Opinion
Case No. 01-4117-SAC
November 21, 2003
MEMORANDUM AND ORDER
This is an action to review the final decision of the defendant Commissioner of Social Security ("Commissioner") denying the claimant's application for disability insurance benefits under Title II of the Social Security Act ("Act"). When the case became ripe for decision upon the filing of the parties' briefs pursuant to D.Kan. Rule 83.7, the district court referred it to the magistrate judge for a report and recommendation. On October 14, 2003, the magistrate judge filed his proposed findings of fact and conclusions of law recommending that the district court remand the Commissioner's decision, which had denied the claimant's applications, for the limited purpose of developing the record with respect to plaintiff's disability determination between 1979 and 1985. (Dk.19). The case now comes before the district court upon the defendant's timely filed objections to the magistrate judge's report and recommendation. (Dk.20). The plaintiff has filed nothing in response to the defendant's objections.
BACKGROUND
This case has a long procedural history which is fully and accurately set forth in the report and recommendation, thus the court adopts the part of the report captioned "background." Only a few facts need be repeated herein for the convenience of the reader. The last date that plaintiff was insured for disability benefits was December 31, 1980. She applied for disability insurance benefits on October 8, 1993, alleging that her disability began on February 2, 1979.
The ALJ found that, regardless of any earlier or later period of disability, plaintiff did not have a medically determinable "severe" impairment from 1985 to 1989. Plaintiff does not dispute this finding. Because plaintiff's disability was neither complete nor continuous from the date of its onset, at which time plaintiff was insured, to a time at or near her application for benefits, the ALJ found that plaintiff was not entitled to any disability insurance benefits.
Upon review, the magistrate judge found that the lack of continuous disability did not preclude all recovery, and that plaintiff may be entitled to disability insurance benefits for the years 1979 to 1985.
STANDARD OF REVIEW
"De novo review is statutorily and constitutionally required when written objections to a magistrate's report are timely filed with the district court." Summers v. State of Utah, 927 F.2d 1165, 1167 (10th Cir. 1991) (citations omitted). Rule 72(b) of the Federal Rules of Civil Procedure requires a district judge to "make a de novo determination upon the record . . . of any portion of the magistrate judge's disposition to which specific written objection has been made in accordance with this rule." Those parts of the report and recommendation to which there has been no objection are taken as true and judged on the applicable law. See Campbell v. United States District Court for the Northern Dist. of California, 501 F.2d 196, 206 (9th Cir.), cert. denied, 419 U.S. 879 (1974); see also Summers, 927 F.2d at 1167 (holding that "[i]n the absence of timely objection, the district court may review a magistrate's report under any standard it deems appropriate"). The district court has considerable judicial discretion in choosing what reliance to place on the magistrate judge's findings and recommendations. See Andrews v. Deland, 943 F.2d 1162, 1170 (10th Cir. 1991) (citing United States v. Raddatz, 447 U.S. 667 (1980)), cert. denied, 502 U.S. 1110 (1992). When review is de novo, the district court is "`free to follow . . . or wholly . . . ignore'" the magistrate judge's recommendation, but it "`should make an independent determination of the issues'" without giving "`any special weight to the prior'" recommendation. Andrews, 943 F.2d at 1170 (quoting Ocelot Oil Corp. v. Sparrow Industries, 847 F.2d 1458, 1464 (10th Cir. 1988)). In short, the district court may accept, reject, or modify the magistrate judge's findings, or recommit the matter to the magistrate with instructions. See 28 U.S.C. § 636(b)(1)(C)(1994).
ANALYSIS AND DISCUSSION
The defendant specifically objects to the magistrate judge's finding that "the plaintiff need not prove she was disabled for a continuous period of time so long as she was disabled prior to the expiration of her insured status." (Dk. 19, p. 22.) Defendant contends that this is legal error. Defendant further contends that the magistrate judge misinterpreted the ALJ's decision in stating that "neither the ALJ nor the Commissioner argues that Plaintiff's right to disability insurance benefits for the period of 1979-1985 expired by waiting until 1993 to file her application." Id., at p. 12. Defendant alleges that although neither the ALJ nor the Commissioner used those words in their decisions, that is precisely what both attempted to convey by their decisions.
The controlling issue is whether plaintiff had the burden to show that she was continuously disabled from the date she was last insured in December of 1980 until at or near the time she applied for disability insurance benefits in October of 1993. This is a question of law.
The ALJ found that plaintiff was "insured for disability benefits through December 31, 1980 only." (Dk. P. 361.) Neither party disputes this finding, which the court affirms is correct. The ALJ then stated: "Therefore, claimant must establish disability on or prior to this date and further must prove she was continuously disabled from the time of onset to the time of application for benefits. In support of this assertion of law, the ALJ cited Flaten v. Secretary of Health Human Services, 44 F.3d 1453, 1460 (9th Cir. 1995).
Flaten held:
claimants who apply for benefits for a current disability after the expiration of their insured status must prove that the current disability has existed continuously since a date on or before the date that their insurance coverage lapsed. Accordingly, we affirm the district court's refusal to apply the relation-back doctrine to Flaten's case.44 F.3d at 1462.
Under the relation-back theory, "if the plaintiff can demonstrate a present disability that is clearly and directly traceable to a condition having its inception when she was covered by disability insurance, HHS should find her qualified for disability insurance benefits." Cassel v. Harris, 493 F. Supp. 1055, 1058 (D. Colo. 1980). The Tenth Circuit has not adopted the Cassel holding, however. Flaten, 44 F.3d at 1461, citing Potter v. Secretary of Health Human Servs., 905 F.2d 1346, 1348-49 (10th Cir. 1990) (finding that a retrospective diagnosis must establish actual disability prior to expiration of insured status in order to entitle a claimant to benefits).
The magistrate judge distinguished Flaten because in that case, unlike in this one, the plaintiff tried to relate her current disability back to a disability that both began and ended while she was still insured. The court finds this distinction to be immaterial. The crucial inquiry is not whether plaintiff's previous disability ended before her insurance lapsed, but whether plaintiff's current disability began before her insurance lapsed. The court finds Flaten applicable to the present facts, as neither the rationale for its holding, nor the language thereof is limited to circumstances in which a plaintiff's initial disability ended before her insurance expired. Similar facts were presented in Tierney v. Chater, 113 F.3d 1247, 1997 WL 288922, *1 (10th Cir. 1997) (Table), where the Court stated:
Plaintiff does not dispute that her insured status expired on December 31, 1978. As a result, she is not entitled to disability benefits unless she can prove that she met the requirements for statutory blindness beginning before December 31, 1978, and continuing without interruption up to sometime within the year before the month in which she filed her claim for benefits. See 20 C.F.R. § 404.315(a)(3), 404.320(b)(3).
The Flaten rule is based upon the statutory scheme, which requires a claimant to file an application for disability insurance benefits within 12 months of the date the disability ends. See 20 C.F.R. § 404.315(a)(3) ("You are entitled to disability benefits . . . if — [among other requirements] you have a disability . . . or you are not disabled, but you had a disability that ended within the 12-month period before the month you applied); 404.320(b)(3) ("You are entitled to a period of disability if you meet all the following conditions:(1) You have or had a disability . . . (2) You are "insured for disability"; . . . and (3) You file an application while disabled, or no later than 12 months after the month in which your period of disability ended); 404.621(d) ("You must file an application for a period of disability while you are disabled or no later than 12 months after the month in which your period of disability ended."); 42 U.S.C. § 416(i)(2)(E) (. . . no application for a disability determination which is filed more than 12 months after the month . . . in which the period of disability ends . . . shall be accepted as an application for purposes of this paragraph). See also 42 U.S.C. § 416(i)(2)(F)(2)(A) (defining the term "period of disability" to mean: "a continuous period (beginning and ending as hereinafter provided in this subsection) during which an individual was under a disability . . .");
As stated in Welch v. Barnhart, 2003 WL 22245137, *2 (D. Kan. 2003):
An application for benefits under Title II is effective for a limited period of time. Not only must Plaintiff be disabled prior to the expiration of his insured status, but he must also be continuously disabled since that time, or his disability must not end prior to the twelve month period before the month he filed his application.
In Welch, plaintiff filed his application for disability insurance benefits under Title II on January 19, 1994. Therefore, the Court found that for any Title II benefits to be payable, plaintiff must have been disabled from the date his insurance expired at least through January 1993.
Cases in the Ninth Circuit have consistently interpreted Flaten to mean that one who is not insured under Title II on the date he files an application for disability benefits has the burden of proving that he had been continuously disabled from on or before the date he was last insured. See Bodnarchuk v. Barnhart, 70 Fed. Appx. 411, 412-412, 2003 WL 21480338, *1 (9th Cir. 2003); Woods v. Barnhart, 41 Fed. Appx. 960, 962, 2002 WL 1727655, *1 (9th Cir. 2002); Winters v. Commissioner of Social Security Admin., 156 F.3d 1241, 1998 WL 465205, *1 (9th Cir. 1998) (Table).
Cases from other jurisdictions do the same, uniformly construing Flaten to mean that a plaintiff who applies for disability benefits after her insured status for disability has lapsed has the burden to show "that her disability was continuous from the date she was last insured, up until one year prior to the filing of her application for benefits." Arthur v. Barnhart, 211 F. Supp.2d 783, 787-88 (W.D. Va. 2002), citing Flaten, 44 F.3d at 1458 (finding insufficient evidence to support plaintiff's contention that she suffered from a disability beginning prior to termination of insured status and extending to a time during the twelve month period immediately prior to the date of application for benefits). See e.g. Wilson v. Barnhart, 284 F.3d 1219, 1226-1227 (11th Cir. 2002); Aalund v. Barnhart, 2002 WL 32067455, *5 (D.N.D. 2002); Belcher v. Apfel 56 F. Supp.2d 662, 666-67 (S.D. W. Va. 1999); Beem v. Callahan, 1997 WL 542681, *3 (N.D. Cal. 1997); Ziff v. Chater, 930 F. Supp. 1356, 1358 (N.D. Cal. 1996); Zuckerman v. Chater, 1995 W L 864080, *2-3 (D. Hawaii 1995). Cf Coley v. Halter, 10 Fed. Appx. 122, 2001 WL 521339, *1 (4th Cir. 2001).
The Flaten rule is also supported by the general rationale underlying insurance policies. As summarized in Belcher, 56 F. Supp.2d at 666-67:
Disability insurance operates as a type of insurance against disability. Just as an insurance policy would lapse after the policy owner ceases to pay the premiums, the same is true for disability insurance. See 20 C.F.R. § 404.101 (1998). Within a certain period of time after the individual stops paying into the social security system, the individual loses his eligibility for benefits. See id. To continue receiving benefits after losing his disability insured status, a claimant must demonstrate that he became disabled prior to the expiration of his disability insured status. See Flaten v. Secretary of Health Human Servs., 44 F.3d 1453, 1459 (9th Cir. 1995); 42 U.S.C. § 423(a)(1). . . . The claimant must be under a disability at the same time that he is insured for disability insurance benefits. Id.
Based upon the weight of the authorities set forth above, the court declines to adopt the magistrate judge's report and recommendation, and finds it necessary to apply the continuous disability rule, which not only is articulated in Flaten but also is required by relevant regulations. The court further finds substantial evidence in support of the ALJ's conclusion that plaintiff did not show that her disability kept her from performing substantial gainful activity continuously from the date she was last insured through at least 12 months prior to the date she filed her application. Accordingly, the court affirms the Commissioner's final decision.
IT IS THEREFORE ORDERED that defendant's objection to the report and recommendation of United States Magistrate Judge (Doc. 20) is granted, that the court declines to adopt the report and recommendation except as to its recitation of facts as noted above, and that the decision of the Commissioner denying benefits to claimant is affirmed.