Opinion
CIVIL ACTION NO. 02-1656 SECTION "R" (2)
August 25, 2003
ORDER AND REASONS
The Court, having considered the petition, the record, the applicable law, the Report and Recommendation of the United States Magistrate Judge, the plaintiff's objection to the Magistrate Judge's Report and Recommendation, and the Commissioner's response to the plaintiff's objections, hereby approves the Report and Recommendation of the United States Magistrate Judge and adopts it as its opinion in this matter. The Court finds that the Magistrate Judge correctly determined that the opinion of the Administrative Law Judge ("ALJ") was supported by substantial evidence.
The Court must, however, treat plaintiff's Unopposed Motion to Supplement the Record. For the following reasons, the Court denies plaintiff's motion.
Facts and Procedural Background
On February 2, 1999, plaintiff's grandmother, Ms. Alexander, applied to the Social Security Administration ("SSA") for Supplemental Security Income, alleging that plaintiff had become disabled on May 12, 1998. The Commissioner of the SSA denied plaintiff's application initially and on reconsideration. An ALJ then conducted a hearing on June 27, 2000. The ALJ issued a decision on September 4, 2000, finding that plaintiff was not disabled and ineligible for SSI. On April 5, 2002, the Appeals Council denied plaintiff's request for review, and plaintiff filed for review in this court. The Magistrate Judge affirmed the decision of the ALJ on March 12, 2003.
On March 24, 2003, after the issuance of the Magistrate Judge's Report and Recommendation, plaintiff filed in this Court an Unopposed Motion to Supplement the Record with allegedly new and material evidence. In this motion, plaintiff also requests a remand of this case to the Commissioner to consider this new material.
This evidence consists of a recent determination, based on a subsequent application filed by Alexander, by a second ALJ that plaintiff is disabled and is eligible for SSI under 20 C.F.R. part 404, subp. p, app. 1, §§ 112.05(C) and (D). The ALJ issued this opinion on January 31, 2003. The second ALJ based his determination of plaintiff's eligibility for SSI on psychosocial and psychological evaluations not considered by the first ALJ. This ALJ determined that for purposes of SSI, plaintiff had become disabled on September 6, 2000, fixing the commencement of plaintiff's disability at two days after the issuance of the first ALJ's opinion.
On June 17, 2000, Mary Brandon, a licensed social worker evaluated plaintiff, determining that he was a "crack baby." On November 8, 2002, Marc L. Zimmerman, a licensed psychologist evaluated plaintiff, determining that plaintiff is mildly mentally retarded. There is no evidence in the opinion of the first ALJ that he had either of these evaluations.
Analysis
As pointed out by the Commissioner in her Response to Plaintiff's Objections, Plaintiff's Unopposed Motion to Supplement the Record is indeed opposed and does not comply with Local Rule 7.6E. See Commissioner's Resp. to Pl.'s Objections to the Magistrate Judge's Findings and Recommendation, at 2. Plaintiff did not include a certificate of counsel with her motion, certifying an "attempt to obtain consent for the filing and granting of such motions" as required by the Local Rule.
Putting aside this defect, the Court finds that the supplemental evidence does not justify a remand. In order to warrant a remand, the evidence submitted by plaintiff must be (1) new, (2) material, and (3) good cause must be shown for the failure to incorporate the evidence into the record in the prior proceeding. See Leggett v. Chater, 67 F.3d 558, 567 (5th Cir. 1995); Bradley v. Bowen, 809 F.2d 1054, 1058 (5th Cir. 1987).
The Court finds little difficulty in determining that the proffered supplemental evidence is new. The Court finds, however, that plaintiff has not satisfied the materiality requirement. In order to be material, the evidence must pertain to the contested time period and not merely concern a subsequently acquired disability or the deterioration of a condition that was not previously disabling. Leggett, 67 F.3d at 567; Bradley, 809 F.2d at 1058. The contested time period here is May 12, 1998 through September 4, 2000, the time period for which the first ALJ determined that plaintiff was not disabled and ineligible for SSI. It is indisputable that both the November 8, 2002 evaluation and the second ALJ's decision post-date the first ALJ decision, which is the only decision at issue on this review. See Clark v. Callahan, No. Civ. A. 96-2901, 1997 WL 466874 (E.D. La. 1997).
Plaintiff offers no evidence that his current condition is not the result of the deterioration of a condition that was not previously disabling. See Leggett, 67 F.3d at 567. Plaintiff's November 8, 2002 evaluation indicates at most that plaintiff was disabled in November 2002, more than two years after the contested period for which disability benefits were initially sought. See Bradley, 809 F.2d at 1058. Plaintiff complains that he suffers from attention deficit hyperactivity disorder, a condition that can change over time. In addition, the second ALJ noted that IQ tests are considered current for only two years for children in plaintiff's age group and IQ range. The IQ test results furnished to the second ALJ were based on tests administered more than two years after the end of the period at issue before the first ALJ. The IQ testing was therefore not material to the earlier period because it was not valid for that period. Therefore, the supplemental evidence does not pertain to the time period at issue in the first ALJ opinion.
Neither does the Court find that the plaintiff has shown good cause for the failure to incorporate the evidence into the first administrative proceeding. Plaintiff's only explanation for why this evidence was not incorporated into the first hearing is that such evidence was not available until very recently. See Pl.'s Unopposed Mot. to Supplement the R., at 2. "It is . . . the settled law of our Circuit that new evidence is not the requisite good cause for . . . a remand unless a proper explanation is given of why it was not submitted earlier." Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989) (citing Geyen v. Secretary, 850 F.2d 263, 264 (5th Cir. 1988)). The mere fact that a medical report is of recent origin is insufficient to meet the good cause requirement. Id. (citing Bradley v. Bowen, 809 F.2d 1054, 1058 (5th Cir. 1987)). As noted above, the recent origin of such evidence is not in and of itself enough to satisfy the good cause requirement. Plaintiff has made no showing why the November 8, 2002 evaluation could not have been obtained earlier. The appropriate action regarding this post-hearing evidence is to resubmit a new disability application to the Social Security Administration with this evidence as the basis for such application. See Leggett, 67 F.3d at 567. Plaintiff has already chosen this option.
For these reasons, the Court denies plaintiff's motion to remand.