Greeman Toomey is currently representing a seriously ill client who we will call Mr. E. Mr. E was born with type I diabetes, and at the time of his hearing before an Administrative Law Judge was in his mid-twenties, with diabetic neuropathy in his feet. Mr. E. was denied benefits by the Administrative Law Judge. His case is now pending before the Appeals Council (AC) in Falls Church, Virginia. Because of the nature of Mr. E’s medical deterioration post-hearing, his case is a perfect example of when evidence will be considered “new and material” by the AC.
The AC will consider evidence submitted to it if it is “new,” meaning pertaining to the period of time after your hearing with the Administrative Law Judge, and “material,” which is a vague standard, roughly meaning that the evidence relates back to the medical issues in your case and proves a significant change in your condition.
Mr. E was hospitalized for wounds in his feet and other complications of diabetes about three weeks after his hearing. The hospitalization lasted about two weeks. This evidence, which can be described as routine care for ongoing conditions of the same type he experienced prior to the hearing, would not normally be ideal evidence to submit to the AC.
Then Mr. E was readmitted to the hospital, again for complications with wounds in his feet. This time, the wounds in both his feet showed signs gangrene. Within four months of his hearing before the Administrative Law Judge, hospital staff had amputated Mr. E’s left leg below the knee. Within six months of the hearing, he was living in a rehabilitation center to learn to ambulate with only one leg. This evidence is “new,” as the gangrene infection and amputation happened after the hearing. Most importantly, it is extremely “material:” Mr. E’s amputation was caused by his type I diabetes and by his diabetic neuropathy, which was the major issue before the Administrative Law Judge, and the amputation has radically changed his medical situation. Evidence of Mr. E’s bilateral gangrene and left leg amputation was immediately submitted to the AC. Normally, in a case as drastic as this, we would expect that the AC would remand Mr. E’s case for an Administrative Law Judge to consider all the facts of his new medical condition.
Unfortunately, Mr. E’s story does not stop there. Hospital staff determined that the gas gangrene in Mr. E’s remaining right foot could not be controlled. Seven months after his hearing and three months after his first amputation, Mr. E’s right foot was amputated. He remains hospitalized, and complications continue. Doctors are indicating that a further amputation of Mr. E’s right leg will be required from the knee down, as soon as his situation is stable. He is now a double amputee, and presumably disabled under Section 1.05B of the Listing of Impairments. Evidence of this second amputation is obviously both “new” and “material” to the AC. Moreover, Mr. E’s medical situation has changed so radically since his hearing with the Administrative Law Judge only seven months ago that we would expect the AC to issue a favorable decision in his case, instead of remanding for further proceedings.
