Hammond v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
May 17, 2005
Charles R. Fulbruge III
Clerk
In the
United States Court of Appeals
for the Fifth Circuit
_______________
m 04-20107
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KATHERINE E. HAMMOND,
Plaintiff-Appellant,
VERSUS
JO ANNE B. BARNHART,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Southern District of Texas
m H-02-CV-4171
______________________________
On Petition for Rehearing
Before DAVIS, SMITH, and DEMOSS,
Circuit Judges.
PER CURIAM:
IT IS ORDERED that the petition for re-
hearing is DENIED. We do, however, elect to
comment on two points raised in the petition.
In her petition for rehearing, Hammond
argues that Istre v. Apfel, 208 F.3d 517 (5th
Cir. 2000), stands for the proposition that the
good cause requirement applies only to cases
brought under sentence (6) of § 405(g), in
which new evidence is presented for the first
time in the district court. Although that
happens to be the procedural posture of this
case, we do not read the important holding of
the opinion in that way. Instead, Istre holds
that there are no permissible bases for remand

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other than under sentences (4) and (6) of §
405(g). The district court did not remand
here, so Istre is inapplicable. In other words,
Istre concerned the circumstances under which
a case may be remanded, not the circum-
stances under which it must be remanded.
Also in her petition for rehearing,
Hammond argues that “new evidence
submitted to the Appeals Council justifies
reversal.” Hammond indeed introduces
evidence that would have been material, had
the date of the hearing been later. We,
however, cannot deem evidence material
insofar as it details the alleged worsening of a
claimant’s condition after the date of the hear-
ing. This is not to say that we cannot consider
any evidence post-dating a hearing, but that
medical evidence must shed light on the
severity of a claimant’s medical condition
before the hearing.

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