United States District Court, E.D. Louisiana
ELROY J. BOASSO, III
NANCY A. BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION
ORDER AND REASONS
ZAINEY, UNITED STATES DISTRICT JUDGE
the Court is an Objection to Report and
Recommendations (Rec. Doc. 13) filed by Plaintiff
Elroy Boasso, III. The Commissioner has responded. (Rec. Doc.
14). The Court, having considered the objection, the
response, the record, the applicable law, and the Magistrate
Judge's Report and Recommendation (Rec. Doc. 12), hereby
REMANDS the case to the Administrative Law
Judge (“ALJ”) for the reasons set forth below.
Boasso, III, seeks judicial review pursuant to 42 U.S.C.
Sections 405(g) and 1382(c)(3), of the final decision of the
Commissioner denying his claim for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income
(“SSI”) benefits under Titles II and XVI of the
Social Security Act due to an injury sustained in 2012. As
ordered by the Court, Petitioner filed a motion for summary
judgment (Rec. Doc. 10), and the Commissioner filed a timely
cross-motion for summary judgment. (Rec. Doc. 11). The
magistrate judge issued a Report and Recommendation after
reviewing the cross motions. (Rec. Doc. 16). Petitioner
timely filed objections to the Report and Recommendation.
(Rec. Doc. 13). The Commissioner filed a response to
Petitioner's objections urging the Court to adopt the
magistrate judge's Report and Recommendation. (Rec. Doc.
magistrate judge found no error in the Commissioner's
final decision to deny DIB and SSI and therefore recommended
that Plaintiff's motion for summary judgment be denied,
the Commissioner's cross-motion be granted and dismissal
with prejudice of Petitioner's case. (Rec. Doc. 12). The
magistrate judge's Report and Recommendation is subject
to de novo review by this Court. 28 U.S.C. §
636(b)(1); Fed.R.Civ.P. 72(b).
alleges disability as of June 1, 2014, due to an injury
sustained in 2012. (Rec. Doc. 13, p. 2). Plaintiff's
alleged disability includes thoracic pain from a failed back
surgery, post laminectomy syndrome, degenerative disc
disease, back spasms, leg spasms, depression, anxiety,
seizures, difficulty standing or sitting for long periods of
time, and broken sleep with pain. (Rec. Doc. 12, p. 1). In
May 2015, Plaintiff filed applications for DIB and SSI.
(Id.). On September 10, 2015, the Commissioner's
administrative review process denied Plaintiff's
application for social security benefits. (Id.). On
January 10, 2017, an ALJ held a hearing de novo
followed by a written decision issued March 20, 2017,
determining that Plaintiff was not disabled within the
meaning of the Social Security Act. (Id. at 1-2). On
April 3, 2018, the Appeals Council denied Plaintiff's
appeal request rendering the ALJ's determination final.
(Id. at 2). Pursuant to 42 U.S.C. Sections 405(g)
and 1382(c)(3), Plaintiff now seeks judicial review.
review of the Commissioner's decision is limited under 42
U.S.C § 405(g) to two inquiries: (1) whether the
Commissioner applied the proper legal standards, and (2)
whether the decision is supported by substantial evidence of
the record as a whole. Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999); Anthony v. Sullivan, 954 F.2d
289, 292 (5th Cir. 1992). Substantial evidence is more than a
scintilla, but less than a preponderance and is relevant such
that a reasonable person would accept it as adequate to
support a conclusion. Richardson v. Perales, 402389,
401 (1971); Spellamn v. Shalala, 1 F.3d 357, 360
(5th Cir. 1993); Masterson v. Barnhart, 309 F.3d
267, 272 (5th Cir. 2002).
asserts three challenges to the Commissioner's decision:
(1) the ALJ committed legal error by failing to evaluate,
rule on, and file as an exhibit into the administrative
record his request for a subpoena for the records of one of
his treating physicians, Dr. Adrian Talbot; (2) Dr.
Talbot's updated medical records constitute new and
material evidence that warrants a remand as they document his
ongoing symptomology of back and leg pain and support a more
restrictive residual functional capacity assessment than that
which was arrived at by the ALJ; and (3) Dr. Randee
Booksh's report of a neuropsychological evaluation
constitutes new and material evidence warranting remand to
Court adopts the magistrate's Report and Recommendation
regarding the issues of legal error and whether Dr.
Talbot's updated medical records constitute new and
material evidence; however, the Court finds that the medical
report of Dr. Booksh constitutes new and material evidence
warranting remand. Pursuant to 42 U.S.C. Section 405(g) this
Court “may at any time order additional evidence to be
taken before the Commissioner of Social Security, but only
upon a showing that there is new evidence which is material
and that there is good cause for the failure to incorporate
such evidence into the record in a prior proceeding.”
Determining the materiality of new evidence requires a court
to make two separate inquiries: (1) whether the evidence
relates to the time period for which the disability benefits
were denied; and (2) whether there is a reasonable
probability that this new evidence would change the outcome
of the Commissioner's decision. 67 F.3d 552, 556 (5th
argues that the report relates to the time period at issue in
this litigation because Dr. Booksh's findings established
that Plaintiff sustained major neurocognitive impairment due
to his severe brain injury dating back to 2012. (Rec. Doc.
13, p. 6). Plaintiff asserts that he suffered a cognitive
decline due to the 2012 injury that was not fully
comprehended at the time of the hearing. (Id. at 7).
The Commissioner argues that Plaintiff has failed to show any
objective findings of limitations as a result of this
diagnosis, and diagnosis alone doesn't establish a
disability. (Rec. Doc. 14, p. 2).
also argues that he has good cause as to why Plaintiff did
not seek a neurocognitive assessment prior to Dr.
Booksh's evaluation. (Rec. Doc. 13, p. 7). Plaintiff
asserts that given his low range of intelligence and
perceptual reasoning he is particularly ill-suited to make
diagnostic or treatment decisions. (Id. at 8). As
such, Plaintiff argues that he was not in a position to
understand the cognitive decline caused by the 2012 injury.
(Id. at 9). The Commissioner responds by stating
that the function report completed by Plaintiff did not
indicate an inability to complete tasks due to limited mental
functioning. (Rec. Doc. 14, p. 2).
parties agree that the evidence of Plaintiff's
neurocognitive disorder and cognitive decline is new. In
2017, Plaintiff appeared before the ALJ and the
Commissioner's decision thereafter was final. The
information was not known until 2018 after the ALJ's
decision because ...