Boasso v. Social Security Administration
Filing
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ORDER AND REASONS: The Court, having considered the objection, the response, the record, the applicable law, and the Magistrate Judge's Report and Recommendation (Rec. Doc. 12), IT IS ORDERED that Plaintiff's suit is REMANDED to the Administrative Law Judge (ALJ) for the reasons set forth in document. Signed by Judge Jay C. Zainey on 5/28/2019. (cc: SSA)(ajn)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
ELROY J. BOASSO, III
CIVIL ACTION
VERSUS
NO. 18-5623
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF THE SOCIAL
SECURITY ADMINISTRATION
SECTION: “A”(5)
ORDER AND REASONS
Before 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.
I.
Background
Elroy 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 crossmotion 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. 14).
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The 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).
II.
Discussion
Plaintiff 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.
(Id.).
Judicial 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
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reasonable person would accept it as adequate to support a conclusion. Richardson v. Perales,
402 389, 401 (1971); Spellamn v. Shalala, 1 F.3d 357, 360 (5th Cir. 1993); Masterson v.
Barnhart, 309 F.3d 267, 272 (5th Cir. 2002).
Plaintiff 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 the Commissioner.
The 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 Cir. 1995).
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Plaintiff 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).
Plaintiff 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).
All 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
Plaintiff was not referred for a neurocognitive assessment until 2018. (Rec. Doc. 10-4, p. 1).
The Court finds that the new evidence is material and Plaintiff had good cause for not
incorporating the evidence into the record before the ALJ. The evidence is material because it
relates to the period for which disability benefits are sought. In April 2018, Dr. Booksh issued
his medical report in which he diagnosed Plaintiff as having major neurocognitive disorder as a
result of a severe traumatic brain injury, the 2012 incident. (Rec. Doc. 10-4, p. 7). The second
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materiality requirement is met as the Court finds there is a reasonable possibility that Dr.
Booksh’s report would have changed the outcome of the Commissioner’s determination had Dr.
Booksh’s report been before him. Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985)
(quoting Dorsey v. Heckler, 702 F.2d 597, 604–05 (5th Cir.1983).
Plaintiff has good cause for failing to incorporate the evidence into the record in 2017
because Booksh’s evaluation came only after the referral of his treating physician, Dr. Casey.
(Rec. Doc. 10-4, p. 1). Dr. Casey reported that Plaintiff was having issues with medical
compliance and detected a potential cognitive impairment, and as Plaintiff asserts, no records
reflect that any prior treating doctor recommended a neuropsychological evaluation or suspected
noncognitive impairment. (Rec. Doc. 13, p. 8). Therefore, the Court orders that the case be
remanded so that the additional evidence may be taken before the ALJ.
III.
Conclusion
Accordingly,
IT IS ORDERED that Plaintiff’s suit is REMANDED to the Administrative Law Judge.
New Orleans, Louisiana, this 28th day of May, 2019.
JUDGE JAY C. ZAINEY
UNITED STATES DISTRICT JUDGE
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