* Local Rule 47.5 provides: "The publication of opinions

that have no precedential value and merely decide particular

cases on the basis of well-settled principles of law imposes

needless expense on the public and burdens on the legal

profession." Pursuant to that Rule, the court has determined

that this opinion should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 95-30203

Summary Calendar

_____________________

ALTON JONES,

Plaintiff-Appellant,

versus

SHIRLEY S. CHATER, Commissioner of

Social Security,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the

Middle District of Louisiana

(93 CV 896 BM1)

_________________________________________________________________ (August 25, 1995)

Before JOLLY, JONES, and STEWART, Circuit Judges.

PER CURIAM: *

I

Alton Jones filed an application for disability benefits and

supplemental income on January 17, 1992, alleging the onset of

disability from January 9, 1992, from a back and neck injury.

Jon es, a fifty-one-year-old high school graduate with vocational-2-

training and work experience as an electrician, injured his back at

work in 1990. At that time, he also complained of pain in his left

knee. He returned to work, but injured his knee in 1991. He

complained of pain in his neck and back, as well as in his left

knee. He again returned to work, but the job was less active than

his past electrical work, and he stopped working in January 1992.

Jones also developed chest or heart pains in October 1992 for which

he used nitroglycerin pills for relief.

Jones's applications and their reconsideration were denied.

A hearing was conducted by an administrative law judge (ALJ) on

November 18, 1992. Jones testified about the extent of his pain

and t he activities that he could do, given the fact of his pain.

He stated that he could not afford to purchase the prescribed painrelief medication and that he was taking Excedrin instead. Jones

was then receiving unemployment benefits, thus holding himself out

for hire as an electrician.

The ALJ found that Jones "met the disability insur ed status

requirement for disability insur ance benefits . . . through

December 31, 1995," and that Jones "ha[d] not engaged in

s ubstantial gainful activity since January 9, 1992." After

reviewing the medical evidence concerning Jones's back, left knee,

and chest pain, the ALJ found that this established Jones's medical

condition to be "severe degenerative changes in the cervical spine,

lumbar spine and left knee, and a history of a myocardial

infarction with angina." The ALJ noted that Jones's condition did-3-

not meet or equal a listed impairment as found in Appendix One of

the regulations and that the record did not indicate that Jones's

condition was disabling per se.

In de termining whether Jones was capable of performing his

past relevant work as an electrician, the ALJ relied upon the

residual functional capacity assessment (RFC) from the spring of

1992 and the orthopedic evaluation from March 1992. The ALJ

analyzed Jones's complaints of pain and determined that these

complaints were not supported by the medical evidence and were not

credible to the extent that Jones testified. T he ALJ found t hat

Jones could not perform his past relevant work. However, Jones had

the ability to perform the full range of light work. The ALJ

relied upon the Medical-Vocation Guidelines (the Grid) to find that

Jones was not disabled.

Jones requested review of this deci sion by the Appeals

Council, and he attached additional medical evidence of his medical

treatment subsequent to the hearing. This medical evidence

included the results of a lum bar myelogram and a CAT scan of the

lumbar spine that revealed "[d]iffuse annular disc bulge[s]" at the

L2-3 and L3-4 levels and a "[m]oderate diffuse annular disc

bulge

. . . at the L4-5 level." The physician and the chiropractor

diagnosed "[d]isc degeneration, associated facet syndrome, and

radicular pain extending into the right lower extremities," and

they recommended physical therapy a nd a pain-relief medication,

Vicodin. S ee P HYSICIANS ' D ESK R EFERENCE 1188-89 (46th ed. 1992)1 Pursuant to P.L. No. 103-296, the Social Security

Independence and Program Improvements Act of 1994, the function

of the Secretary of Health and Human Services in social security

cases was transferred to the Commissioner of Social Security

effective March 31, 1995.

-4- (indicating drug usage as "relief of moderate to moderately severe

pain"). The chiropractor, Dr. Robert Smith, opined that Jones was

completely disabled and could lift nothing heavier than one pound.

The Appeals Council upheld the ALJ's decision, concluding that the

new medic al evidence was consistent with the ALJ's determination

and that the opinion of Dr. Smith was not supported by the medical

findings.

II

Jones filed suit in federal court seeking to overturn the

denial of disability benefits and supplemental income and offering

new evidence of his medical condition after the Appeals Council

decision. Cross motions for summary judgment were filed by the

parties. Jones asked in the alternative for a remand to the

Commissioner 1 in the light of the new medical evidence (concerning

back surgery, a lumbar laminectomy, and discectomy). The

magistrate judge recommended summary judgment for the Commissioner,

including the conclusion that the new evidence was not material to

justify a remand.

Jones filed objections to the magistrate judge's

recommendation, and a letter written by Dr. Warren Williams, the

surgeon who performed the laminectomy. Williams opined that Jones-5-

was permanently disabled and that the disability was a result of

the symptoms present as far back as 1990 and was an expression of

Jones's "ongoing chronic degenerative spine disorder." The

district court gave de novo review to the record, adopted the

magistrate judge's report and recommendation, and granted judgment

in favor of the Commissioner.

III

Jones argues that the district court erred in failing to

remand his case to the Commissioner for consideration of his new

medical evidence cove ring his lumbar laminectomy on October 22,

1993. He disagrees with the district court's characterization of

this evidence as not ma terial. In order to remand to the

Commissioner, "the evidence must be (1) new, (2) material, and (3)

good cause shown for the failure to incorporate the evidence into

the record in a prior proceeding." B radley v. Bo wen , 809 F.2d

1054, 1058 (5th Cir. 1987); see 42 U.S.C. § 405(g).

"Materiali ty" implies that the evidence "relate[s] to the

time

. . . for which benefits were denied, and that it not concern

evidence of a later-acquired disa bility or of the subsequent

deterioration of the previously nondisabling condition." Johnson

v. Heckler

, 767 F.2d 180, 183 (5th Cir. 1985) (internal quotations

and citation omitted). Moreover, "a remand to the [Commissioner]

is not justified if there is no reasonable possibility that it

would have change d the outcome of the [Commissioner]'s

determination." Chaney v. Schweiker , 659 F.2d 676, 679 (5th Cir.-6-

1981) (footnote omitted).

Jones's new evidence concerns his car e under Dr. Williams,

beginning September 16, 199 3, in which Williams concluded that

Jones was a candidate for surgery on October 11, 1993. Surgery,

the removal of a disc and the fusion of vertebrae, was performed on

October 22, eight days after the Appeals Council made a final

decision on disability. Moreover, Dr. Williams stated that his

decision to operate was based not just on the herniated disc, but

upon the symptoms experienced by Jones as far back as 1990

(medical evidence before the Appeals Council revealing that Jones

had moderately diffuse and diffuse disc bulges at three lumbar

areas in June 1993).

As noted by the ALJ, the record is rather scant on medical

opinion concerning Jones's ability to perform work activities. The

one RFC in the record is dated April 1992 and indicates that Jones

can lift up to fifty pounds, with frequent lifts up to twenty-five

pounds. The ALJ determined that Jones was not disabled because he

had the RFC for the full range of light work. In the light of

Jones's surgery and Dr. W illiams's opinion that Jones is

permanently disabled, it is reasonably possible that this new

medical evidence would have changed this determination. S ee Latham

v. Shalala , 36 F.3d 482, 483 (5th Cir. 1994).

The new evidence is material to the time in which disability

benefits were denied. C f. Bradley

, 809 F.2d 1058 (noting that the

new evidence related to claimant's condition more than three years-7-

after the alleged onset of disability). Jones had good cause for

failing to pr esent this evidence earlier because the surgery

occurred eight days after the Commissioner's final decision. See

also Latham

, 36 F.3d 482, 483 (5th Cir. 1994) (noting that

claimant's De partment of Veterans Affairs Rating Decision of

disability was pending at the time of the social security benefits

process and that the decision was received after the Secretary's

final decision).

The refore, we conclude that the district court erred in

failing to remand the case to the Commissioner for consideration of

this new evidence. S ee Latham

, 3 6 F.3d at 483-84. We therefore

REVERSE the judgment of the district court and REMAND to the

district court with instructions to remand to the Commissioner for

further consideration not inconsistent with this opinion.

REVERSED and REMANDED.