Parkerv.Barnhardt

United States District Court, N.D. Texas, Dallas DivisionApr 14, 2005
No. 3:03-CV-01725-L (N.D. Tex. Apr. 14, 2005)

No. 3:03-CV-01725-L.

April 14, 2005


FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE


WILLIAM SANDERSON, Magistrate Judge

Pursuant to 28 U.S.C. § 636(b) and the District Court's Order of Reference signed October 8, 2003, came on to be considered Plaintiff StarCha Parker's action brought under 42 U.S.C. § 405(g) seeking judicial review of the Defendant's denial of Plaintiff's application for child's insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 402.

Procedural History: Mary Wilson filed an application on behalf of her daughter, StarCha Parker on February 2, 2000. An Administrative Law Judge ("ALJ") conducted a hearing on August 22, 2001. Plaintiff's mother, who brought the suit on her behalf, waived representation at that time. (Administrative Record, "Tr." 23). On March 26, 2002, the ALJ denied Plaintiff's request for child's insurance benefits. ( Id. at 11). In pertinent part, the ALJ found that the record did not establish a "`clear and convincing' parent-child relationship between Anthony Parker ("the wage earner") and the claimant StarCha Parker." ( Id. at 17).

On May 23, 2002, Loran Parker-Jackson, Esq., entered her appearance as counsel on behalf of the claimant (Tr. 146) and thereafter submitted a request for review of the ALJ's unfavorable decision by the Appeals Council. (Tr. 153-55; see also Tr. 155-60, affidavits submitted with the request)On June 2, 2003, the Appeals Council denied the request for review ( id. at 6), therefore the ALJ's decision became the Commissioner's final decision for purposes of judicial review.

Plaintiff filed her complaint pro se on July 31, 2003. On November 17, 2003, Plaintiff filed an amended complaint. On November 21, 2003, cause No. 3:03-CV-2009-L was consolidated with the instant action and administratively closed. On June 15, 2004, Plaintiff filed her brief pursuant to the order of the court filed on January 22, 2004, directing that briefs be filed. On June 24, 2004, Elizabeth Bower Dunlap, Esq., entered her appearance as counsel for Plaintiff. On July 30, 2004, the Commissioner filed her brief urging that the court affirm the decision denying Plaintiff's entitlement to child's insurance benefits. On August 24, 2004, the court entered its order extending the time in which Plaintiff was permitted to file her reply brief to Defendant's brief. On September 24, 2004, Plaintiff filed her motion to remand the case to the Commissioner pursuant to the sixth sentence of 42 U.S.C. § 405(g) to review additional evidence not previously considered. Defendant in turn filed her response on October 8, 2004, opposing Plaintiff's motion and on October 25, 2004, Plaintiff filed her reply. In the present recommendation the magistrate judge addresses only Plaintiff's motion to remand under sentence six. Findings and Conclusions: After the Appeals Council denied Plaintiff's request for review, Plaintiff obtained a report dated September 17, 2003 from DNA Diagnostic Center of Fairfield, Ohio. ( See Exh. A attached to Pl.'s Mot. to Remand). The DNA tests related to the deceased wage earner's mother and sister and was performed after the wage earner's death. The test results show a ninety-eight point five percent probability of relatedness and a probability index of sixty-five to one that the wage earner's mother and sister are related to Plaintiff. The report notes that this requires the assumption that the wage earner's mother and sister were actually biologically related to the wage earner. ( Id.).

When new evidence becomes available after the final determination of the Commissioner and there is a reasonable possibility that the evidence would change the outcome of that decision, a case may be remanded to the Commissioner if the evidence is new, material, and there is good cause for the delay of the production of the evidence. E.g. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Plaintiff bears the burden to show that the evidence is material and that she had good cause for her failure to submit the evidence in the prior proceeding. Chaney v. Schweiker, 659 F.2d 676, 679 (5th Cir. 1981).

It is undisputed that the evidence is new. ( See Def.'s Resp. in Opposition to Pl.'s Mot. to Remand to Consider New Evidence and Memo. in Supp. at 2). The issue of whether Plaintiff's new evidence is material need not be addressed since she cannot carry her burden to show good cause for her failure to submit the evidence in the prior proceeding. In attempting to demonstrate "good cause" Plaintiff represents that the deceased wage earner's mother was formerly unwilling to submit to DNA testimony. ( See Pl.'s Mot. to Remand at 6). However, the record before the court does not support this assertion. ( See Tr. 112-14; 141; 155-56). Aside from any showing that providing a specimen for testing would have in fact been invasive, there is no indication that a specimen from the wage earner's sister could not have been obtained prior to the action of the Appeals Council.

Accepting as true Plaintiff's claim that DNA Diagnostic Center charged $1400.00 for its services, it is clear that she with the assistance of her mother were able to obtain funds to pay for the services. (Pl.'s Mot. to Remand at 7). She has failed to show that a loan could not have been obtained prior to the Appeal's Council decision in order to have provided it with additional evidence consisting of DNA tests pursuant to her counsel's request for review of the ALJ's decision, nor has she shown that testing could not have been performed in Dallas at a lesser expense to that charged by the Ohio testing company. Recommendation:

For the foregoing reasons, it is recommended that the District Court enter it order denying Plaintiff's motion to remand pursuant to sentence six of 42 U.S.C. § 405(g), and that the District Court refer this action back to the undersigned magistrate judge for a recommendation on the merits of Plaintiff's claim for child's insurance benefits.

A copy of this recommendation shall be transmitted to counsel for the respective parties.

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar ade novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.