Opinion
Case No. 00-4203-JAR
September 30, 2003
MEMORANDUM AND ORDER ADOPTING RECOMMENDATION AND REPORT
Plaintiff seeks review of a partially favorable decision of the Commissioner of Social Security (Commissioner) denying disability insurance benefits and awarding supplemental security income under sections 216(i), 223, 1602 and 1614(a)(3)(A) of the Social Security Act (the Act). Plaintiff sought review of the Administrative Law Judges's (ALJ) decision and the Honorable John Thomas Reid issued a Recommendation and Report (Doc. 26) which found that the decision of the Commissioner should be remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) to make the step five determination whether, between March 1, 1979 and March 31, 1985, Plaintiff was able to perform other work existing in significant numbers in the local or national economies. The Recommendation and Report also found that the following issues were decided in the first suit and that the Commissioner is precluded from asserting otherwise: (1) Plaintiffs date last insured was March 31, 1985; (2) As of March 31, 1985, Plaintiff had past relevant work; (3) Plaintiff met his burden to establish that, before March 31, 1985, he was unable to perform his past relevant work; and (4) Plaintiff was disabled for Title XVI purposes within the meaning of the Act at least by January 4, 1994.
42 U.S.C. § 416(i), 423, 1318a, and 1382c(a)(3)(A).
The matter is currently before the Court on Defendant's Objection to the Report and Recommendation of United States Magistrate Judge (Doc. 27). The standards this Court must employ when reviewing objections to the recommendation and report are clear. Only those portions of the recommendation and report that have been specifically identified as objectionable will be reviewed. The review of those identified portions is de novo and the Court must "consider relevant evidence of record and not merely review the magistrate judge's recommendation."
See 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72.
See Garcia v. City of Albuquerque, 232 F.3d 760, 767 (10th Cir. 2000); Gettings v. McKune, 88 F. Supp.2d 1205, 1211 (D. Kan. 2000).
See Griego v. Padilla, 64 F.3d 580, 584 (10th Cir. 1995) (citation omitted).
Defendant does not specifically object to the finding that issue preclusion should apply in this case. Rather, Defendant objects that the finding that Plaintiffs credibility should be reconsidered is inconsistent with the finding that she is prohibited from considering several issues based upon the doctrine of issue preclusion. Defendant notes that in utilizing the familiar five-step sequential evaluation process to determine disability, credibility of a claimant's allegations are considered prior to a determination of residual functional capacity (RFC). An ALJ determines RFC based on all the relevant evidence, including medical records, observations of treating physicians, and others, as well as a claimant's own description of his or her limitations. Pursuant to the Recommendation and Report, one of the issues that may not be contested on remand is that: "Plaintiff met his burden to establish that, before March 31, 1985, he was unable to perform his past relevant work." Defendant argues that "[t]he error in the Report and Recommendation is that to require the reassessment of Plaintiff's credibility necessarily means a reassessment of his residual functional capacity, possibly resulting in a residual functional capacity determination that would be consistent with the performance of Plaintiffs past relevant work-a finding the Report and Recommendation would prohibit the Agency from making under the doctrine of issue preclusion."
See 20 C.F.R. § 404.1546 and 416.946.
Although the Recommendation and Report provides for the reassessment of Plaintiff's credibility, that reassessment is necessarily limited by the issues precluded from reconsideration. Because Defendant is bound by the finding that Plaintiff was unable to perform his past relevant work before March 31, 1985, any credibility determination must be consistent with that finding. Although the Defendant will be required to perform some mental gymnastics not normally encountered in the sequential evaluation process, Defendant has pointed to no authority recognizing difficulty of application as an exception to the doctrine of issue preclusion. Defendant's objection must be denied.
See, e.g., Restatement (Second) of Judgments § 28 (1982) (setting forth exceptions to the general rule of issue preclusion).
Defendant also argues that if the Defendant is precluded from considering any issue through step four of the sequential evaluation process, Plaintiff is necessarily not disabled based upon his previously determined RFC. The Recommendation and Report finds that the determination that Plaintiff could not perform past relevant work is precluded. It does not provide that the ALJ's 1996 determination of Plaintiff's RFC is binding. Although Defendant is bound by the four issues set forth in the Recommendation and Report, Defendant may determine any other issues, as long as those determinations are not inconsistent with the precluded issues. Defendant's objection is denied.
With regard to the ALJ's 1996 RFC determination, Judge Crow's February 26, 1999 Memorandum and Order deemed it appropriate to remand the case for additional findings, and evidence if necessary, concerning the credibility of the plaintiffs testimony on disabling pain.
Lastly, Defendant disputes the finding in the Recommendation and Report that remand was required only to determine "whether, between March 1, 1979 and March 31, 1985, plaintiff was able to perform other work existing in significant numbers in the local or national economies." 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. Plaintiff filed his application for disability insurance benefits under Title II on January 19, 1994. Therefore, the Court agrees that for any Title II benefits to be payable, Plaintiff must have been disabled at least from March 31, 1985, through January 1993.
Recommendation and Report (Doc. 27), at p. 51.
Additionally, a claimant must show that he was disabled for five full consecutive months. The five-month waiting period begins with a month in which he was both insured for disability and disabled. Therefore, the waiting period can begin no earlier than the 17th month before the month that Plaintiff applied, no matter how long he was disabled before then. See 20 C.F.R. § 404.315(4).
Defendant's objection to the scope of the remand instruction is granted, and all other objections are overruled based on the Court's de novo review, considering the relevant evidence of record. The Court accepts the March 27, 2003 Recommendation and Report (Doc. 26) and adopts it as its own, with the clarification that the case is remanded for a step five determination whether, between March 1, 1979 and March 31, 1985, and continuing through January 1993, Plaintiff was able to perform other work existing in significant numbers in the local or national economies.
IT IS THEREFORE ORDERED that Defendant's Objection to the Report and Recommendation of United States Magistrate Judge (Doc. 27) shall be GRANTED IN PART and DENIED IN PART.
IT IS FURTHER ORDERED that this case be reversed and remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order Adopting Recommendation and Report.
IT IS SO ORDERED.