, his proper course of action is to

initiate a new claim for benefits with the Social Security

Administration. See Beauclair, 453 F. Supp. 2d at 1269. In

light of the foregoing, I find that remand under sentence six of

42 U.S.C. § 405(g) is not appropriate. 

Conclusion

For the reasons stated above, I conclude that remand under

sentence six of 42 U.S.C. § 405(g) is not warranted and,

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therefore, recommend that claimant’s motion for remand (document

nos. 1 and 6-9) be denied. 

____________________________

James R. Muirhead

United States Magistrate Judge

Date: September 2, 2008

cc: Albert R. Kuperman, pro se

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