Opinion
CIVIL ACTION No. 99-1008-MLB.
May 9, 2001.
MEMORANDUM AND ORDER
This matter is now before the court upon plaintiff's objection, Doc. 29, to United States Magistrate Judge John Thomas Reid's Recommendation and Report filed January 25, 2001. Doc. 28. Defendant responded and plaintiff has filed a reply. Docs. 32 and 33.
Plaintiff filed a motion for leave to reply and attached the proposed reply. Doc. 33. Without objection, the court grants plaintiff's motion.
In May, 1995, plaintiff filed a claim for supplementary income for, inter alia, obesity. See 20 C.F.R. Part 404, Subpart P, App. 1, § 9.09 ("Section 9.09"). The application (and request for reconsideration) was denied. On May 22, a hearing on this matter was held before an administrative law judge (ALJ) who found plaintiff was not disabled. The Social Security Administration ("SSA") Appeals Council refused to review the case. This decision was then appealed to this court.
The matter was assigned to Judge Reid for review of the ALJ's decision. In his Report and Recommendation dated February 29, 2000, Judge Reid recommended the matter be remanded to obtain further factual evidence to determine whether plaintiff suffers from obesity as stated in section 9.09. Doc. 21. Defendant filed an objection to this recommendation, arguing section 9.09 had been deleted from the Social Security regulations, effective October 25, 1999, and therefore whether SSA properly denied him benefits under the old regulations was irrelevant. Because defendant failed to present this argument to Judge Reid, this court remanded the matter for Judge Reid's consideration of defendant's argument. Doc. 24.
Judge Reid began his analysis by noting section 9.09 originally recognized obesity as a valid disability for which social security income may be awarded. Effective October 25, 1999, however, section 9.09 was deleted from the SSA regulations. See Doc. 28, p. 2.
In place of the deleted impairment, the Revised Medical Criteria provides guidance about evaluating claims for benefits involving obesity to the prefaces of the musculoskeletal, respiratory, and cardiovascular body system listings. 64 Fed. Reg. 46122, 46123, 46127 [(Aug. 24, 1999).] In response to public comments, the Revised Medical Criteria states that this deletion will have "only a prospective effect. Unless otherwise required to do so . . . we do not readjudicate previously decided cases when we revise our listings." The regulation clearly states that no individual will be removed from the rolls solely because of the deletion of 9.09; the agency will not review prior allowances based on listing 9.09 under the new rules. 64 Fed. Reg. 46127 [(Aug. 24, 1999).]
Doc. 28, p. 2-3.
Defendant argued then, as he does here, SSA's intent was to apply the revised regulations (deleting section 9.09) to all pending claims existing on or after October 25, 1999, even if those claims were on judicial review. Relying upon Social Security Ruling SSR 00-3p, 65 Fed. Reg. 31039, 31042 (May 15, 2000), "Titles II and XVI: Evaluation of Obesity," Judge Reid held the SSA made its intentions clear: the new listing was to apply with retroactive effect. Doc. 28, p. 6. As such, Judge Reid recommended plaintiff's claim, even though it was being reviewed by the federal court, must be evaluated in accordance with the new guidelines. Doc. 28, p. 6.
Judge Reid acknowledged this holding appeared contrary to an unpublished opinion from the Tenth Circuit and the District of Kansas. Doc. 28, p. 3-4 (citing Nash v. Apfel, No. 99-7109, 2000 WL 710491, at *2 (10th Cir. June 1, 2000) and Rudolph v. Apfel, No. 00-4093-DES, 2000 WL 1916317, at *6-7 (D.Kan. Dec. 29, 2000)). Judge Reid distinguished these cases though, pointing out neither considered Ruling SSR 00-3p. Doc. 28, p. 5-6 (concluding the SSA has clearly and unambiguously indicated the deletion of section 9.09 should be applied to claims appealed to federal court even if the benefits have been erroneously denied under the old listing). Plaintiff does not attack this conclusion.
Plaintiff "objects that while this ruling may have been correct, it was for the wrong reasons."
Doc. 29, p. 2.
The court expresses gratitude for plaintiff's candor. Finding no allegation of error, however, there is nothing for this court to decide. Cf. United States v. Denninno, 103 F.3d 82, 85 n. 5 (10th Cir. 1996) (stating the Tenth Circuit may affirm the district court's decision "for any reason contained in the record"). Thus, this court adopts Judge Reid's Report and Recommendation of January 25, 2001 that this case be remanded, pursuant to sentence four, so that defendant can evaluate plaintiff consistent with the new rules and address other errors noted by the February 29, 2000 Report and Recommendation.
IT IS SO ORDERED.