Louis Goerg v. Richard S. Schweiker, Sec'y of Health & Human Servs., Defendant, 643 F.2d 582 (9th Cir. 1981). · Go Syfert
Louis Goerg v. Richard S. Schweiker, Sec'y of Health & Human Servs., Defendant, 643 F.2d 582 (9th Cir. 1981). Cases Citing This Book View Copy Cite
27 citation events (3 in the last 25 years) across 11 distinct courts.
Strongest positive: Matthew B. v. Frank Bisignano, Commissioner of Social Security (waed, 2026-03-10) · Strongest negative: Margarita TIRADO, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee (ca2, 1988-03-10)
Treatment trajectory · 1981 → 2026 · click a year to view as-of
1981 2003 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited "but see" Margarita TIRADO, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee
2d Cir. · 1988 · signal: but see · confidence high
But see Georg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981) (court found that evidence presented for the first time to the Court of Appeals satisfied the standards of 42 U.S.C. § 405 (g) “as a matter of law”).
cited Cited as authority (rule) Matthew B. v. Frank Bisignano, Commissioner of Social Security
E.D. Wash. · 2026 · confidence medium
Goerg v. Schweiker, 643 F.2d 582, 584 (9th Cir. 3 1981); 42 U.S.C. § 405 (g).
cited Cited as authority (rule) Jimmie L. Howard v. Commissioner of Social Security
6th Cir. · 2002 · confidence medium
Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir.1991); Goerg v. Schweiker, 643 F.2d 582, 583-84 (9th Cir.1981).
cited Cited as authority (rule) Charles Williams v. Donna E. Shalala
9th Cir. · 1994 · confidence medium
Sanchez v. Secretary of Health & Human Services, 812 F.2d 509, 511 (9th Cir.1987); Key v. Heckler, 754 F.2d 1545, 1551 (9th Cir.1985); Goerg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981).
discussed Cited as authority (rule) Joan M. Jones v. Louis W. Sullivan, M.D., Secretary of Health and Human Services
2d Cir. · 1991 · confidence medium
Only when the appeals court can determine that the new evidence is sufficient as a matter of law to require a new hearing is remand from the appeals court directly to the Secretary appropriate, Tirado, 842 F.2d at 597 , see Goerg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981).
cited Cited as authority (rule) Ethel TOLANY, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of U.S. Department of Health and Human Services, Defendant-Appellee
2d Cir. · 1985 · confidence medium
See Burton v. Heckler, 724 F.2d 1415, 1418 (9th Cir.1984); Dorsey v. Heckler, 702 F.2d 597, 605-06 (5th Cir.1983); Goerg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981).
cited Cited as authority (rule) Clyde H. BOOZ, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee
9th Cir. · 1984 · confidence medium
Goerg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981).
discussed Cited as authority (rule) Lamar WILSON, Plaintiff-Appellant, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Defendant-Appellee
6th Cir. · 1984 · confidence medium
Cf. Ward v. Schweiker, 686 F.2d 762, 764 (9th Cir.1982); Georg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981). 1 We also find the newly-submitted records to be material evidence bearing directly on issues decided below.
cited Cited as authority (rule) Percy Burton v. Margaret Heckler, Secretary of Health and Human Services
9th Cir. · 1984 · confidence medium
See Johnson v. Schweiker, 656 F.2d 424, 425-26 (9th Cir.1981); Goerg v. Schweiker, 643 F.2d 582, 583 (9th Cir.1981).
discussed Cited as authority (rule) Czubala v. Heckler (2×) also: Cited "see"
N.D. Ind. · 1983 · confidence medium
Goerg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981).
discussed Cited as authority (rule) Matthew Johnson v. Richard S. Schweiker, 1 Secretary of Health and Human Services
9th Cir. · 1981 · confidence medium
Under the Social Security Act, the court may remand a case to the Secretary for a rehearing and the taking of additional evidence if it finds there is good cause to do so. 42 U.S.C. § 405 (g); Goerg v. Schweiker, 643 F.2d 582, 583 (9th Cir. 1981).
cited Cited as authority (rule) Lebus v. Harris
N.D. Cal. · 1981 · confidence medium
Goerg v. Schweiker, 643 F.2d 582, 583 (9th Cir. 1981); Kemp v. Weinberger, 522 F.2d 967, 969 (9th Cir. 1975), quoting Wray v. Folsom, 166 F.Supp. 390, 395 (W.D.Ark.1958).
discussed Cited as authority (rule) Barnard v. Secretary of Health & Human Services
D. Maryland · 1981 · confidence medium
Goerg v. Schweiker, 643 F.2d 582, 583 (9th Cir. 1981); Allen v. Schweiker, 642 F.2d 799, 802 (5th Cir. 1981) (per curiam); 3 Cagle v. Califano, 638 F.2d 219, 221 (10th Cir. 1981); Knox v. Harris, 512 F.Supp. 162 (E.D.Pa.1981); Cancel v. Harris, 512 F.Supp. 69 (E.D.Pa.1981); Thompson v. Harris, 508 F.Supp. 134, 138 (D.Kan.1981); Taylor v. Harris, No. 78-1798-MA (D.Mass.
discussed Cited "see" Jones v. Astrue
D.C. Cir. · 2011 · signal: see · confidence high
Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir.1985); see Goerg v. Sckweiker, 643 F.2d 582, 584 (9th Cir.1981) (concluding that, under similar circumstances, "no useful purpose would be served by” returning the case to the district court to rule on the sentence-six issue).
discussed Cited "see" Cosme Gonzalez v. Kenneth Apfel , Commissioner, Social Security Administration
9th Cir. · 1998 · signal: see · confidence high
See Booz v. Secretary of Health and Human Services, 734 F.2d 1378, 1380 (9th Cir.1984) ("The question of materiality of the new evidence is one of law reviewed de novo by this court.") (citing Georg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981)).
cited Cited "see" Key v. Heckler
9th Cir. · 1985 · signal: see · confidence high
See Goerg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981); 42 U.S.C.
cited Cited "see" Key v. Heckler
9th Cir. · 1985 · signal: see · confidence high
See Goerg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981); 42 U.S.C. § 405 (g).
cited Cited "see" Valentine v. Schweiker
D. Mont. · 1983 · signal: see · confidence high
See, Goerg v. Schweiker, 643 F.2d 582, 583 (9th Cir.1981).
cited Cited "see" Brown v. Schweiker
M.D. Fla. · 1983 · signal: see · confidence high
See Goerg v. Schweiker, 643 F.2d 582 (9th Cir. 1981); Lebus v. Harris, 526 F.Supp. 56 (N.D.Cal.1981).
cited Cited "see" Alice R. Ward v. Richard S. Schweiker, Secretary of Health and Human Services
9th Cir. · 1982 · signal: see · confidence high
See Goerg v. Schweiker, 643 F.2d 582, 583 (9th Cir. 1981).
discussed Cited "see, e.g." Hector Camarena v. Secretary of Health and Human Services
9th Cir. · 1994 · signal: see also · confidence medium
The government goes so far as to assert that the district court's failure to take Dr. Bhoopat's report into consideration cannot be error because the report did not exist in the record 4 See, e.g., Wainwright v. Secretary of Health & Human Servs., 939 F.2d 680, 682 (9th Cir.1991) (a remand based upon new evidence is appropriate only upon a showing that the new evidence is "material" and that there is "good cause" for failure to introduce the evidence in a prior proceeding); see also Georg v. Schweiker, 643 F.2d 582, 584 (9th Cir.1981) (finding jurisdiction to remand for consideration of eviden…
cited Cited "see, e.g." Elmer G. JOHNSON, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee
5th Cir. · 1985 · signal: see also · confidence low
See also Goerg v. Schweiker, 643 F.2d 582 (9th Cir.1981). 11 . 42 U.S.C. § 405 (g). 12 .
Retrieving the full opinion text from the archive…
Louis GOERG, Plaintiff-Appellant,
v.
Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant-Appellee
79-3790.
Court of Appeals for the Ninth Circuit.
Apr 9, 1981.
643 F.2d 582
Louis Goerg, pro se., Jerry J. Bassett, Dept, of Health and Human Services, San Francisco, Cal., for defendant-appellee.
Alarcon, Ferguson, Reinhardt.
Cited by 22 opinions  |  Published
FERGUSON, Circuit Judge:

In 1976, the plaintiff filed applications for disability insurance and supplemental security income benefits, alleging that he had been unable to work since October 1974 because of asthma, past mental illness, and an eye defect.

In 1977, an administrative law judge found that the plaintiff was not suffering from the statutorily defined disability. See 42 U.S.C. §§ 423(d), 1382c(a)(3).

Plaintiff then brought an action in the district court seeking review of the Secretary’s decision affirming the administrative law judge. 42 U.S.C. § 405(g). That court granted the Secretary’s motion for summary judgment.

After the district court decision was entered, the plaintiff discovered that he had inoperable islet cell carcinoma of the pancreas. Medical evidence of this condition was submitted to this court. There is little question that the plaintiff would be eligible for benefits if his carcinoma had existed prior to the date on which his eligibility for disability insurance expired. However, that determination cannot be made on the basis of the present record. Although the plaintiff was examined by an independent medical examiner, that examination was directed to a determination of pulmonary disease and not to cancer of the pancreas.

In Kemp v. Weinberger, 522 F.2d 967 (9th Cir. 1975), we ordered the reopening of a disability benefits hearing because additional evidence had been submitted to the district court which was not considered by the Secretary. We noted that the granting of a remand in this context does not

require such a technical and cogent showing of good cause as would justify the vacation of a judgment or the granting of a new trial, where no party will be prejudiced by the acceptance of additional evidence and the evidence offered bears directly and substantially on the matter in dispute.

Id. at 969, quoting Wray v. Folsom, 166 F.Supp. 390, 395 (W.D.Ark. 1958). See Hall v. Secretary of Health, Education & Welfare, 602 F.2d 1372, 1377 (9th Cir. 1979) (relaxed standard applied in determining relevancy of new evidence in disability benefits case).

In light of this standard, the purpose for which the Social Security Act was enacted, and the facts of this case, it is clear that if the additional medical evidence which “bears directly and substantially upon the matter in dispute” had been presented to the district court, that court would have been required to order that the disability hearing be reopened.

In this case, the additional evidence was obtained after the notice of appeal was filed and submitted to us prior to oral argument. By reason of the statements made at oral argument by the appellant, who[*584] appeared pro per, we treat the submission of this evidence to us as a motion to remand.

This court has jurisdiction to remand matters on appeal to the district court for consideration of newly discovered evidence. The majority rule in the circuits is that in a normal civil case the appellate courts will act only if the district court first gives an “indication” that it wishes to consider the newly discovered evidence. E. g., Smith v. Pollin, 194 F.2d 349, 350 (D.C.Cir. 1952). Other courts act on such motions directly without requiring a prior expression of the district court’s views. E. g., Baruch v. Beech Aircraft Corp., 172 F.2d 445 (10th Cir. 1949). Professor Moore has resolved the conflict by advising that either procedure is “workable.” 7 J. Moore, Federal Practice 160.30, at 424 (2d ed. 1980).

We believe the majority view may be preferable in the normal civil case, and that is the procedure generally utilized in this circuit. See, e. g., Smith v. Lujan, 588 F.2d 1304 (9th Cir. 1979); Creamette Company v. Merlino, 289 F.2d 569 (9th Cir. 1961). The district court, having conducted a trial, is in a far better position than the appellate court to make the initial determination as to the materiality of new evidence. In the case before us, however, the district court is in no different position than we are. Its function, under the statute, was not to conduct a trial but only to review the pleadings and the record made before the Secretary. 42 U.S.C. §§ 1383(c)(3) and 405(g). In the normal civil case, the appellate court remands so that the district court may consider the facts presented, rule on a motion for a new trial, and conduct further proceedings where warranted. An “indication” of the district court’s view may be most useful and may avoid pointless remands. Here, the only question is whether, as a matter of law, the additional evidence is such that the Secretary is required to reopen the hearing and consider the additional evidence. That question is properly before us, and our decision resolves the issue. Under these circumstances, we believe that no useful purpose would be served by requiring appellant to obtain an “indication” from the district court prior to our determining whether to grant a motion to remand.

We do not question the correctness of the district court’s decision, which was based on the record before it. We note that the additional evidence consists of medical records that on their face show that they were made following the filing of the notice of appeal. Thus, that evidence was not, and could not have been, presented to the district court prior to the appeal. We note also that appellant tendered additional evidence to us regarding his asthmatic condition. We need not reach the question of whether this additional evidence would justify a remand. However, since our decision will require a reopening of the hearing by the Secretary for additional evidence, appellant will be free to present additional evidence relating to the asthmatic condition at the hearing, as well as the evidence relating to the carcinoma.

The judgment of the district court is vacated. The district court is directed to remand the action to the Secretary for the purpose of reopening the hearing for the consideration of additional evidence.

The mandate shall issue forthwith.