McClesky v. Astrue, 606 F.3d 351 (7th Cir. 2010). · Go Syfert
McClesky v. Astrue, 606 F.3d 351 (7th Cir. 2010). Cases Citing This Book View Copy Cite
“we can't find any cases ruling on when an administrative law judge's refusal to consider new and material evidence first submitted after the hearing might be an abuse of discretion.”
54 citation events (54 in the last 25 years) across 17 distinct courts.
Strongest positive: WITHAM v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER (med, 2020-12-23)
Treatment trajectory · 2010 → 2026 · click a year to view as-of
2010 2018 2026
Top citers, strongest first. 41 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) WITHAM v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
D. Me. · 2020 · quote attribution · 1 verbatim quote · confidence high
we can't find any cases ruling on when an administrative law judge's refusal to consider new and material evidence first submitted after the hearing might be an abuse of discretion.
discussed Cited as authority (verbatim quote) Mitchell v. Berryhill (2×) also: Cited as authority (rule)
N.D. Ill. · 2019 · signal: see also · quote attribution · 1 verbatim quote · confidence high
t is proper for the claimant to submit further evidence after the hearing, provided this is done promptly.
discussed Cited as authority (rule) Pablo Nicolas Sotomayor Nacif v. Frank Bisignano, Commissioner of Social Security
M.D. Fla. · 2026 · confidence medium
Aug. 14, 2019) (unpublished) (finding the rebuttal evidence as an “unavoidable” circumstance for purposes of the 5-Day Rule); McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (explaining that the “submission and consideration of post-hearing evidence are common in social security disability cases . . . since the claimant has no clue to what the vocational expert will testify until the end of the hearing”).
cited Cited as authority (rule) Crites v. Bisignano
N.D. Ill. · 2025 · confidence medium
See, e.g., SSR 16-3p, 2017 WL 5180304 , at *9– 10; Murphy, 759 F.3d at 816 ; McClesky v. Astrue, 606 F.3d 351, 352 (7th Cir. 2010); Orienti v. Astrue, 958 F.Supp.2d 961, 977 (N.D.
cited Cited as authority (rule) Simmons v. O'Malley
S.D. Tex. · 2025 · confidence medium
McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010).
discussed Cited as authority (rule) Ruffins v. Bisignano
N.D. Ill. · 2025 · confidence medium
Courts and SSR 16-3p recognize a variety of reasons why individuals do not comply with or seek treatment in a manner consistent with their complaints, including lack of insurance, lack of access, inability to afford treatment, side effects, etc. See, e.g., Murphy, 759 F.3d at 816 (“There may be a reasonable explanation behind Murphy’s actions, such as she may not have been able to afford the treatment, further treatment would have been ineffective, or the treatment created intolerable side effects.”); McClesky v. Astrue, 606 F.3d 351, 352 (7th Cir. 2010); Orienti v. Astrue, 958 F.Supp.2d…
cited Cited as authority (rule) Flight v. O'Malley
D. Conn. · 2025 · confidence medium
Jan 23, 2015) (citing McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010)).
cited Cited as authority (rule) Heather Tutwiler v. Kilolo Kijakazi
7th Cir. · 2023 · confidence medium
McClesky v. Astrue, 606 F.3d 351, 353 (7th Cir. 2010) (finding ALJ’s analysis of credi- bility was inadequate).
discussed Cited as authority (rule) James Wischmann v. Kilolo Kijakazi
9th Cir. · 2023 · confidence medium
Although criticized as having many outdated job descriptions, see White, 44 F.4th at 835 , the Dictionary of Occupational Titles (DOT) is typically the starting point for VEs to identify the occupations relevant for each claimant’s residual functional capacities, see McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (describing DOT as “the Bible of vocational experts”); see also 20 C.F.R. §§ 404.1566 (d)(1), 416.966(d)(1).
discussed Cited as authority (rule) MUDIE v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
D. Me. · 2022 · confidence medium
The court, therefore, concluded that the plaintiff “failed to show good cause for the Court to order that this material be included.” Id. it will often have to be submitted after the hearing has been completed.” Patrick S., 2019 WL 3814283 , at *3 (citing SSR 96-9p n.8, 1996 WL 374185 and quoting McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010)).
discussed Cited as authority (rule) McDaniel v. Commissioner of Social Security
M.D. Fla. · 2021 · confidence medium
Aug. 14, 2019) (unpublished) (finding the rebuttal evidence as an “unavoidable” circumstance for purposes of the 5-Day Rule); McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (explaining that the “submission and consideration of post- hearing evidence are common in social security disability cases . . . since the claimant has no clue to what the vocational expert will testify until the end of the hearing”).7 The ALJ’s failure to consider the Heckman Report is not harmless error because Mr. Heckman’s opinions directly conflict with the VE’s testimony.
discussed Cited as authority (rule) Reisman v. Commissioner of Social Security
W.D.N.Y. · 2021 · confidence medium
A decision by an ALJ to exclude evidence under this provision is reviewed for abuse of discretion. cf., McClesky v. Astrue, 606 F.3d 351, 355 (7th Cir. 2010) (indicating that ALJ’s decision to exclude evidence is reviewed for abuse of discretion); see also, McCaskill v. Dep't of Health & Hum.
discussed Cited as authority (rule) BERRY v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER
D. Me. · 2020 · confidence medium
See SSR 96-9p, 1996 WL 374185 , at *9 n.8 (July 2, 1996) (“Whenever a VE is used, the [claimant] has the right to review and respond to VE evidence prior to the issuance of a decision.”); McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (noting that “the submission and consideration of post-hearing evidence are common in social security disability cases[,]” especially affidavits offered “to rebut vocational expert testimony which cannot be anticipated prior to hearing” (citation and internal quotation marks omitted)).
discussed Cited as authority (rule) Ritchie v. Berryhill
S.D.N.Y. · 2020 · confidence medium
In fact, post-hearing evidence is “commonly considered in social security disability cases.” Id. (citing McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir.2010)); see also Romero v. Heckler, 586 F. Supp. 840 (S.D.N.Y. 1984) (the evidence included a post-hearing consultive examination conducted at the request of the ALJ).
discussed Cited as authority (rule) Green v. Commissioner of Social Security
S.D. Ill. · 2020 · confidence medium
See, e.g., Hughes v. Astrue, 705 F.3d 276, 279 (7th Cir. 2013)(noting that “[c]haracteristically, and sanctionably, the government's brief violates the Chenery doctrine. . . .”); McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010)(stating that it is “improper for an agency's lawyer to defend its decision on a ground that the agency had not relied on in its decision. . . .”).
discussed Cited as authority (rule) Bodine v. Berryhill
E.D. Mo. · 2020 · confidence medium
Plaintiff asserts that “the response from the [medical expert] brought up issues and the need for earlier evidence that did not appear to be relevant to the case until this point in time.” [ECF No. 26 at 8] To the extent Plaintiff argues that Exhibit 27F contained admissible “rebuttal evidence,” the Court rejects this characterization. “[T]he submission and consideration of post- hearing evidence are common in social security disability cases,” especially evidence intended to rebut testimony, such as that of the vocational expert, that “cannot be anticipated prior to the hearing.…
discussed Cited as authority (rule) Moore v. Commissioner of Social Security
S.D. Ill. · 2020 · confidence medium
Hughes v. Astrue, 705 F.3d 276, 279 (7th Cir. 2013) (“Characteristically, and sanctionably, the government's brief violates the Chenery doctrine…..”); McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (It is “improper for an agency's lawyer to defend its decision on a ground that the agency had not relied on in its decision....”).
cited Cited as authority (rule) Cooke v. Saul
N.D. Ill. · 2019 · confidence medium
The DOT has been described as “the Bible of vocational experts.” McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010).
cited Cited as authority (rule) Heine v. Saul
E.D. Wis. · 2019 · confidence medium
(ECF No. 20 at 17 (citing McClesky v. Astrue, 606 F.3d 351, 355 (7th Cir. 2010).) The court finds it unnecessary to resolve this question.
discussed Cited as authority (rule) Barksdale v. Commissioner of Social Security
S.D. Ill. · 2019 · confidence medium
Hughes v. Astrue, 705 F.3d 276, 279 (7th Cir. 2013) (“Characteristically, and sanctionably, the government's brief violates the Chenery doctrine…..”); McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (It is “improper for an agency's lawyer to defend its decision on a ground that the agency had not relied on in its decision....”).
discussed Cited as authority (rule) Whitney v. Social Security Administration
D. Mass. · 2019 · confidence medium
Here, an unavoidable circumstance beyond Whitney’s control prevented him from submitting the Meuse affidavit earlier “since the claimant has no clue to what the vocational expert will testify until the end of the hearing.” Palombo, 2018 WL 3118286 , at *5 (quoting McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010)).
discussed Cited as authority (rule) SHEA v. SOCIAL SECURITY ADMINISTRATION COMMISSIONER (2×)
D. Me. · 2019 · confidence medium
McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (citation omitted).
cited Cited as authority (rule) Crystal D. Kelly v. Andrew Saul, Commissioner, Social Security Administration
D.N.H. · 2019 · confidence medium
McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010)(citation omitted).
cited Cited as authority (rule) Kelly v. US Social Security Administration, Commissioner
D.N.H. · 2019 · confidence medium
McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010)(citation omitted).
cited Cited as authority (rule) Cardenas v. Berryhill
N.D. Ill. · 2018 · confidence medium
McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010); Haddock v. Apfel, 196 F.3d 1084, 1089-90 (10th Cir. 1999).
discussed Cited as authority (rule) Gayle Palombo v. Nancy A. Berryhill, Acting Commissioner of Social Security
D.N.H. · 2018 · confidence medium
By definition, rebuttal evidence of this kind could not have been submitted earlier, “since the claimant has no clue to what the vocational expert will testify until the end of the hearing.” McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (noting that “submission and consideration of post- hearing evidence are common in social security disability cases,” especially affidavits used “to rebut vocational ‘expert’ testimony which cannot be anticipated prior to hearing”).
discussed Cited as authority (rule) Stiles v. Berryhill
S.D. Ind. · 2017 · confidence medium
An ALJ’s decision whether to reopen a hearing to receive new and material evidence is discretionary, 20 C.F.R. § 404.944 , and is reviewed for abuse of discretion, McClesky v. Astrue, 606 F.3d 351, 355 (7th Cir. 2010).
discussed Cited as authority (rule) Randy Hanson v. Carolyn Colvin
7th Cir. · 2014 · confidence medium
See, e.g., Pierce v. Colvin, 739 F.3d 1046, 1050 (7th Cir.2014); Hughes v. Astrue, 705 F.3d 276, 279 (7th Cir.2013); Kastner v. Astrue, 697 F.3d 642, 648 (7th Cir.2012); Shauger v. Astrue, 675 F.3d 690, 697 (7th Cir.2012); Martinez v. Astrue, 630 F.3d 693, 698 (7th Cir.2011); Spiva v. Astrue, 628 F.3d 346, 348 (7th Cir.2010); Campbell v. Astrue, 627 F.3d 299, 307 (7th Cir.2010); Larson v. Astrue, 615 F.3d 744, 749 (7th Cir.2010); McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir.2010); Parker v. Astrue, 597 F.3d 920, 922 (7th Cir.2010).
cited Cited as authority (rule) Orienti v. Astrue
N.D. Ill. · 2013 · confidence medium
See Godbey v. Apfel, 238 F.3d 803, 809 (7th Cir.2000); McClesky v. Astrue, 606 F.3d 351, 352 (7th Cir.2010).
discussed Cited as authority (rule) Punzio v. Astrue
7th Cir. · 2011 · confidence medium
That is reason enough for us to reverse the judgment, see McClesky v. Astrue, 606 F.3d 351, 352-53 (7th Cir.2010); Genier v. Astrue, 606 F.3d 46, 50 (2d Cir.2010); Villano v. Astrue, 556 F.3d 558, 562-63 (7th Cir.2009) (per curiam), although another striking error of greater significance compels us to soldier on: The ALJ erred in rejecting Dr. Mahmood’s assessment of Punzio’s mental residual functional capacity.
discussed Cited as authority (rule) Marla Phillips v. Michael Astrue (2×) also: Cited "see"
7th Cir. · 2010 · confidence medium
See Spiva, No. 10‐2083, slip op. at 1‐2; McClesky v. Astrue, 606 F.3d 351, 352 (7th Cir. 2010); Parker v. Astrue, 597 F.3d 920 , 921‐22 (7th Cir. 2010).
discussed Cited as authority (rule) Phillips v. Astrue (2×) also: Cited "see"
7th Cir. · 2010 · confidence medium
See Spiva, 628 F.3d at 348 ; McClesky v. Astrue, 606 F.3d 351, 352 (7th Cir.2010); Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir.2010).
discussed Cited as authority (rule) Marla Phillips v. Michael Astrue (2×) also: Cited "see"
7th Cir. · 2010 · confidence medium
See Spiva, No. 10‐2083, slip op. at 1‐2; McClesky v. Astrue, 606 F.3d 351, 352 (7th Cir. 2010); Parker v. Astrue, 597 F.3d 920 , 921‐22 (7th Cir. 2010).
discussed Cited as authority (rule) Spiva v. Astrue
7th Cir. · 2010 · confidence medium
See also, e.g., Larson v. Astrue, 615 F.3d 744, 749, 751 (7th Cir. 2010) (misunderstanding of mental illness; Chenery violation); McClesky v. Astrue, 606 F.3d 351, 352, 354 (7th Cir.2010) (credibility boilerplate; Chenery violation); Kangail v. Barnhart, 454 F.3d 627, 629 (7th Cir.2006) (misunderstanding of mental illness); Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir.2006) (Chenery violation); Ryan v. Commissioner of Social Security, 528 F.3d 1194, 1199-1201 (9th Cir.2008) (misunderstanding of mental illness); Kohler v. Astrue, 546 F.3d 260, 268-69 (2d Cir.2008) (same); Haga v. Astrue, 482 …
cited Cited "see" Suhsen, Karl v. Saul, Andrew
W.D. Wis. · 2021 · signal: see · confidence high
See id. at 353 .
discussed Cited "see" Mattson v. Saul
N.D. Ill. · 2020 · signal: see · confidence high
See McClesky v. Astrue, 606 F.3d 351, 352 (7th Cir. 2010) (reversing where ALJ “evinced no recognition that [the claimant’s] psychiatric disorder might interfere with her ability to follow a proper regimen for alleviating her physical ailments”); see also Kangail v. Barnhart, 454 F.3d 627, 630-31 (7th Cir. 2006) (reversing where ALJ failed to consider impact of mental health on ability to follow through with treatment).
discussed Cited "see" Collins v. Berryhill
N.D. Ill. · 2018 · signal: see · confidence high
See McClesky v. Astrue, 606 F.3d 351, 353 (7th Cir. 2010) (explaining that the ALJ should consider why the claimant might not have been forthcoming about her substance abuse issues before considering it as evidence of lack of candor).
cited Cited "see" Donel Gully v. Carolyn Colvin
7th Cir. · 2014 · signal: see · confidence high
See McClesky v. Astrue, 606 F.3d 351, 353 (7th Cir. 2010).
cited Cited "see" Gully v. Colvin
7th Cir. · 2014 · signal: see · confidence high
See McClesky v. Astrue, 606 F.3d 351, 353 (7th Cir.2010).
discussed Cited "see, e.g." Jackson v. Saul
N.D. Ill. · 2022 · signal: see, e.g. · confidence medium
See, e.g., McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (finding it is “improper for an agency’s lawyer to defend its decision on a ground that the agency had not relied on in its decision”).
discussed Cited "see, e.g." Nankishore v. Saul
N.D. Ill. · 2022 · signal: see, e.g. · confidence medium
See, e.g., McClesky v. Astrue, 606 F.3d 351, 354 (7th Cir. 2010) (finding it is “improper for an agency’s lawyer to defend its decision on a ground that the agency had not relied on in its decision”).
Retrieving the full opinion text from the archive…
Denise L. McCLESKY, Plaintiff-Appellant,
v.
Michael J. ASTRUE, Commissioner of Social Security, Defendant-Appellee
09-2723.
Court of Appeals for the Seventh Circuit.
May 18, 2010.
606 F.3d 351
Frederick J. Daley, Jr., Marcie E. Gold-bloom (argued), Daley, Debofsky & Bryant, Chicago, IL, for Plaintiff-Appellant., Allen Duarte (argued), Social Security Administration, Office of the Regional Chief Counsel, Chicago, IL, for Defendant-Appellee.
Posner, Flaum, Williams.
Cited by 42 opinions  |  Published
POSNER, Circuit Judge.

Denise McClesky, age 41 at the time of the alleged onset of what she claims to be total disability, appeals from the district court’s affirmance of the Social Security Administration’s denial of her claim. It is uncontroversial that she suffers from major depression and has limited use of her fingers, hands, and arms because of numbness, weakness, and pain in these extremities and in her shoulders, as a result of a combination of fibromyalgia and thoracic outlet syndrome (compression of blood vessels or nerves in the region between the collarbone and the highest rib).

After the boilerplate recital (see Parker v. Astrue, 597 F.3d 920, 921-22 (7th Cir.2010)) that “based on the evidence, the claimant’s medically determinable impairments could reasonably be expected to produce the alleged symptoms, but the claimant’s statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely credible,” the administrative law judge began picking apart McClesky’s testimony, noting first that she “has not always pursued things that would elevate [sic — the judge meant ‘alleviate’] that distress.” In support of this statement the judge pointed out that McClesky had visited a doctor only once in more than two years. That was mistaken. Her visits to doctors and other medical practitioners were frequent, and though her lawyer argued without contradiction that her client could not afford even more frequent visits to doctors, the administrative law judge thought it significant that McClesky had once told “her then neurologist she did not like to take medication.” In fact she takes Advil and Tylenol, and while she refuses to take Neurontin (misspelled “Neurotin” in the administrative law judge’s opinion) (the trade name of Gabapentin), and psychotropic drugs, including Lexapro, these are powerful and expensive drugs that many people are reluctant to take or unable to afford. And Lexapro and other psychotropic drugs are for treatment of depression and other mental illnesses rather than, as the administrative law judge seems to have thought, for pain. Nor is it clear that McClesky can afford these drugs; she has no health insurance and, it seems, no income.

The administrative law judge remarked that “even though exercise has been beneficial to her, she does not always do the exercises.” (Who does?) The judge evinced no recognition that McClesky’s psychiatric disorder might interfere with her ability to follow a proper regimen for alleviating her physical ailments. Cf. Kangail v. Barnhart, 454 F.3d 627, 630-31 (7th Cir.2006).

The judge thought the fact that McClesky had attended college for a semester cast doubt on her claims of pain and weakness. But she testified without contradiction that fatigue and weakness were the reasons she dropped out after only one semester.

She had told doctors that she had quit a job at Wendy’s because it was too much for her, but testified — inconsistently in the view of the administrative law judge — that she had quit because she wasn’t earning enough. In fact she testified without contradiction that she quit after finding it physically impossible to work the number of hours at Wendy’s that she would have needed in order to earn a wage that would have enabled her to support herself.

[*353] The judge further doubted McClesky’s credibility because of mistaken statements that she made, such as that she had last used illegal drugs in 1983. In fact she had been consuming cocaine, including the crack form, until at least 2004. The judge said that her “lack of candor about her substance use decreases the credibility of her statements,” without considering the possibility that she had been afraid to admit to an official that she had been until recently (and perhaps still is) committing crimes. Granted, lack of candor on this subject reveals that McClesky is willing to lie about subjects in order to promote her self-interest. Maybe drugs are not the only subject on which she is concealing information. And a person who can afford cocaine might be able to afford prescription drugs, though narcotic drugs like Lexapro and Neurontin are expensive as we said and quite possibly more so than self-medicating with crack. If McClesky prefers unlawful drugs over their lawful counterparts for reasons other than cost, this could be a reason to deny her request for disability benefits. But there is no discussion of the issue in the administrative law judge’s opinion.

The judge grudgingly conceded that McClesky “cannot do repetitive hand motions on a frequent basis,” though she could do them “on an occasional basis.” In particular, he said, she can’t do a job that requires “reaching overhead” or frequent use of her hands or arms. And therefore, the judge concluded, McClesky cannot do any of her previous jobs “as a file clerk, light semi-skilled work; billing clerk, sedentary semi-skilled work; secretary, sedentary skilled work; and quality control worker (food tester ...), light unskilled work.”

So what kind of work can she do? A vocational expert, told her limitations by the administrative law judge, named only two jobs available in McClesky’s region (the Chicago metropolitan area) that she would be physically capable of doing: surveillance system monitor and telemarketer. Within a month after the hearing, however, and more than a year before the administrative law judge issued her decision, McClesky’s lawyer submitted to the judge a letter from another vocational expert certified to testify in social security disability cases, which states that all security guards and surveillance system monitors require a license from the Department of Homeland Security and that a person would need training to qualify for such a license.

This is implausible. The administrative law judge could have reopened the evidentiary record for a determination of whether the letter was accurate and if so whether McClesky could qualify for such a license (if it really is required), considering her physical and mental limitations. Instead the judge, when she got around to writing her opinion denying McClesky’s application for disability benefits, said that “although this assertion [that a surveillance system monitor would need a license, and training to qualify for the license] seems to paint with a broad brush as there is no indication that this requirement literally applies to every job even assuming most of the surveillance system jobs would be affected, and there is no evidence of that, there remain a significant number of jobs in the economy.” But the only other job that either the vocational expert who testified in the present case, or the administrative law judge, had mentioned that McClesky could do was telemarketing, and the vocational expert had overlooked the fact that while telemarketers generally use a headset in making calls to potential customers, they still have to be able to type on a computer keyboard in order to make a record of the call if the person they[*354] speak to is interested in the product being marketed. The Dictionary of Occupational Titles — 'the Bible of vocational experts— says that telemarketing requires “frequent fingering.” McClesky is physically incapable of that; she can do only “occasional typing.”

This gaping hole in the record was never filled. In violation of the Chenery doctrine, e.g., SEC v. Chenery Corp., 318 U.S. 80, 87-88, 63 S.Ct. 454, 87 L.Ed. 626 (1943); Banks v. Gonzales, 453 F.3d 449, 451 (7th Cir.2006); Mendez v. Barnhart, 439 F.3d 360, 362 (7th Cir.2006), the Social Security Administration’s lawyer argued to us that the evidence about surveillance jobs that was submitted after the hearing should not have been considered by the administrative law judge and should not be considered by us. The judge had not excluded the evidence; she had admitted it, accepted its truth for purposes of her decision, and ruled erroneously that the evidence made no difference because McClesky was capable of working as a telemarketer if not as a surveillance system monitor. In addition the judge failed to consider whether McClesky would be able, physically and financially, to undergo the training required to obtain a license to be a surveillance system monitor.

Not only is it improper for an agency’s lawyer to defend its decision on a ground that the agency had not relied on in its decision; there is no basis for the lawyer’s argument that the post-hearing evidence was inadmissible. The Social Security Administration’s regulations do provide that “if possible, the evidence or a summary of evidence [that the claimant] wish[es] to have considered at the hearing should be submitted to the administrative law judge with the request for hearing or within 10 days after filing the request.” 20 C.F.R. § 404.935. But the judge “may also reopen the hearing at any time before he or she mails a notice of the decision in order to receive new and material evidence.” 20 C.F.R. § 404.944. The Social Security Administration suggests to applicants for disability benefits that “after an administrative law judge hearing ... [they] submit post hearing evidence as soon as possible.” Social Security Administration, “Best Practices for Claimants’ Representatives,” www.ssa.gov/appeals/ best_practiees.html (visited Apr. 22, 2010); see 1 National Organization of Social Security Disability Claimants Representatives, Social Security Practice Guide § 10.04 (2009); Richard C. Ruskell, Social Security Claims Handbook §§ 3:14, 9:88 (2009). The implication is that “evidence can be submitted up to the date an ALJ decision is issued.” 1 Barbara Samuels, Social Security Disability Claims: Practice and Procedure § 16:51 (2009).

And in fact the submission and consideration of post-hearing evidence are common in social security disability cases — especially evidence consisting of “posthearing affidavits of experienced workers, supervisors, etc., to rebut vocational ‘expert’ testimony which cannot be anticipated prior to hearing,” Ruskell, supra, § 9:88, since the claimant has no clue to what the vocational expert will testify until the end of the hearing. He testifies last and bases his testimony on hypothetical questions, summarizing the claimant’s condition, asked him by the administrative law judge at the end of the hearing. If, as in this case, he stumbles, it is proper for the claimant to submit further evidence after the hearing, provided this is done promptly, as it was here.

The lawyer for the Social Security Administration also suggested to us that the vocational expert who wrote the letter about the surveillance jobs, Edward Pagella, was some unknown interloper. Actually he’s one of the vocational experts who testifies regularly in social security disabil[*355] ity cases. He has managed a vocational rehabilitation and consulting company (“Health Connection of Illinois”) since 1989, healthconnectionil.com (visited Apr. 21, 2010); has consulted as an expert for the Social Security Administration for twenty years; and has been mentioned by name as the testifying expert in several reported social security disability cases. See Grieves v. Astrue, 600 F.Supp.2d 995, 997 (N.D.Ill.2009); Kopulos v. Barnhart, 215 F.Supp.2d 996, 998 (N.D.Ill.2002); Vadeboncoeur v. Callahan, 976 F.Supp. 751, 754-55 (N.D.Ill.1997).

The government’s rather wild arguments were made by its lawyer only at oral argument, and so perhaps should be forgiven. In his brief all he said about Pagella’s affidavit was that the administrative law judge was not required to consider it. The decision whether to reopen the hearing to receive “new and material evidence” is indeed discretionary, 20 C.F.R. § 404.944, and we need not decide whether it would have been an abuse of discretion for her to refuse to consider the post-hearing evidence, since she did consider it. We can’t find any cases ruling on when an administrative law judge’s refusal to consider new and material evidence first submitted after the hearing might be an abuse of discretion.

The case must be returned to the Social Security Administration for further proceedings in light of the inadequate analysis of credibility by the administrative law judge and her erroneous assumption that a job as a telemarketer would be consistent with McClesky’s limitations.

Reversed and Remanded.