Painter v. Colvin
Filing
23
Memorandum Opinion and Order: The court accepts the recommendation of the magistrate judge and ORDERS that the decision of the Commissioner that, based on the supplemental security income application protectively filed on April 20, 2012, plaintiff, Darrel Wayne Painter, is not disabled under Section 1614(a) (3) (A) of the Social Security Act, be, and is hereby, affirmed. (Ordered by Judge John McBryde on 12/20/2016) (hth)
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DARREL WAYNE PAINTER,
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Plaintiff,
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vs.
CAROLYN W. COLVIN, ACTING
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
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MEMORANDUM OPINION
and
ORDER
Came on for consideration the above-captioned action wherein
Acting Commissioner of
Social Security, currently Carolyn W. Colvin,
defendant.
("Commissioner") is
This is an action for judicial review of a final
decision of the Commissioner denying plaintiff's claim for
supplemental security income benefits under the Social Security
Act. On November 7, 2016, the United States Magistrate Judge
issued his proposed findings and conclusions and his
recommendation ("FC&R"), and granted the parties until November
21, 2016, in which to file and serve any written objections
thereto.
On November 21, 2016, plaintiff filed his objections.
On December 19, 2016,
in response to orders of the court, the
Commissioner filed her response to the objections. After a
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NO. 4:16-CV-095-A
Darrel Wayne Painter is plaintiff and the
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thorough study of the record, the magistrate judge's proposed
findings and conclusions, and applicable legal authorities, the
court has concluded that plaintiff's objections lack merit and
that the recommendation of the magistrate judge should be
accepted.
Plaintiff alleges that the magistrate judge has erroneously
assessed new evidence he attached to his brief and that a remand
is required. Plaintiff admits that the evidence must be new and
material and that good cause exists for failing to provide it
during the original proceedings. Further, remand is required only
if there is a reasonable probability that the new evidence would
change the outcome of the Commissioner's decision. Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995). To be "new," the
evidence must not be merely cumulative of evidence already in the
record. Pierre v. Sullivan, 884 F.2d 799, 803
(5th Cir. 1989).
Having reviewed the documents plaintiff attached to his Mary 25,
2016, filing,
the court agrees with the assessment of the
magistrate judge. The documents do not constitute material
evidence of such a nature that would give rise to a reasonable
probability that they would change the outcome of the
Commissioner's decision in this action. In particular, as the
Commissioner points out, even assuming it contains a valid
medical opinion, the letter of Dr. Teresa Lugo is dated January
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27, 2015, after the date of the Commissioner's decision.
The court accepts the recommendation of the magistrate judge
and ORDERS that the decision of the Commissioner that, based on
the supplemental security income application protectively filed
on April 20, 2012, plaintiff, Darrel Wayne Painter, is not
disabled under Section 1614(a) (3) (A) of the Social Security Act,
be, and is hereby, affirmed.
SIGNED December 20, 2016.
JOHN:ptcBRY
Up.it;Jd Sta
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