Appendix — Brady v. Barnhart
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Bapreme Dour, U.S
FILED
021068 JAN - 9 2003
No. ___ OFFRGE OF THE CLERK
IN THE SUPREME COURT OF THE UNITED STATES
ROBERT JOHN BRADY,
Petitioner,
JO ANNE B. BARNHART,
Commissioner of the Social Security Administration,
Respondent.
On Petition for a Writ of Certiorari
To the United States Court of Appeals
For the Ninth Circuit
APPENDIX
Robert John Brady
7450 Olivetas Ave., D-342
La Jolla, California 92307-4930
(858) 450-5342
Attorney in Propria Persona
P Bie.
APPENDICES
Opinions, Orders, Findings, etc., Entered in Conjunction
with the Judgment Sought to be Reviewed
A. 9 CIRCUIT ORDER DENYING REHEARING EN
BANC (SEP. 11, 2002)
oe. |
B. MEMORANDUM 9" CIRCUIT (MAY 29, 2002)
AFFIRMING ADMINISTRATIVE
Pes hi kines se secnnck oa bacusiweakdasinddancdinkoid 5a
C. 9™ CIRCUIT ORDER AND MEMORANDUM
DISMISSING COMPLAINT (MAY 17, 2002) ....... 7a
D. 9" CIRCUIT ORDER (NOV. 8, 2001)............00008 9a
E. DISTRICT COURT ORDER ADOPTING REPORT
AND RECOMMENDATION (JUN. 29, 2001)
F. DISTRICT COURT REPORT AND
a PTTL E IEC iri sis snditccunscecasbivnvabscesines 19a
G. SOCIAL SECURITY ADMINISTRATION, FALLS
CHURCH VA OFFICE OF HEARINGS AND
_ APPEALS, REFER TO 480-28-2869, LETTER TO
ROBERT BRADY, DATED MARCH 22, 2000
H. SOCIAL SECURITY ADMINISTRATION, SAN
DIEGO.CA OFFICE OF HEARINGS AND APPEALS,
REFER TO: 280-28-2869, LETTER TO ROBERT
BRADY, DATED NOVEMBER 20, 1997
I. SOCIAL SECURITY ADMINISTRATION, OFFICE
OF HEARINGS AND APPEALS DECISION
PY sey PFT Pac ssnscdnsiccvsteccessentssenscenscsonsseses 47a
J. CONSTITUTIONAL MATERIAL.................004. 62a
K. RELEVANT STATUTORY PROVISIONS........... 64a
LB R ike cccesvcccsivccccnvesssssnsweessssasccvesevcsnsd 65a
APPENDIX
A. 9th Circuit Order Denying Rehearing
en banc (Sep. 11, 2002)
UNITED STATES COURT OF APPEALS
FOR THE NINTH DISTRICT
FILED
SEP 11 2002
CATHY A. CATTERSON
CLERK, U.S. COURT OF
APPEALS
ROBERT JOHN BRADY ) NO. 01-56293
Plaintiff-Appellant )
) D.C. No. CV-00-01029-
vV. ) TTIW
)
JO ANNE B. BARNHART, ) Southern District of
Commissioner of Social ) California, San Diego
Security, )
) ORDER
)
Defendant-Appellee.
Before: FERNANDEZ, RYMER and WARDLAW,
Circuit Judges.
The panel has voted to deny the petition for panel
rehearing.
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. See Fed. R. App. P.
35.
la
The petition for panel rehearing and the petition for
rehearing en banc are denied.
No further filings will be accepted in this closed appeal.
2a
ROBERT JOHN BRADY
Vv.
JO ANNE B. BARNHART,
Commissioner of Social
Security,
APPENDIX
B. Memorandum 9 Circuit (May 29,
2002) Affirming Administrative
Findings.
[NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT
FILED
May 29 2002
CATHY A. CATTERSON,
CLERK
U.S. COURT OF APPEALS
No. 01-56293
Plaintiff-Appellant,
D.C. No.
CV-00-01029-TJW
)
)
)
)
)
) MEMORANDUM
)
)
)
)
Defendant-Appellee.
Appeal from the Unites States District Court for the Southern
District of California Thomas J. Whelan, District Judge,
Presiding
3a
Submitted May 13, 2002*
Before: © FERNANDEZ, RYMER, and WARDLAW,
Circuit Judges.
Robert John Brady appeals the district court’s summary
judgment affirming the Commissioner of the Social Security
Administration’s denial of his application for Title II Social
Security disability insurance benefits. We have jurisdiction
pursuant to 28 U.S.C. § 1291. We review de novo the district
court’s decision, and we review for substantial evidence and
legal error the Administrative Law Judge’s (“ALJ”) decision.
Tackett v. Apfel, 180 F.3d 1094, 1097 (9" Cir. 1999). We
affirm.
The ALJ’s finding that Brady lacked insured status as of
the date he alleged the onset of his disability is supported by
substantial evidence. See Harvel v. Chater, 87 F. 3d 371,
372-73 (9" Cir. 1996).
We decline to consider Brady’s remaining
contentions because he failed to raise these issues before the
ALJ or the Appeals Council. See Meanel v. Apfel, 172 F. 3d
1111, 1115 (9" Cir. 1999).
All pending motions denied.
AFFIRMED.
Jo Anne B. Barnhart is substituted for her predecessors, as
Commissioner of the Social Security Administration, pursuant to Fed. R.
App. P. 43( c)(2).
2 This disposition is not appropriate for publication and may not be
cited to or by the courts of this circuit except a may be provided by 9"
Cir.R. 36-3.
“The panel unanimously finds this case suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
4a
APPENDIX
C. 9» Circuit Order and Memorandum
Dismissing Complaint (May 17, 2002)
JUDICIAL COUNCIL
FOR THE NINTH DISTRICT
FILED
MAY 17 2002
CATHY A. CATTERSON
CLERK, U.S. COURT OF
APPEALS
In re Charge of ) No. 02-89018
)
Judicial Misconduct ) ORDER AND
) MEMORANDUM
)
)
Before: Schroeder, chief Judge
A complaint of misconduct has been filed against “any
or All of the Court of Appeals Judges and Judicial Council of
the Ninth Circuit.” Administrative consideration of such
complaints is governed by the Rules of the Judicial Council of
the Ninth Circuit Governing Complaints of Judicial
Misconduct or Disability (Misconduct Rules), issued pursuant
to the Judicial Councils Reform and Judicial Conduct and
Disability Act of 1980. 28 U.S.C. § 372(c).
Complainant, a pro se litigant, directs his complaint to
“Any or All of the Court of Appeals Judges and Judicial
5a
Council of the Ninth Circuit,” alleging that the courts provide
inadequate notice and employ inadequate means of controlling
records from Social Security Administration appeals. He
contends that the Ninth Circuit is “literally setting up records
in social security disability cases to gain almost automatic
affirmance for the Social Security Administration.”
Complainant fails to see “why a valid request that all records
be transmitted to the Ninth Circuit from the District Court in a
timely manner has been totally ignored.” Additionally, he asks
why such a request is “routinely interpreted to exclude, in a
Social Security case, the vital original administrative record
and many other important records as well.”
Misconduct Rule 2(b) requires specificity in the
statement of facts. By failing to identify the specific judge or
court compiained against, complainant has not complied with
the basic requirements. Moreover, the charges appear pertain
to the actions of the Social Se~-rity Administration staff and
of unidentified district court staff. This complaint procedure
applies only to federal judges. Misconduct Rule 1(d).
Complainant should address issues of missing records with the
appropriate supervisor, such as the clerk of court and, if then
necessary, the chief judge of that court.
COMPLAINT DISMISSED.
/s/
Chief Judge
6a
APPENDIX
D. 9 Circuit Order (Nov. 8, 2001)
UNITED STATES COURT OF APPEALS
Security,
FOR THE NINTH DISTRICT
FILED
NOV 8 2001
CATHY A. CATTERSON
CLERK, U.S. COURT OF
APPEALS
ROBERT JOHN BRADY ) NO. 01-56293
)
Plaintiff- Appellant ) D.C. No. CV-00-1029-
) TIW
v. ) Southern California
)
WILLIAM S. HALTER, )
Commissioner of the Social ) ORDER
)
)
Defendant-Appellee.
Before: KLEINFELD and McKEOWN, Circuit Judges.
William S. Halter is substituted for his predecessor,
Kenneth S. Apfel, as Commissioner of the Social Security
Administration. See Fed. R. App. P. 43(c)(2). The Clerk
shall amend the docket to reflect the substitution shown in the
above caption.
7a
Appellant’s motion to join Chief Justice Louis A.
Lavorato of the Supreme Court of the State of Iowa, as an
indispensable party to this appeal, is denied. No motions for
reconsideration, modification, or clarification of this denial
shall be filed or entertained.
The briefing schedule is reset as follows. Appellant’s
opening brief is due December 12, 2001. The answering brief
is due January 11, 2002; and the optional reply brief is due
within 14 days after service of the answering brief.
In addition to serving a copy of this order on the
parties, the Clerk shall also serve a copy on Chris Odell, Esq.,
Iowa Department of Justice, Hoover State Office Building,
1300 East Walnut Street, Des Moines, Iowa 50319.
8a
APPENDIX
E. District Court Order Adopting Report and
Recommendation (Jun. 29, 2001)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
FILED
JUN 29 2001
CLERK U.S. DISTRICT
COURT
SOUTHERN DISTRICT OF
CALIFORNIA
BY /S/ DEPUTY
ROBERT JOHN BRADY
Plaintiff,
CASE NO.
00-CV-1029 W(JFS)
ORDER ADOPTING
REPORT AND
KENNETH S. APFEL, Acting ) RECOMMENDATION
Commissioner of Social
Security,
ee ee ee ee ee ee ee ee
Defendant.
Plaintiff Robert John Brady (“Plaintiff’*) brought this
motion for reversal and/or remand pursuant to § 205(g) of the
Social Security Act. See 42 U.S.C. § 405(g). Plaintiff seeks
judicial review of the Defendant Commissioner of Social
Security’s (the “Commissioner’”) final decision to deny
Plaintiff's benefits. Defendant filed a cross-motion for
9a
summary judgment. Plaintiff is an attorney proceeding pro se.
Defendant is represented by counsel. The Court decides the
matter on the papers submitted and without oral argument
pursuant to Civil Local Rule 7.1(s.1).
I. PROCEDURAL BACKGROUND
On November 20, 1997 Plaintiff sought disability
insurance benefits which were eventually denied by and
Administrative Law Judge (“ALJ”). On May 19, 2000
Plaintiff filed this action for judicial review under 42 U.S.C.
§§ 405(g)' and 1383(c)(3). On May 23, 2000, this case was
referred to the Honorable James F. Stiven, United Stated
Magistrate Judge, for a Report and Recommendation
(“Report”). On November 1, 2000 Defendant filed a motion
for Summary judgment seeking to affirm the decision for the
ALJ. On December 21, 2000 Plaintiff filed an opposition to
Defendant’s motion for summary judgment and filed a cross-
motion for summary judgment.
On May 2, 2001, Magistrate Judge Stiven issued the
Report advising this Court to deny Plaintiff's motion for
summary judgment and grant Defendant’s cross-motion for
summary judgment. The parties were permitted to filed
objections no later than June 1, 2001. On May 25, 2001 the
Court accepted Plaintiff's objection to the Report as timely.
“Any individual, after any final decision of the
Commissioner of Social Security made after a hearing to which he
was a party...may obtain a review of such decisions by a civil
action... brought in the district court of the United States... The
court shall have power to enter, upon the pleadings and transcript of
the record, a judgment affirming, modifying or reversing the
decision of the Commissioner of Social Security, with or without
remanding the case for a rehearing. The findings of the
Commissioner... as to any fact, if supported by substantial evidence
shall be conclusive...” 42 U.S.C. § 405(g)
10a
Il. LEGAL STANDARD
The duties of the district court in connection with a
magistrate judge’s report are set forth in Rule 72(b) of the
Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1).
The district court “must make a de novo determination of
those portions of the report ... to which objection is made,”
and “may accept, reject, or modify, in-whole or in part, the
findings or recommendations made by the magistrate.” FED.
R. CIV. P. 72(b); United States v. Raddatz, 447 U.S. 667,
676 (1980); see also United States v. Remsing, 874 F.2d
614, 617 (9" Cir. 1989).
(I) ANALYSIS
Having read and considered the papers submitted,
including Plaintiff's objections to the Report, the Court
concludes that the Report presents a well reasoned analysis of
the issues raised by the parties. The Report correctly
determined that Petitioner’s cross-motion for summary
judgment should be denied and Defendant’s motion for
summary judgment should be granted.
A. PLAINTIFF’S OBJECTIONS ARE
IMPROPERLY FRAMED
As a preliminary matter, the Court must address
Plaintiff's failure to provide specific written objections to the
Magistrate Judge’s Report. On May 25, 2001 Plaintiff filed
objections to the Report, but did not specificaily object to any
portion of the Report.
It is well settled under Rule 72(b)* of the Federal Rules
of Civil Procedure that a district judge may adopt those parts
of a magistrate judge’s report to which no specific objection is
? “The district judge to whom the case is assigned shall 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....” FED. R. CIV. P. 72(b) (emphasis supplied).
lla
made, provided they are not clearly erroneous. See Thomas
v. Am, 474 U.S. 140, 153 (1985) (“It seems clear that
Congress would not have wanted district judges to devote
time to reviewing magistrate’s reports except to the extent
that such review is requested by the parties.”). A plaintiff
bears the responsibility of specifically setting forth which of
the magistrate judge’s findings the plaintiff contests. See
FED. R. CIV. P. 72(b). The Ninth Circuit has held that a pro
se litigant’s objection fails when it contains only conclusionary
allegations. See Simpson v. Lear Astronics Corp., 77 F.3d
1170, 1175 (1996) (“[C]ourts of appeals may ... deny
appellate review for failure to object to a magistrate judge’s
legal recommendations on a dispositive motion.”). Sumilarly,
a magistrate’s report in a social security disability benefits
case is entitled to approval where the claimant made broad.
unfocused objections. See Sackall v. Heckler, 104 F.R.D.
401, 402-403 (1984).
In the present case, Plaintiff does not point to any
specific recommendations in the Report that Plaintiff believes
are in error. Instead, Plaintiff broadly argues the issue of his
mental condition. The Report specifically points out that
Plaintiff does not have sufficient quarters of coverage
necessary to be eligible for disability benefits. A quarter of
coverage (QC) is the basic unit of social security coverage
used in determining a worker’s insured status. 20 C.F.R. §
404.140(a). QC Credit is based on earnings paid into social
security. See id. Plaintiff did not have sufficient QC for
disability with the exception of one period from 1958-1968.
(Tr. 55) Unfortunately, Plaintiff did not file a complaint
. Prior to 1977 QC was based on $50 of earnings paid to
Social Security per quarter of a year. After 1977 earnings were reported
annually and apportioned to quarters to qualify for coverage. 20 C.F.R.
§ 404.140(b)(c).
12a
a
within the 12/36 month period as required by statute. See 20
§ C.F.R. 404.320."
Plaintiff engaged in substantial gainful activity from
1973 through 1976.° The resumption of substantial gainful
activity terminates the period of disability and restarts the
clock for coverage requirements. See 20 § C.F.R. 404.130.
Plaintiff does not contest any of these issues, nor could he.
While Plaintiff's objections tangentially touch on the
subject of coverage, Plaintiff does not contest any of the
Magistrate Judge’s findings regarding coverage. In fact,
Plaintiff argues everything but the coverage issue.° Sackall
clearly held that a magistrate judge’s report in a social security
disability benefits case was properly adopted after the
claimant made unfocused objections to the report. Sackall,
104 F.R.D. 401.
This Court likewise finds that Plaintiff's objections have
not met the burden of specificity as a matter of law. The
Report correctly determined that Plaintiff was properly denied
Social Security benefits.
(II) PLAINTIFF’S OBJECTIONS FAIL
ON THE MERITS
. In 1993, Plaintiff filed a claim for disability benefits six
years after Plaintiff's filing deadline had passed. (Tr. 11)
. Substantial gainful activity is determined by the amount of
earnings derived from work activities coupled with numerous other
factors as defined in 20 C.F.R. 404.1574.
F Plaintiff raises numerous issues, including: (1) Mr.
Brady’s commitment by the lowa Court without his knowledge; (2)
whether the commitment decision of the Iowa court should be given full
faith and credit thereby conclusively determining his insanity; and (3)
the application of 42 U.S.C. § § 216(1) and 223 discriminate against the
disabled in violation of the Americans with Disabilities Act which does
not meet its burden as a matter of law.
13a
re
In addition to its procedural shortcomings, Plaintiff's case
fails on the merits. Plaintiff contends that he is entitled to
Social Security Disability Benefits under the Social Security
Act §§ 216(i) and 223. Specifically, Plaintiff claims that he
has sufficient quarters of insurance coverage to warrant an
award of benefits. The Court disagrees.
The eligibility requirements for Social Security benefits
are well established. See 20 C.F.R. §§ 404.315(a)\ 1),
404.320(b)(2). Section 404.130 specifically sets forth the
requirements necessary to establish disability benefits
coverage. There are four different ways in which an
individual can be eligible for disability benefits.
First, “[a]n individual shall be insured for disability
benefits in any month if ... he has not less than 20 quarters of
coverage during the 40 quarter period which ends with the
quarter in which such month occurred.” 20 C.F.R. §
404.130(b); see also Austin v. Shalala; 1995 WL 150056 *2
(N.D. Cal. Mar 28, 1995). Second, if an individual is disabled
before age 31 and has QCs in at least one half of the quarters
during the period beginning with the 21* birthday and ending
with the 31“ birthday, the individual should be insured. See
20 C.F.R. § 404.130(c). Third, a claimant can secure benefits
when a period of disability is established prior to age 31 and
claimant becomes disabled again at age 31 or later.’ See 20
C.F.R.§ 404.320(d). Fourth, statutorily blind individuals also
qualify. See 20 C.F.R. § 404.320(e).
In this case Plaintiff was 62 years old when he first filed
for disability benefits in 1993. Accordingly, Plaintiff only
qualifies for disability benefits if he can meet the 20/40
requirement outlined in the first subsection above. See 20
C.F.R. § 404.130(b). Plaintiff has shown that he has been
GORE 1 oh
: Additionally, Plaintiff has quarters of coverage in at least
one half of the calendar quarters in the period from Plaintiff's 21*
birthday and the period in which the disability begins, up to a maximum
of twenty QCs out of 40. See 20 C.F.R. § 404.320(d).
l4a
disabled at times, but the record also reveals that he has had
gainful employment at various times throughout the past
forty-eight years.’ (Tr. 204-213.) In order to secure
benefits, the social security regulations state: “you must have
at least 20 QCs in the 40 quarter period ending with that
quarter” where the disability starts. 20 C.F.R. § 404.320.
Plaintiff's substantially gainful activity only produced 11 QC’s
in the forty quarter period prior to Plaintiff claiming disability
in 1993. (Tr. 55) Thus, Plaintiff has insufficient quarters of
coverage to qualify and Plaintiff may not collect benefits for
the periods claimed as a matter of law.
(III) CONCLUSION AND ORDER
In light of the foregoing, the Court OVERRULES
Plaintiff's objections and ADOPTS the Report in its entirety.
The Court GRANTS Defendant’s motion for summary
judgment (Doc. No. 11) and DENIES Plaintiff's cross-motion
for summary judgment (Doc. No. 13). The Clerk of Court
shall close the district court case file and terminate this appeal.
IT IS SO ORDERED.
DATE: June 28, 2001
/s/
Hon. THOMAS J. WHELAN —
United States District Court
Southern District of California
CC: ALL PARTIES
. Additionally, Plaintiff has quarters of coverage in at least
one half of the calendar quarters in the period from Plaintiff's 21*
birthday and the period in which the disability begins, up to a maximum
of twenty QCs out of 40. See 20 C.F.R. § 404.320(d).
15a
HONORABLE JAMES F. STIVEN, UNITED
STATES MAGISTRATE JUDGE
l6a
A. APPENDIX
F. District Court Report and
Recommendation
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
FILED
01 MAY-2 PM 12:23
CLERK, U.S. DISTRICT
COURT SOUTHERN
DISTRICT OF CALIFORNIA
BY: DEPUTY
Signed /s/_A. Daniel, Deputy
ROBERT JOHN BRADY,
SSN: 480-28-2869
Case No.
00cv1029-W
REPORT AND
RECOMMENDATION
: (1) AFFIRMING
COMMISSIONER’S
DECISION DENYING
DISABILITY
BENEFITS; (2)
GRANTING
DEFENDANT'S
MOTION FOR
SUMMARY
JUDGMENT [11-1];
AND (3) DENYING
PLAINTIFF’S CROSS-
MOTION FOR
SUMMARY
JUDGMENT [15-1]
Plaintiff,
KENNETH S. APFEL,
Commissioner of Social
Security,
Defendant.
ee ea a a LL Le a a a ee, ee, ee, ae _ ae
17a
bias y
~
(I) INTRODUCTION
Plaintiff Robert John Brady has filed a complaint for
judicial review under § 405(g) of the Social Security Act
(“Act”),” of the Commissioner of Social Security’s final
decision denying his claim for a period of disability and
disability insurance benefits under Title I] of the Social
Security Act, sections 216(I) and 223.'° Mr. Brady sought -
disability insurance benefits and was eventually denied by the
Administrative Law Judge'’ in a decision dated November 20,
1997. On May 19, 2000, Mr. Brady filed the instant
complaint.
On November 1, 2000, Defendant Kenneth S. Apfel,
Commissioner of the Social Security Administration, filed a
motion for summary judgment. Defendant seeks to affirm the
decision of the ALJ. On December 21, 2000, Plaintiff filed an
opposition to Defendant’s motion for summary judgment and
‘ 42 U.S.C. § 405(g) states:
Any individual, after any final decision of the Commissioner of Social
Security made after a hearing to which he was a party . . . may obtain a
review of such decision by a civil action . . . brought in the district court
of the United States... The court shall have power to enter, upon the
pleadings and transcript of the record, a judgment affirming, modifying
or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing. The findings of the
Commissioner . . . as to any fact, if supported by substantial evidence,
shall be conclusive . . .
42 U.S.C. § 405(g) (West 2000).
'° Sections 216(1) and 223 of the Act are codified in 42 U.S.C. §§
416(I) and 423 respectively.
'' The Administrative Law Judge assigned in this case is Edward
Steinman. As noted later in this discussion, Plaintiff also makes a claim
that the ALJ should be excluded because of demonstrated bias.
18a
filed a cross-motion for summary judgment. Defendant filed a
reply to Plaintiff's opposition and an opposition to Plaintiff's
cross-motion on January 5, 2001.
This case was referred to the Hon. James F. Stiven, U.S.
Magistrate Judge, for a report and recommendation by the
Hon. Thomas J. Whelan, U.S. District Judge, on May 23,
2000. Pursuant to Local Rule 7.1(d)(1), this Court took the
motions described above under submission on February 23,
2001, without oral argument. After careful consideration of
the papers, the administrative record, the facts and the law,
this Court FINDS and RECOMMENDS that the
Commissioner’s decision denying disability insurance be
AFFIRMED, that Defendant Apfel’s motion to affirm the
ALJ’s decision be GRANTED and that Mr. Brady’s cross-
motion for summary judgment be DENIED.
(II) PROCEDURAL HISTORY
Mr. Brady filed an application for disability benefits with
the Social Security Administration (“Administration”) on
November 29, 1993. (AR at 43).'° At that time Mr. Brady
stated that he became unable to work on January 1, 1986.
(Id.) That application was denied on the basis that Mr. Brady
did not have enough quarters of insurance coverage under the
Act to obtain disability insured status. (AR at 11)."°
Mr. Brady then filed a request for reconsideration on
January 14, 1994 asserting that the decision was wrong and
that he did have enough quarters of coverage. (AR at 46). In
that request Mr. Brady also claimed that the onset of his
'2 “AR” refers to the Administrative Record prepared and
submitted by the Social Security Administration in this case.
'> See discussion at p. 17-19, infra, for analysis of why Mr. Brady
was not eligible to obtain disability insured status on January 1, 1986.
19a
disability was January 1, 1954 instead of 1968.'* This request
was denied by the Administration on January 25, 1994 for the
same reason Mr. Brady’s original application was denied, i.e.
he was not eligible for disability insurance because he did not
have enough work credits to qualify for coverage as of
January 1, 1954.'° (AR at 49).
On March 23, 1994,Mr. Brady filed a request for a
hearing before an ALJ, stating again that he was in fact
disabled and that he did have enough quarters of coverage to
meet the requirements for disability insurance. (AR at 50).
Mr. Brady then sent several letters to the Social
Security Administration regarding his case. The first was sent
in April 1994, stating that he was waiting for requested
records pertinent to his case and that he was seeking legal
representation. (AR at 57). Another was sent in July 1994
complaining that the Administration would not allow him to
see the file in his case. (AR at 59-61). He then sent a third
letter in April 1995 requesting that the record in his case be
developed regarding his disability status. (AR at 64). The
ALJ responded in September 1995 explaining the issues in the
case and requesting that Mr. Brady inform the Administration
if he intended to proceed with the hearing or have the
determination be made on the basis of the evidence in the
record, without a hearing. (AR at 65-66).
Mr. Brady responded in an undated hand delivered letter
requesting more time to review the ALJ’s letter and claiming
‘* Mr. Brady initially claimed a disability onset date of 1986, but
at some point changed that date to 1968. In all of his later documents
Mr. Brady claims he became disabled in 1954. As noted later in this
report and recommendation, the record reflects that between 1954 and
1986 Mr. Brady had several periods of disability followed by periods
where he engaged in substantial gainful activity.
'* In denying each of these applications, the issue of whether Mr.
Brady was in fact disabled was not addressed. He was denied benefits on
the sole basis that he did not have enough quarters of coverage to qualify
for “insured status.”
20a
that the onset of his disability was in 1955, not 1968. (AR at
67-68). Mr. Brady followed that letter with another again
changing the onset date to the summer of 1954, and
requesting that the Administration obtain records from the
Department of Veterans Affairs regarding his disability status.
(AR at 69-70). Although Mr. Brady sent more letters setting
forth his interpretation of the Social Security statutes, he did
not submit any new evidence regarding his earnings record or
request a correction in his earnings record. (AR at 12).
On October 20, 1995 the ALJ issued an unfavorable
determination, without a hearing, finding that Mr. Brady was
not entitled to disability insurance if the alleged onset date
was either 1986 or 1968.'° If Mr. Brady’s disability onset
date was 1986 the ALJ determined that he did not have
enough quarters of coverage as required under sections 216(I)
and 223 of the Social Security Act, as amended. If Mr.
Brady’s onset date was 1968, while he might have had enough
quarters of coverage at that time, he had engaged in
substantial gainful activity during the period from 1973
through 1976, which would have ended his period of
disability, and he would have been required to apply to
establish a period of disability within 36 months of the
termination of his disability.'" (AR at 76-81). Mr. Brady
appeal this decision to the Appeals Council, claiming that the
ALJ failed to develop the record as to his disability status and
that he had been denied due process. (AR at 167).
On April 16, 1997,'* the Appeals Council vacated the
decision and remanded the case to provide Mr. Brady an
'° Apparently the ALJ found Mr. Brady’s letter claiming an onset
date of 1954 did not operate to amend his earlier assertion.
'’ See discussion of period of disability terminating due to
substantial gainful activity, infra, p. 15-16 and filing deadlines, p. 18.
'® Mr. Brady spent a considerable amount of time between the
earlier denial by the ALJ and his appeal to the Appeals Council
2la
a
eee,
Opportunity to review the evidence in his record and offer oral
testimony at a hearing. (AR at 225-26).
Mr. Brady then requested and received an annual list of
income and employers since 1945. (AR at 137). Mr. Brady
objected to the form of the information, requesting that he
receive the data in “quarters of coverage” format. (Id.) Mr.
Brady also stated that some of the information about his
employment history was incorrect. (Id.)
The ALJ then sent a notice to Mr. Brady on June 18,
1997, advising that a hearing would be held in the case on
July 14, 1997. (AR at 227). Mr. Brady requested and
received a continuance of the hearing, which was rescheduled
to August 22, 1997. (AR at 231). On August 20, 1997, Mr.
Brady delivered a letter stating that his attorney had
withdrawn from his case a week prior to the August 22
hearing and that he was attempting to obtain new counsel. He
further stated that he had a right to be represented at the
hearing and he was entitled to another continuance to obtain
representation. (AR at 235). The hearing was held on
August 22, 1997, as scheduled. Mr. Brady refused to testify
and once again stated that he did not have counsel. The ALJ
then rescheduled the hearing for October 9, 1997, and
informed Mr. Brady that he should obtain representation for
the hearing or appear without representation. (AR at 13).
Prior to this hearing Mr. Brady sent additional
correspondence again requesting information about his
employment records and stating that he was planning to see a
psychiatrist for an evaluation of his medical condition. (Id.)
Later, by an undated hand delivered letter, Mr. Brady stated
that his doctor was awaiting some further records that were
required in order to evaluate his claim, and that he was
attempting to gather information from the Administration regarding his
medical records and his employment record.
22a
unsuccessful in obtaining legal representation.'” Accordingly,
he again requested a continuance of the hearing. (AR at 253-
254).
The ALJ responded on October 1, 1997, denying Mr.
Brady’s request for another continuance. The ALJ informed
Mr. Brady that the only issue to be determined at the hearing
was his insured status, not his disability status. Any evidence
or testimony from his psychiatrist would be irrelevant to the
issue in this case. The ALJ further informed Mr. Brady that
the Administration had no jurisdiction to compel the
attendance of his former attorney. Additionally, the ALJ
requested that Mr. Brady specify his alleged onset date, as it
was not clear from the record which date was to be used in
the evaluation of his claim. (AR at 255-256).
Mr. Brady then sent a letter again requesting a
continuance. His reasons were that his doctor had not had
enough time to prepare for the hearing, he was still waiting
for records concerning his disability status and that an
investigation of the withdrawal of his former attorney was still
pending before the California State Bar. (AR at 266). Mr.
Brady sent another letter to the Administration reiterating his
request for a continuance and adding a request for the
issuance of subpoenas to obtain the testimony of his former
attorney and for documents from the Department of Veteran
Affairs concerning his disability status. In that same letter,
Mr. Brady requested that the ALJ be disqualified from the
case citing bias. (Id.) The ALJ then granted another
continuance and set the hearing for November 18, 1997. (AR
at 291). At that time the ALJ informed Mr. Brady that his
request for subpoenas was denied. (AR at 14).
Mr. Brady continued to send letters claiming that his
former attorney’s testimony was required to demonstrate the
'? Mr. Brady also stated that he was proceeding against his former
attorney with the California State Bar and that the Administration
should compel his former attorney to attend the hearing.
23a
ALJ’s bias, arguing that his medical condition should be
developed in the record, and again requesting that the ALJ be
disqualified. The hearing was held on November 18, 1997.
Mr. Brady appeared without representation and refused to
testify, except for specifying a disability onset date of June
1954. (Id.) The ALJ then issued a decision finding that Mr.
Brady was not insured for disability benefits as of his alleged
onset date of June 1, 1954, and was therefore not entitled to
disability insurance benefits or a period of disability under
sections 216(I) and 223 of the Social Security Act2° (AR at
9-19).
*° In his decision the ALJ articulated the following findings:
(I) l. The claimant has an alleged disability onset
date of June 1, 1954.
(ID) 2. The claimant only earned a total of eight
quarters of coverage in the forty quarters preceding his alleged disability
onset date.
(Il) > The claimant was under the age of thirty-
one at the time of his alleged disability onset date, but he did not earn six
quarters of coverage during the twenty-quarter period preceding his
alleged disability onset date.*
(IV) 4. The claimant did not request a correction in
his earnings record within the time period allowed under the regulations.
(V) 5. The claimant has established that he is
entitled to one additional quarter of coverage during the period of
February through April 1956 for earnings of $224.10, earnings certified
as received by the Railroad Retirement Board.
(VI) 6. The claimant has not established that any
other corrections to his earnings record are appropriate.
(VII) 7. The correction to the claimant’s earnings
record does not affect his disability insured status.
(VII) 8. The claimant does not have enough Social
Security quarters of coverage to be insured for disability.
(IX) 9. The claimant is not entitled to disability
insurance benefits or to a period of disability under the Act.
(AR at 18).
24a
(IIT) FACTUAL BACKGROUND
Mr. Brady was born December 26, 1931. Mr. Brady
entered law school and the United States Marine Corps
Platoon Leaders Program in or about the year 1953. (Cross-
Motion at 9). Mr. Brady claims that during the summer of
1954 he was stricken with schizophrenia while at the officers
candidate program. He claims that he returned to law school
but left during the semester for intensive evaluation and
treatment at a psychiatric hospital. (Id. at 10). Mr. Brady
claims that he had worked at a couple of different jobs off and
on until 1957 when he was again hospitalized. (Id.) On June
29, 1957 Mr. Brady was adjudicated insane and committed by
the Insanity Commission of the BlackHawk County Iowa
Court. (AR at 390). Plaintiff then held various jobs for short
durations over the next thirty or so years. (Cross-Motion at
11).
In 1997, Plaintiff began seeing psychiatrist Robert Paul
Liberman, M.D. (AR at 246). Plaintiff attempted to have Dr.
Liberman testify at his hearing before the ALJ, but his request
was denied on the basis that any testimony concerning his
present disability status was irrelevant to his insured status.
(AR at 255-266). Plaintiff has continually attempted to
develop evidence in the record demonstrating that he in fact
was disabled. These attempts have been consistently denied
for the above reason. (AR at 255-256).
(IV) DISCUSSION
a. Legal Standard
i. 42 U.S.C. 405(g)
*While findings 2&3 are somewhat confusing because Mr. Brady
was only 21 years old in June 1954, the record reflects that he had
earnings at the ages of 14, 15 and 16, but nothing for the next five years.
25a
EE
Section 405(g) of the Social Security Act allows
unsuccessful applicants to seek judicial review of a final
agency decision of the Commissioner. 42 U.S.C. § 405(g)
(West Supp. 2000). The scope of judicial review is limited.
The Commissioner’s denial of benefits “will be disturbed only
if it is not supported by substantial evidence or is based on
legal error.” Brawner v. Secretary of Health and Human
Services, 839 F.2d 432, 433 (9" Cir. 1988) (citing Green v.
Heckler, 803 F.2d 528, 529 (9" Cir. 1986)).
Additionally, Section 405(g) permits a court to enter a
judgment affirming, modifying, or reversing the
Commissioner’s decision. 42 U.S.C. § 05(G). this reviewing
court may also remand the matter to the Social Security
Administrator for further proceedings. Id.
» a Substantial Evidence
Substantial evidence has been defined by the Supreme
Court as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401 (1972) (quoting Consolidated
Edison Co. V. NLRB, 305 U.S. 197, 229 1938). Substantial
evidence consists of more than a scintilla of evidence but less
than a preponderance. Magallanes v. Bowen, 881 F.2d. at
750 (9" Cir. 1989).
(1) The Parties’ Arguments
i. Mr. Brady’s Claims
Mr. Brady argues that the ALJ erred by not developing
the record in his case to demonstrate his disability status.
(Plaintiff's Cross Motion at 14). Specifically, Mr. Brady that
the issue of his disability status was necessary to establish his
onset date, which in turn was necessary.to whether or not he
had enough quarters of coverage. (Id.) Mr. Brady admits
26a
that at the time of the original onset of his disability, June of
1954, he did not have enough quarters of coverage to qualify
for disability insurance. However, he claims that while he has
been disabled, off and on, from 1954 to the present time, at
some point in between he became eligible for disability
benefits by obtaining enough “quarters of coverage”’ to qualify
under the Act. (Id. at 18). Thus, he argues that a later onset
date “must be established when sufficient quarters of coverage
existed for the Plaintiff to be fully insured and disability
insured (using earnings records and medical evidence)” (Id.)
Additionally, Mr. Brady makes several arguments which
this Court determines are not properly brought under a
section 405 g) challenge to a final decision by the
Commissioner of Social Security, and therefore will not
address.”"
ii. Defendant’s Claims
Defendant argues that the ALJ was correct in his
determination that Mr. Brady lacked sufficient quarters of
coverage based upon Mr. Brady’s alleged disability onset date
of June of 1954. Defendant also reiterates the ruling of the
ALJ that Mr. Brady’s present disabled status is not relevant to
the issue in this case, which is Mr. Brady’s insured status.
(Defendant’s Motion at 3).
Defendant also argues that even if Mr. Brady’s case is
analyzed using a later onset date, i.e. the 1968 onset date
which Mr. Brady claimed earlier, and Mr. Brady thereby had
*! Such claims include: Mr. Brady’s commitment by the Iowa
court was a violation of due process guaranteed by the constitution; the
decision by the Iowa court should be given full faith and credit as
required by the constitution thereby conclusively determining his
insanity; 42 U.S.C. §§ 216 (1) and 223 discriminate against the disabled
in violation of the Americans with Disabilities At; and that Social
Security Ruling 82-52 and related Social Security Policy deprives
Plaintiff of due process of law.
27a
enough quarters of coverage to qualify for insured status at
that time, there nevertheless is no basis to remand for further
proceedings. This argument is based upon the ALJ’s earlier
decision denying benefits which found that Mr. Brady’s
disability ceased when he engaged in substantial gainful
activity in 1973. Accordingly, as the ALJ noted, if a disability
ceases prior to a claimant’s application date, the claimant
must file an application for benefits within twelve months after
the period of disability ended.” (AR at 79) Defendant asserts
that under 20 C,F,R, section 404.320(b) (3) that even if r.
Brady was unable to file within twelve months due to his
mental condition, he then had thirty-six months from the
ending of his disability within which to file. Defendant argues
that Mr. Brady did not file in a timely fashion to establish a
period of disability, and therefore could not be entitled to
benefits for that period. In addition, respondent argues that
the ALJ correctly determined that Mr. Brady did not have
insured status at the onset of disability in 1986. (Reply at 3).
Defendant also argues that Mr. Brady was advised of his
right to counsel, and indeed several hearings were postponed
in an effort to allow Mr. Brady to obtain legal representation.
Defendant argues that the Commissioner has no legal duty to
obtain representation on behalf of a claimant. (Id. at 4).
(It) Legal Analysis
® Medical Evidence is irrelevant to Mr.
Brady’s Insured Status.
*? The Court notes that had Mr. Brady applied prior to the
termination of his disability in 1973 he may have been eligible for
benefits for the period beginning in 1968 until he began again engaging
in substantial activity. Since Mr. Brady did not apply for disability
benefits prior to the termination of his disabling condition, he then had
12 or 36 months (see discussion, infra, on filing deadlines, p. 18) to
apply for a period of disability. Had Mr. Brady applied within the
statutory time limit, and succeeded in establishing a period of disability,
the Administration would then have made a determine whether or not
Mr. Brady was entitled to disability benefits for that period.
28a
Initially, the Court must establish whether or not
evidence of Mr. Brady’s disability status was indeed necessary
for the ALJ to determine Mr. Brady’s “insured status.” Social
Security Regulation (SSR) 83-20 states the policy and
describes the relevant evidence to be considered when
establishing the onset date of disability under Title of the Act.
1983 WL 31249 (S.S.A.). j
SSR 83-20 provides that the onset date of disability is
the first day that the individual is disabled as defined in the
Act and the regulations. Id. At *1. Factors relevant to this
determination include the individual’s allegation, the
individual’s work history and medical evidence. Id.
Additionally, the regulation provides that a worker cannot be
found disabled under the Act unless the insured status is also
met at a time when the evidence establishes the presence of a
disabling condition. Id.
In applying the relevant factors to the instant case it
seems that the first two, Mr. Brady’s allegation and work
history, are indeed part of the record and are not disputed by
either party. The third factor, medical evidence, is where the
parties diverge.
The regulation provides that the onset date alleged by
the individual should be used if it is consistent with all of the
evidence available. If there is a discrepancy between the
alleged onset date and the work record or other evide3nce,
the record should be developed to determine the onset date.
Id. at *3. In this case, Mr. Brady’s alleged onset dates are
consistent with his earnings records. Further, Defendant does
not dispute the fact of Mr. Brady’s disability at his claimed
onset date of June 1954.
Additionally, as asserted by Mr. Brady, the regulation
provides that in the case of hospitalized mental patients the
29a
LIN RO Re Se
“Bee ciate acacia i aa,
following should be considered: I) medical evidence in the
form of a medical report by the attending physician; _ ii)
Medical history in a hospital report or form; iii) allegations
by hospital medical staff; and iv) other non-medical sources.
Id. at *4.
Mr. Brady relies on that regulation to demand a review
of medical records. However, the evidence that the
regulations regard as relevant relates to the hospital records of
the claimant where onset of the disability is at issue. Here,
even if Mr. Brady is attempting to establish the onset of or
even the fact of disability, (which is not in dispute for the
relevant periods), he would still not have enough “quarters of
coverage” to qualify for insured status.
Additionally, even if the regulations allow for
consideration of this evidence in the record, it appears that
most of the relevant evidence is already part of the record.
There is at a minimum the hospital report and commitment
papers from the Iowa hospitalization and commitment. (AR
at 380-98). It is also noted that Mr. Brady has not attempted
to add any evidence to the record that concerns his
hospitalization. Notably, Mr. Brady has not claimed that the
ALJ ignor4ed this evidence in making his determination, yet
he continues to request that his current medical condition be
developed as part of the record. It is unlikely that any
evidence of Mr. Brady’s current mental condition will affect
the alleged onset date of more than forty-five years ago, or
any other onset date for that matter. For this reason any
testimony by Mr. Brady’s psychiatrist or other medical
evidence of his current disability status is not relevant to the
determination of the alleged 1954 onset date and, therefore,
the ALJ’s determination that he had not then obtained insured
status.
30a
(1) 2. _Mr. Brady is not Entitled to a
Period of Disability
Mr. Brady next argues that, although he was not insured
as of that onset date, he later became insured, and thereby is
entitled to disability insurance.
The Act Provides that a claimant may apply for a period
of disability. 20 C.F.R. § 404.320.” A claimant may do so
even if he/she was not insured during the period,. Id. This
section is critical to Mr. Brady’s argument. It appears that
Mr. Brady is claiming that although he initially became
disabled in 1954, and was not insured, he worked enough
>The pertinent test of 20 C.F.R. §420.320 provides:
(1) (a) General. A period of disability is a
continuous period of time during which you are
disabled. If you become disabled, you may
apply to have our records show how long your
disability lasts. You may do this even if you do
not qualify for disability benefits. If we
establish a period of disability for you, the
months in that period of time will not be
counted in figuring your average earnings. If
benefits payable on your earnings record would
be denied or reduced because of a period of
disability, the period of disability will not be
taken into consideration.
(II) (b) Whois entitled. You are entitled toa
period of disability f you meet the following
conditions:
(3) You file an application while disabled, or no later
than 12 months after the month in which your period of
disability ended. If you were unable to apply within the
12-month period after your period of disability ended
because of a physical or mental condition as described in §
404.322, you may apply not more than 36 months after the
month of your disability ended.
20 C.F.R. § 404.320
3la
iio
aia ik al
later during certain periods throughout his life that he became
insured and he should therefore be able to establish a period
of disability.” i
Section 216(I)(1) of the Act defines the term disability
as the “inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment ....” 42 U.S.C. § 416(I)(1). This section has
been interpreted to mean that a period of substantial gainful
activity will act to terminate a period of disability.2> This is
important in the instant case because, between 1954 and
1988, Mr. Brady apparently went through at least three
possible periods of disability followed by periods where he
was able to work for a period of years. His disability
allegedly began in 1954 but his earnings were substantial from
1958 through 1967.° He had no earnings from 1968 through
1972, but again had substantial earnings from 1973 until
1976. He again had no earnings from 1977 until 1983. His
earnings over the next five years ranged from approximately
$4,000 in 1983, to under $2,000 in 1984, less than $1,200 in
1985 and less than $500 in each of the next two years. Mr.
Brady’s last reported earnings were $412 in 1988. (AR at
212-13).
. It is thus possible that Mr. Brady was indeed disabled
from 1954 until 1958, again from about 1968 until 1972,
again disabled from 1976 until about 1983, and once again
from about 1986 to the present.
Engaging in substantial gainful activity would, however,
have acted to terminate each of these alleged periods of
| ** See Plaintiff's cross-motion at page 9 n.8.
*° See Sigmon v. Califano, 617 F.2d 41 (4" Cir. 1980); Brown v.
Weinberger, 385 F.Supp. 780, affirmed by 520F.2d 1010 (E.D. Mo.
1974); Smith v. Weinberger, 381 F.Supp. 407, affirmed by 525 F.2d 695
(E.D. Wis. 1974).
76 All references to Mr. Brady’s earnings are found in the Itemized
Statement of Earnings contained in the AR at pages 204-08.
32a
disability. The regulations provide guidelines to assist in
determining whether a claimant has engaged in substantial
gainful activity. 20 C.F.R. § 404.1574. This regulation
provides that the primary consideration in evaluating whether
a claimant is engaging in substantial gainful activity is the
claimant’s earnings as reflected in the Social Security work
record. 20 C.F.R. § 404.1574(a). The regulation also
provides a table with which to compare earnings in any
particular year to determine whether the claimant engaged in
substantial gainful activity. The table provides the maximum
amount a claimant can earn on average per month before the
Administration considers the claimant to have engaged in
substantial gainful activity.*’
According to the record Mr. Brady has worked
sporadically throughout his life. Under the guidelines of 20
C.F.R. § 404.1574, Mr. Brady engaged in “substantial gainful
activity” at various periods in his life between 1955 and 1985.
Contrariwise, there were numerous periods of time during
these same years when he had no earnings or earnings at a
level below that specified to constitute “gainful employment.”
While not exactly clear, it is at least possible that Mr.
Brady would have been entitled to three past periods of
disability: from 1954 to sometime in 1958, from some time in
1968 until he began again engaging in substantial gainful
activity in 1973; and again when he was not working from
about 1977 to some time in 1983. If Mr. Brady had been
entitled to such periods of disability and he had applied for
and was awarded a period of disability, that period would be
excluded from his record in the calculation of a later insured
’Table 1 provides that the average monthly earnings in a period
of work cannot exceed the following amounts:
Pre 1976 $200
(I) 1976 $230
(II) 1977 $240
33a
5 (esieenieneneamanie a pee,
status.”* This is important because if those earlier periods had
been found to be periods of disability, they would be excluded
from the calculation of insured status when counting back
forty quarters from any later onset of disability. Accordingly,
had he previously applied for and received a period of
j disability, he might have had enough quarters of coverage in
1985 or 1986 to qualify for insured status. Accordingly, if
Mr. Brady could now prove that he is still disabled, and he
had previously been awarded a period of disability by the
SSA, he might have been eligible for disability benefits based
on an onset date of 1985 or 1986. However, if Mr. Brady
cannot establish he had received prior periods of disability, he
does not have enough “quarters of coverage’ to qualify for
insured status even if 1985 or 1986 is used as the onset date.”°
The record is clear that no such prior periods of
disability have been declared. The only remaining issue,
therefore, is whether Mr. Brady is now entitled to establish an
earlier period of disability under the Act. In order for Mr.
Brady to establish a period of disability he must apply to the
SSA. 20 C.F.R. § 404.320(a)° The Act is clear on filing
deadlines establishing a period of disability. 42 U.S.C. § 416
(1(2)(F) provides:
**See supra note 15.
*? If Mr. Brady’s onset date was determined to be 1986, the last
year in which he engaged in ‘substantial gainful activity’, and no prior
periods are excluded as periods of disability, he would not have enough
quarters of coverage according to SSA guidelines and Mr. Brady’s
earnings records. Mr. Brady earned nothing from 1977-1982, then
earned four quarters of coverage in 1983 and 1984, and two quarters in
1985. Thus, in the previous forty quarters (1976-1985) he only earned
fourteen quarters of coverage (including four from 1976) and according
to 20 C.F.R. 404.130 a claimant must have at least twenty quarters of
coverage in the forty quarter period ending with the quarter of claimant’s
alleged onset date.
*°This section is the Administration’s published regulation to 42
U.S.C. § 416(i).
34a
[a]n 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 if —
(I) in the case of an application filed by or on
behalf of an individual with respect to a
disability which ends after January 1968,
such application is filed not more than 36
months after the month in which such
disability ended, such individual is alive at
the time the application is filed, and the
Commissioner of Social Security finds in
accordance with regulations prescribed by
the Commissioner that the failure of such
individual to file an application for a
disability determination within the time
specified in subparagraph (E) was
attributable to a physical or mental
condition of such individual which rendered
him incapable of executing such an
application ....
42 U.S.C. § 416 (i) (2) (F) (emphasis added).
Even if Mr. Brady’s last prior period of
disability ended when he again engaged in substantial
gainful activity which would be sometime in 1983 or
1984, and the Commissioner determined that he was
entitled to the thirty-six month statute of limitations
(instead of twelve), he would have had to apply to the
SSA for a period of disability, by the most generous
calculation, by 1986 or 1987. His first application in
this case was in 1993, more than six years after his filing
35a
deadline passed. Any application for an earlier period
of disability would be untimely for the same reasons..°'
Because he has missed these filing
deadlines, Mr. Brady’s alleged prior periods of disability
are not relevant and are not excludable when
determining insured status in 1986. The Commissioner
correctly determined that Mr. Brady was not eligible for
insured status based on the originally claimed 1986
onset date.
In sum, the only way Mr. Brady could now
be eligible for disability is if he was insured when he
became disabled the last time.” The only way Mr.
Brady could have been considered to have enough
quarters of coverage is if he was able to exclude a prior
period of disability from his record. Since the deadline
has passed for any application for a period of disability
in Mr. Brady’s case, he is not entitled to exclude any
such period from his record. The ALJ was therefore
correct in his original finding that Mr. Brady did not
have insured status in 1986.
CONCLUSION AND RECOMMENDATION
Mr. Brady claims that he was disabled due to the onset
of schizophrenia in 1954. Mr. Brady then went through
alternating periods in his life working for a period of time then
not working for a period. Mr. Brady claims that although he
was not insured at the onset of his disability in 1954, at some
point in his life he worked enough to become insured, and
*'For example, if Mr. Brady alleged an onset date of 1954 or
1968, the period of disability would have ended with period of
substantial gainful activity after those dates, and Mr. Brady would have
had three years (or perhaps only one year) after the expiration of his
disability status to apply for a period of disability.
According to Mr. Brady’s own earings record, he had 26
straight quarters of non-coverage from the second half of 1976 through
1982, and, as noted in n. 21, supra, only 10 quarters of coverage in the
12 quarters between 1983 and 1985. (AR at 54).
36a
then was disabled again, and is therefore eligible for disability
benefits under the Act. The thrust of Mr. Brady’s argument is
(1) that the ALJ erred by not allowing medical evidence of
Mr. Brady’s disability to be entered into the record and (2)
that the ALJ erred in determining his insured status. The ALJ
responded that evidence of disability was irrelevant to the
issue of whether or not Mr. Brady was insured at the time of
onset of disability and that he correctly found that Mr. Brady
was not insured at the onset of his disability.
This Court agrees with the ALJ that evidence of Mr.
Brady’s disability is indeed irrelevant to the current
determination. It is undisputed the Mr. Brady was not
“insured” in 1954, and, for the above stated reasons, it is
irrelevant whether Mr. Brady was in fact disabled either in
1968 or in 1986. In either case the application deadline has
passed and he is therefore unable to apply either for disability
benefits or a period of disability under the Act. Furthermore,
the ALJ has determined, and this Court agrees, that even if
Mr. Brady was in fact disabled in 1986, he did not have
enough quarters of coverage to qualify for “insured status.”
After a thorough review of the record, the papers
submitted and the authorities cited therein, and for the reasons
set forth above, this court FINDS that the Administrative
Law Judge’s denial of Therefore, the Court hereby
RECOMMENDS that the decision of the ALJ be
AFFIRMED, Defendant’s motion for summary judgment be
GRANTED, and Plaintiffs cross-motion for summary
judgment he DENIED.
This Report and Recommendation is submitted to the
United States District judge assigned to this case, pursuant to
the provisions of 2B --
U.S.C. § 636(h)(1). Within thirty days after this Report
the Court shall serve a copy on ail parties. The document
should be captioned “Objections To Report And
Recommendation.” A response to the objections shall be
served and filed within ten days after service of the objections.
37a
The parties are advised that failure to file objections within the
specified time may waive the right to raise those objections on
appeal of the Court’s order. -
Dated:
Hon. JAMES F. STIVEN
United States Magistrate Judge
cc: Honorable Thomas J. Shelan
All Counsel of Record
38a
B. APPENDIX
G. Social Security Administration, Falls
Church VA Office of Hearings and
Appeals, Refer to 480-28-2869, Letter to
Robert Brady, Dated March 22, 2000
Mr. Robert Brady
7465 Olivetas Ave., #103
La Jolla, CA 92037-4933
Dear Mr. Brady:
Re: Robert Brady vs. Commissioner of SSA
U.S.D.C. for the Southern District of California
Civil Action Number 95-3958-H
We have considered the reasons you disagree with the
Administrative Law Judge’s decision and all the issues
presented in this case. We have concluded that there is no
basis under the regulations for the Appeals Council to assume
jurisdiction.
Explanation of Our Conclusion
The Appeals Council concluded that your contention, that the
Administrative Law Judge should have “adjourned” the case
after your attorney representative resigned, is without merit.
You were afforded ample time and numerous opportunities to
secure new representation. In addition, the record does not
support your contention that the Administrative Law Judge
displayed any bias toward you. As _ stated by the
Administrative Law Judge, in the hearing decision, evidence
regarding your alleged medical impairment, your former
representative’s resignation, and evidence you wanted secured
through subpoenas by the Administrative Law Judge are not
39a
required to reach a proper decision on the only issue that was
before the Administrative Law Judge, which was whether you
met the disability earnings requirements for entitlement to a
period of disability and disability insurance benefits as of June
1954, the alleged onset of your impairment. The
Administrative Law Judge’s conclusion that the earnings
requirements are not met and that you are not entitled to a
period of disability and disability insurance benefits is
supported by the record and is in accordance with the Social
Security Act and regulations.
What This Action Means
e Under Social Security Administration regulations 20 CFR
404.984(b)(2), the Administrative Law Judge’s decision is
the final decision of the commissioner after remand by the
court. :
e We will prepare a certified copy of the administrative
record and forward it to the United States Attorney for
filing with the court. If you have any questions about the
court case, you may wish to contact the district court.
Sincerely yours,
/s Peter N. Dowd
Peter N Dowd
Administrative Appeals Judge
APPENDIX
H. Social Security Administration, San
Diego.CA Office of Hearings and Appeals,
Refer to: 280-28-2869, Letter to Robert
Brady, dated November 20, 1997.
Robert Brady
7465 Olivetas Avenue, #102
La Jolla, CA 92037
NOTICE OF DECISION - UNFAVORABLE
I have made the enclosed decision in your case. Please read
this notice and the decision carefully.
If You Disagree With The Decision
If you do not agree with my decision, you may file an appeal
with the Appeals Council.
How To File An Appeal
To file an appeal you or your representative, if you choose to
appoint one, must request that the Appeals Council review the
decision. You must make the request in writing. You may
use our Request for Review form, HA-520, or write a letter.
You may file your request at any local Social Security office
or a hearing office. You may also mail your request to the
Appeals Council, Office of Hearings and Appeals, 5107
Leesburg Pike, Falls Church, VA 22041-3255. Please put
the Social Security number shown above on any appeal you
file.
Time To File An Appeal
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To file an appeal, you must file your request for review
within 60 days from the date you get this notice.
The Appeals Council assumes you got the notice 5 days after
the date shown above unless you show you did not get it
within the 5-day period. The council will dismiss a late
request unless you had good cause for not filing it on time.
Time To Submit New Evidence
You should submit any new evidence you wish to the Appeals
Council to consider with your request for review.
How An Appeal Works
Our regulations state the rules the Appeals Council applies to
decide when and how to review a case. These rules appear in
the code of Federal Regulations, Title 20, Chapter III, Part
404, Subpart J.
If you file an appeal, the Council will consider all of my
decision, even the parts with which you may agree. The
Council may review your case for any reason. It will review
your case if one of the reasons for review listed in our
regulations exists. Section 404.970 of the regulations lists
these reasons.
Requesting review places the entire record of your case before
the Council. Review can make any part of my decision fully
or partially favorable or unfavorable to you.
On review, the Council may itself consider the issues and
decide your case. The Council may also send it back to an
Administrative Law Judge for a new decision.
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The Appeals Council May Review The Decision On Its
Own
The Appeals Council can review my decision even without
your request to do so. If it decides to do that, the Council
will mail you a notice about its review within 60 days from the
date of this notice.
If No Appeal and No Appeals Council Review
If you do not appeal and the Council does not review my
decision on its own motion, you will not have a right to court
review. My decision will be a final decision that can te
changed only under special rules.
New Application
You have the right to file a new application at any time, but
filing a new application is not the same as appealing this
decision. If you disagree with my decision and you file a new
application instead of appealing, you might lose some benefi's,
or not qualify for any benefits. My decision could also be
used to deny a new application for insurance benefits, if the
facts and issues are the same. So, if you disagree with this
decision, you should file an appeal within 60 days.
Your Right To Representation In An Appeal
You may have a lawyer or other person help you in ay
appeal you file with the Appeals Council. There are groups
that can help you find a lawyer or give you free legal services
if you qualify. There are also lawyers who do not chaige
unless you win your appeal. Your local Social Security office
has a list of groups that can help you with an appeal.
If you get someone to help you with an appeal, you or tiat
person should let the Appeals Council know. If you lire
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PN —
someone, we must approve the fee before he or she can
collect it. And if you hire a lawyer, we will withhold up to 25
percent of any past-due insurance benefits to pay towards the
fee.
If You Have Any Questions
If you have any questions, you may call, write or visit any
Social Security office. If you visit an office, please bring this
notice and decision with you. The address of the local office
that serves your area is 880 Front Street, Room 1-N-8, San
Diego CA 92188.
Edward Steinman
Administrative Law Judge
Enclosures
APPENDIX
I. Social Security Administration, Office
of Hearings and Appeals Decision (Nov.
20, 1997)
DECISION
IN THE CASE OF CLAIM FOR
Robert Brady Period of Disability and
Disability Insurance Benefits
Social Security Number 480-28-2869
This case is before the Administrative Law Judge upon
remand by the Appeals Council. By order dated April 16,
1997, the Appeals Council vacated the Administrative Law
Judge’s decision dated October 20, 1995, and remanded the
case to the undersigned Administrative Law Judge for further
proceedings.
A supplement hearing was initially scheduled for July 14,
1997. The claimant requested a continuance, which was
granted. A hearing was thereafter scheduled for August 22,
1997, at which the claimant appeared, but refused to testify.
He stated that he was not represented and he left the hearing.
The hearing was continued again and rescheduled for October
9, 1997. Before the hearing date, the claimant again
requested and received a continuance of the hearing date to
obtain counsel. He was notified that the hearing would be
held on November 18, 1997 and that no further continuances
would be granted. A final hearing was held on November
18,1997. The claimant appeared but refused to testify at that
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hearing, repeating that he wished to obtain counsel before
proceeding. The Law Judge has carefully considered all the
documents identified in the record as exhibits, the testimony at
the hearing and arguments presented.
ISSUES, LAWS, AND REGULATIONS
The general issue in this case is whether the claimant is
entitled to a period of disability and disability insurance
benefits under sections 216(i) and 223 of the social Security
Act. The specific issue is whether the claimant has earned
enough quarters of coverage to obtain disability insured
status. Under the Regulations, a claimant is only entitled to
disability benefits and a period of disability if the claimant has
enough social security earnings to be insured for disability (20
CFR 404.315(a)(1), 404.320(b)(2).
In order to be insured for disability, a claimant must meet the
requirements of one of the four rules applied in determining
disability insured status. The first rule requires that the
claimant be fully insured and have earned at least twenty
quarters of coverage in the forty-quarter period ending with
the quarter of the claimant’s alleged disability onset date. If
the claimant is alleging a disability onset date prior to reaching
age thirty-one, the claimant has disability insured status if the
claimant is fully insured, the claimant has quarters of coverage
in a least one-half of the quarters during the period between
the claimant’s twenty-first birthday and the onset of the
claimant’s disability, and the claimant has at least six quarters
of coverage in the twelve-quarter period ending with the
quarter the disability began if the period between the
claimant’s twenty-first birthday and the date of the onset of
the disability is less than twelve quarters. In the third rule, if
the claimant had previously established a period of disability
before reaching age thirty-one, the claimant is insured if the
claimant has quarters of coverage in at least one-half of the
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calendar quarters in the period from the quarter after the
claimant reached age twenty-one through the quarter in which
the later period of disability began, as long as the claimant has
at least six quarters of coverage in the twelve-quarter period
ending with the quarter the claimant’s disability began. The
fourth rule of obtaining disability insured status only applies to
statutory blindness (20 CFR 404.130).
“Fully insured” status for the above-cited rules is met if the
claimant has at least six quarters of coverage and has at least
one quarter of coverage for each calendar year elapsing after
the claimant has reached age twenty-one (or for each year
after 1950, if later) and before the year in which either the
claimant reaches age sixty-two, the claimant’s period of
disability begins, the claimant’s waiting period begins, or the
claimant becomes entitled to disability insurance benefits (20
CFR 404.110, 404.132). In determining a period of quarters
in the rules noted above, any quarter in which the claimant has
established a period of disability is not counted unless the
quarter is the first or last quarter of this period (20 CFR
404.130). In order to establish a period of disability, the
claimant must have applied for and been granted a period of
disability under the Regulations (20 CFR 404.320).
A “quarter of coverage” for years prior to 1978 is credited to
a claimant if the claimant earned a least $50.00 in wages or
was credited with at least $100.00 in self-employment income
during that quarter (20 CFR 404.140(b)). If the claimant was
paid at least $3,000.00 in wages in a calendar year before
1951, the claimant is credited with a quarter of coverage for
each quarter in that calendar year (20 CFR 404.i41(d)). For
years after 1977, a claimant earns a quarter of coverage for
each portion of the year’s income which is equivalent to the
requirements for one quarter of coverage during that year.
For example, if the claimant earned twice as much as the
monetary requirement for a quarter of coverage during a
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specific year following 1977, the claimant earns two quarters
of coverage for that year (20 CFR 404.140 (c)). The
appendix to Subpart B of Part 404 shows the amount needed
for one quarter of coverage for each year following 1978.
When determining a claimant’s insured status and quarters of
coverage, the administration uses the claimant’s record of
earnings. This record is considered evidence of the amounts
of the claimant’s earnings and the periods in which they were
received (20 CFR 404.803(a)). A claimant may request a
correction of an earnings record in writing. The request must
be signed by the claimant and should state the period being
questioned and describe or contain evidence showing that the
record is incorrect (20 CFR 404.820 (b)). Moreover, the
request must be filed within a time limit. The time limit is
three years, three months, and fifteen days after any year in
which the claimant received earnings being contested (20 CFR
404.802). A request is considered filed on the day it is
received by a Social Security office or employee of the Social
Security Administration (404.820 (d)). Once this time limit
has passed, the claimant’s earnings record becomes conclusive
evidence of the claimant’s income and wages (or lack of
income or wages) for the year noted in the record (20 CFR
404.803(c)). Records may be corrected after the time limit
ends, as long as the correction is to comply with a tax return
showing correct wages, the claimant filed a written request
for correction within the time period, the claimant applied for
benefits within the time period, wages were transferred to or
from the Railroad Retirement Board, wages are certified as
earned from the Railroad Retirement Board, an investigation
began before the time period ended, an error is present on the
face of the record, fraud has occurred, or wages are assigned
by court decree (20 CFR 404.822).
PROCEDURAL HISTORY
The claimant filed an application for disability insurance
benefits and a period of disability on November 29, 1993. At
that time, he alleged that he became unable to work on
January 1, 1986 (Exhibit 2). His application was denied on
the basis that he does not have enough quarters of coverage
to obtain disability insured status. The claimant filed a request
for reconsideration, asserting that he does have enough
quarters of coverage. At that time, he also stated that the
onset of his disability was January 1, 1968. (Exhibit 3). His
request was denied, again because he does not have enough
work credits to qualify for benefits. The issue of disability
was not reached (Exhibit 5). He thereafter filed a request for
hearing before an administrative law judge. He stated that he
is disabled and that he has enough quarters to meet the
requirements for disability (Exhibit 6). He was granted
monthly retirement benefits beginning January 1994, after he
reached age sixty-two (Exhibit 17).
The claimant also submitted several letters regarding his case.
He issued one statement in April 1994 stating that he had
requested records from Iowa on his behalf and that he was in
the process of obtaining representation (Exhibit 8). In July
1994, he wrote a letter complaining that he had not been able
to see his file (Exhibit 9). He sent another letter in April 1995
requesting that the record in his case be developed regarding
his disability status (Exhibit 11). The undersigned sent a letter
to the claimant in September 1995, explaining the issues in the
case and requesting that he inform the office if he wished to
proceed with a hearing or have the determination be made on
the basis of the evidence in record (Exhibit 12). The claimant
responded by requesting additional time to review the letter.
In that request, he added that his disability began in the
Summer of 1954, not in 1955. He requested that records be
obtained from the Department of Veterans Affairs regarding
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his disability status, including numerous hospitalizations for
his mental impairment. (Exhibit 14). He later submitted
sections of the Act regarding quarters of coverage for
claimants under age thirty-one, arguing that the provisions in
the Act violate the Fifth Amendment Due Process Clause
(Exhibit 15). He sent another letter in October 1995, arguing
that he had a period of disability before reaching age thirty-
one, even though he admitted that he had never received or
applied for benefits during this period of time. He also
interpreted the Regulations to read that, if a claimant is not
insured when his disability begins, his benefits begin as soon
as he becomes insured, adding that he became disabled in
1954, but has gone through recovery and relapses in his
condition over the last forty years (Exhibit 20). He did not
submit any evidence regarding his earnings record or request a
correction in his earnings record.
On October 20, 1995, the undersigned issued an unfavorable
determination finding that the claimant does not meet the
disability insured status requirements of the Act and is
therefore not entitled to disability insurance benefits or a
period of disability (Exhibit 16). The claimant appealed this
determination to the Appeal’s Council (Exhibit 22). He
argued that he had not been provided with due process and
that his record had not been adequately developed exhibit
(27). On April 16, 1997, the Appeals Council vacated the
decision and remanded the case to provide the claimant with
an Opportunity to review the evidence in his record and offer
testimony at an oral hearing (Exhibit 32).
In the meantime, the claimant requested a copy of his earnings
record and quarters of coverage data listing his employers’
names and his wages (Exhibit 21). The claimant received a
list of the amount of income he received for each year since
1945 and a list of employers (Exhibit 23). He objected to this
information, stating that he wanted a list of quarters of
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coverage he received while working. He also stated that he
worked with the Union Pacific Railroad in Idaho in 1956 for a
short period of time, and that he was in the Marine Corps in
1954. He also said that he worked at the Iowa Department of
Banking in 1961, and that he worked for the State of Iowa’s
Auditor’s Office in 1962 and 1963, but that his earnings
record shows that he worked for the Department of Banking
for the entire period of 1961 to 1963, which is incorrect
according to the claimant. He contended that he had earned
twenty quarters of coverage between 1952 and 1962 (Exhibit
23). The claimant again requested a detailed earnings
statement (Exhibit 27), which he again received, along with
certification of authenticity (Exhibits 29, 30, 31).
The undersigned sent a notice on June 18, 1997 that a hearing
would be held in the case on july 14,1997 (Exhibit 33). The
claimant requested a continuance of this hearing. His request
was granted and the hearing was rescheduled for August 22,
1997 (Exhibit 34). On August 20, 1997, the claimant
delivered a letter stating that he had not yet obtained counsel,
but that he had taken significant steps to do so. The claimant
stated in that letter that Lawrence D. Rohlfing, attorney at
law, was representing him. He stated, though, that Mr.
Rohlfing had withdrawn as his attorney one week before his
hearing. He argued that he had a right to representation and
that the hearing should be postponed to allow him to obtain
representation (Exhibit 35). The hearing was held on August
22, 1997, as scheduled. The claimant refused to testify and
left the hearing, stating that he did not have counsel. The
undersigned informed the claimant at that time that the
hearing would be rescheduled, but that he should obtain
representation or appear with a representative. His hearing
was scheduled for October 9, 1997 (Exhibit 40).
Before this date, the claimant again requested an itemized
statement of his earnings for the period of 1937 through 1996
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(Exhibit 38). -He also submitted a letter in September 1997
stating that he had been attempting to gain information from
the Department of Veterans Affairs and that he planned on
seeing a psychiatrist, Robert Paul Liberman, M.D., for an
evaluation of his mental condition (Exhibit 39). He later
added that Dr. Liberman would be evaluating the claimant as
soon as he obtained records from earlier treatment. He said
that, as a result of the additional information he would be
submitting, he would not be prepared for the October 9, 1997
hearing. Finally, he noted that he asked the State Bar and
Administration to investigate the withdrawal of his attorney
(Exhibit 42).
On October 1, 1997, the undersigned advised the claimant
that the October 9, 1997 hearing would proceed. The
undersigned further advised the claimant that the only issue to
be determined in the case was his insured status, not his
disability status or his former attorney’s actions. The
undersigned also advised the claimant that the Administration
does not have the authority to compel his former attorney,
Mr. Rohlfing, to represent him. The undersigned requested
that the claimant specify his alleged disability onset date, since
the record contains mention of several dates (Exhibit 43).
The claimant wrote another letter dated September 24, 1997
stating that he had requested an earnings statement and that
this request would take six to eight weeks to complete. He
also said that Dr. Liberman had not yet evaluated his mental
status. He provided information regarding records to be
obtained regarding his disability status. F inally, he related that
an investigation was still pending before the State Bar
regarding the withdrawal of Mr. Rohlfing. He therefore
requested a continuance of his hearing date for another six
weeks (Exhibits 44, 46). The claimant also requested that
subpoenas be issued to obtain testimony from Mr. Rohlfing
and for documents from the Department of Veterans Affairs
relating to his disability status. He asked that the undersigned
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be disqualified from hearing the case due to bias he claimed is
evidenced in a standard notice of hearing sent to the claimant
(Exhibit 46). The undersigned granted his request for a
continuance of the hearing, scheduling the hearing for
November 18, 1997. At that time, though, the undersigned
informed the claimant that the hearing would proceed on
November 18, 1997. His request for subpoenas were denied
(Exhibit 45). He was sent a notice of continued hearing on
October 22, 1997 (Exhibit 48).
The claimant has since submitted letters reporting the manner
in which Mr. Rohlfing withdrew, requesting evaluation of his
mental condition, arguing that his medical condition should be
developed, and alleging that the undersigned should be
disqualified from deciding the case and that the testimony of
Mr. Rohlfing would establish bias on the part of the
undersigned (Exhibits 49, 52). At the hearing held on
November 18, 1997, the claimant had not obtained
representation. He refused to proceed in the hearing, stating
that he needed a continuance in order to obtain counsel. He
did not testify at the hearing, but he did confirm that he is
alleging a disability onset date of June 1954.
The undersigned did not provide the claimant with any further
continuances after the November 18, 1997 hearing date. The
claimant was provided with over a three-month period of time
from the date that his attorney withdrew from the case to the
date of the last hearing in November to obtain representation.
He was advised several times that the hearing would proceed
and that he should attempt to obtain counsel. The claimant
indicated at the final hearing that he was trying to obtain
representation from E. Milton Frosburg, attorney at law.
However, no indication existed in the record that Mr.
Frosburg had agreed to represent the claimant. Indeed, Mr.
Frosburg has not provided any suggestion that he has agreed
to represent him. In an attempt to make a timely decision and
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considering that the hearing date has been continued three
times over the course of four months, the undersigned has
thoroughly reviewed all of the claimant’s allegations,
examined the evidence of record, and issued a determination.
EVALUATION OF EVIDENCE AND RATIONALE
The only issue before the undersigned is the claimant’s
disability insured status for purposes of receiving disability
insurance benefits and a period of disability. The claimant
argues that medical records are necessary for the
determination of this case. However, his application for
benefits was denied solely on the basis of a lack of insured
status, rather than his disability status. Indeed, his disability
status was not reached in the initial and reconsideration
determinations in the claimant’s case (Exhibit 3). The only
issue before the undersigned, then, is his insured status and
medical records are not relevant in making this determination.
The claimant has alleged a disability onset date of June 1954.
Under the Regulations, in order to be entitled to disability
insurance benefits, the claimant must have enough social
security earnings to be insured for disability, the claimant must
apply, the claimant must have a disability or have had a
disability that ended within the twelve-month period before
the month in which the claimant applied, and the claimant
must have been disabled for five full consecutive months,
beginning with the month in which the claimant was both
insured for disability and disabled (20 CFR 404.315). In this
case, then, the claimant must establish that he had enough
earnings to be insured for disability and that he was disabled
on the date he states his disability began. If he does not have
enough earnings, he is not entitled to disability insurance
benefits.
As noted above, the claimant must be fully insured and either
(a) have earned at least twenty quarters of coverage in the
forty-quarter period ending with that quarter, (b) have
quarters of coverage in at least one-half of the quarters during
the period between the claimant’s twenty-first birthday and
onset of the claimant’s disability of the claimant is under age
thirty-one, and, if the period between the claimant’s twenty-
first birthday and the date of disability is less than twelve
quarters, have at least six quarters of coverage in the twelve-
quarter period ending with the quarter the disability began, or
(c) have quarters of coverage in at least one-half of the
calendar quarters in the period from the quarter after the
claimant reached age twenty-one through the quarter in which
the period of disability began if the claimant had previously
established a period of disability before reaching age thirty-
one, as long as the claimant has -~at least six quarters of
coverage in the twelve-quarter period preceding the quarter
the claimant’s disability began (20 CFR 404.130). The
claimant did not meet any of these circumstances as of his
alleged disability onset date of June 1954. The claimant’s
earnings record shows that he only received a total of eight
quarters of coverage within the forty quarters of coverage
preceding June 1954. Though he was under thirty-one at that
time (he was only twenty-two years old), he did not earn six
quarters of coverage within the twelve-quarter period
immediately preceding his alleged disability onset date,
thereby failing to meet the requirements for the quarters of
coverage necessary to be insured for disability benefits under
the Regulations(Exhibit 7).
The claimant has argued that he established a period of
disability prior to reaching age thirty-one and that the third
rule of determining insured status should be applied. Yet, the
claimant has never applied for disability insurance benefits or a
period of disability in the past, as he has admitted (Exhibit
20). This rule, therefore, cannot be applied because the
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claimant has not established a period of disability prior to his
thirty-first birthday. Even if applied, the claimant still would
remain uninsured. As noted above, he did not earn six
quarters of coverage within the twelve quarter period
immediately preceding his alleged disability onset date of June
1954, as necessary under 20 CFR 404. 130(d) (Exhibits 7, 23).
Therefore, the undersigned must find that the claimant is not
insured for disability insurance benefits as of his alleged
disability onset date of June 1954 and is therefore not entitled
to disability insurance benefits or a period of disability under
the Act. |
The claimant has argued that his eamings records are
incorrect and should be altered. He has submitted one record
from the Railroad Retirement Board establishing entitlement
to one quarter of coverage in 1956 (Exhibit 53). This
document indicates that the claimant’s earnings record was
incorrect for one quarter in 1956. Under 20 CFR 404.822(d),
his earnings record may be corrected to reflect this data. This
correction has no bearing on the claimant’s insured status for
his alleged disability onset date of June 1954, though, since he
received these earnings in 1956. Yet, he has not requested .
that his record be corrected in any other manner within the
appropriate time limit. He has reported inaccuracies in
earings and employer’s names in his earnings record (Exhibit
23), but he did not request a correction until more than thirty
years had passed since the years in question, far longer than
the time period allowed for correction of an earings record
of three years, three months, and fifteen days (20 CFR
404.802), 404.820, 404.821). Other than the Railroad
Retirement Board earnings, none of the conditions exist for
correcting other items in his record after the time limit passed,
as an error does not appear on the face of the record, no fraud
is apparent in his case, and no tax returns are indicative of
incorrect information (20 CFR 404.822). Further, the
-
s ee
claimant has not established any basis for correcting the
record. The claimant bears the responsibility of providing
evidence to establish eligibility for benefits and for correcting
his earnings record (20 CFR 404.704, 404.821). He has not
established that his earnings record is incorrect other than his
railroad earnings. On the contrary, the name of his employer
in 1962 and 1963 does not affect -his insured status.
Therefore, other than a correction in his 1956 earnings, he has
not established that his earnings record is incorrect.
Moreover, he has not shown that correction of his earnings
record would provide him with disability insured status.
The claimant has alleged other disability onset dates during
the course of this case. He initially stated, for example, that
he was disabled as of January 1, 1986 (Exhibit 3). He has
also alleged a disability onset date of 1955 (Exhibit 13), but
he later asserted that his date was an error and reported an
onset date of June 1954 (Exhibit 14). Considering that the ~
claimant appears to suffer from a severe mental impairment of
schizophrenia and is not represented in this case, the
undersigned has considered his other alleged disability onset
dates as well in order to provide the claimant with a better
understanding of the Regulatory requirements regarding his
insured status, even though this consideration is not biding or
directly relevant to the present determination. Regarding the
claimant’s initial allegation that he became disabled on
January 1, 1986, the claimant was not insured for disability
benefits because he had not obtained twenty quarters of
coverage in the forty quarters preceding this date. He had
orily obtained thirteen quarters of coverage during the forty- —
quarter period preceding this alleged disability onset date. If
asserting, though, an alleged disability onset date of January
1, 1968, his earnings records show that he did have disability
insured status, as he had earned twenty quarters of coverage
within the forty quarters preceding this onset date. Work
' activity following this date may influence a determination
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regarding his disability status, but the undersigned has not
reached any determination or considered this issue for the
reasons cited above (Exhibit 7). After a thorough review of
the relevant evidence of record, the undersigned must find
that the claimant did not have disability insured status as of his
alleged disability onset date of June 1954. Accordingly, he is
not entitled to disability insurance benefits or a period of
disability under the Act.
FINDINGS
After careful consideration of the entire record, the
Administrative Law Judge makes the following findings:
1. The claimant has an alleged-disability onset date of June l,
1954.
. The claimant only earned a total of eight quarters of
coverage in the forty quarters preceding his alleged
disability onset date (20 CFR 404.140 (b), 404.141(d)).
. The claimant was under age thirty-one at the time of his
alleged disability onset date, but he did not earn six
quarters of coverage during the twelve-quarter period
immediately preceding his alleged disability onset date (20
CFR 404.130). :
. The claimant did not request a correction in his earnings
record within the time period allowed under the
Regulations (20 CFR 404.802).
. The claimant has established that he is entitled to one
additional quarter of coverage during the period of
February through April 1956 for earnings of $224.10,
earnings certified as received by the Railroad Retirement
Board (20 CFR 404. 822 (d)).
6. The claimant has not established that nay other corrections |
to his earnings record are appropriate (20 CFR 404.820, |
404.822).
7. The correction to the claimant’s earnings record does not
affect his disability insured status.
8. The claimant does not have enough Social Security
quarters of coverage to be insured for disability (20 CFR
404.130).
9. The claimant is not entitled to disability insurance benefits
or to a period of disability under the Act (20 CFR
404.315, 404.320).
DECISION
It is the determination of the Administrative Law Judge that
the claimant was not insured for disability as of his alleged
disability onset date of June 1, 1954 and is therefore not
entitled to disability insurance benefits or a period of disability
under sections 216(i) and 223 of the Social Security Act.
/s E. Steinman
Edward Steinman
Administrative Law Judge
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APPENDIX —
J. Constitutional Material
Article II. further provides in relevant part:
“Before he enter on the execution of his office, he
shall take the following oath or affirmation: "I do
solemnly swear (or affirm) that I will faithfully execute
the office of the President of the United States, and
will to the best of my ability, preserve, protect and
defend the Constitution of the United States.” U.S.
CONST. art. II, sec. 1, cl. 7
Article VI. also provides in relevant part:
“This constitution, and the laws of the United States which
shall be made in pursuance thereof: and all treaties made, or
which shall be made, under the authority of the United States
shall be the supreme law of the land; and the judges in every
state shall be bound thereby, any thing in the constitution or
laws of any state to the contrary notwithstanding. ” US.
CONST., art. VI, sec. 2.
The Seventh Amendment provides:
“In suits at common law, where the value in
controversy shall exceed twenty dollars, the right of
trial by jury shall be preserved, and no fact tried by a
jury, shall be otherwise reexamined in any court of the
United States, than according to the rules of the
common law. U.S. CONST. amend. VII.
The Fourteenth Amendment provides in relevant part:
“No State shall make or enforce any law which shall
abridge the privileges and immunities of citizens of the
United States; nor shall any state deprive any person
of life, liberty, or property, without due process of
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law; nor deny to any person within its jurisdiction the
equal protection of the laws.” U.S. CONST. amend.
XIV, sec. 1.
The Fourteenth Amendment also provides in relevant part:
“(T]he right to vote at any election for the choice of
Electors for President and Vice-President of the
United States, Representatives in Congress, the
executive and judicial officers of a State, or the
members of the legislature thereof, is denied to any of
the male inhabitants of such State, being twenty-one
years of age, and citizens of the United States, or in
any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall
be reduced...” U.S. CONST. amend. XIV, sec. 2.
The Fourteenth Amendment also provides in relevant part:
“No person shall be a Senator or Representative in
Congress, or Elector of President and Vice-President,
or hold any office, civil or military, under the United
States, or under any State, who, having previously
taken an oath, as a member of Congress, or as an
officer of the United States, or as a member of any
State Legislature, or as an executive or judicial officer
_ of any State, to support the Constitution of the United
States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the
enemies thereof.” U.S. CONST. amend. XIV, sec. 3.
6la
APPENDIX
K. Relevant Statutory Provisions
Relevant statutory provisions are:
5 U.S.C. Sec. 3331 — “Oath of office: An individual, except
the President, elected or appointed to an office of honor or
profit in the civil service or uniformed services, shall take the
following oath:
I, AB, do solemnly swear (or affirm) that I will support and
defend the Constitution of the United States against all
enemies, foreign and domestic; that I will bear true faith and
allegiance to the same; that I take this obligation freely,
without any mental reservation or purpose of evasion; and
that I will well and faithfully discharge the duties of the office
on which I am about to enter. So help me God."
5 U.S.C. Sec. 551 et seq. is reproduced at App., infra,
The relevant provision of the full faith and credit statute, 28
U.S.C. Sec. 1738, provides:
“The records and judicial proceedings of any
court of any such State, Territory or Possession, or
copies thereof, shall be proved or admitted in other
courts within the United States and its Territories and
Possessions by the attestation of the clerk and seal of
the court annexed, if a seal exists, together with a
certificate of a judge of the court that the said
attestation is in proper form.”
APPENDIX
L. Statutes
Sec. 402. - Old-age and survivors insurance benefit
payments
(a) Old-age insurance benefits
Every individual who -
(1)
is a fully insured individual (as defined in section 414(a) of
this title),
(2) i
has attained age 62, and
(3)
has filed application for old-age insurance benefits or was
entitled to disability insurance benefits for the month
preceding the month in which he attained retirement age (as
defined in section 416(1) of this title),
shall be entitled to an old-age insurance benefit for each
month, beginning with -
(A)
in the case of an individual who has attained retirement age
(as defined in section 416(1) of this title), the first month in
which- such individual meets the criteria specified in
paragraphs (1), (2), and (3), or
(B)
in the case of an individual who has attained age 62, but has
not attained retirement age (as defined in section 416(1) of this
title), the first month throughout which such individual meets
the criteria specified in paragraphs (1) and (2) (if in that
month he meets the criterion specified in paragraph (3)),
and ending with the month preceding the month in which he
dies. Except as provided in subsection.(q) and subsection (w)
63a
of this section, such individual's old-age insurance benefit for
any month shall be equal to his primary insurance amount (as
defined in section 415(a) of this title) for such month.
42 U.S.C. Sec. 416(i)
i) Disability; period of disability
(1) '
Except for purposes of sections 402(d), 402(e), 402(f), 423,
and 425 of this title, the term "disability" means
(A)
Inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment
which can be expected to result in death or has lasted or can
be expected to last for a continuous period of not less than 12
months, or
(B)
blindness; and the term "blindness" means central visual
acuity of 20/200 or less in the better eye with the use of a
correcting lens. An eye which is accompanied by a limitation
in the fields of vision such that the widest diameter of the
visual field subtends an angle no greater than 20 degrees shall
be considered for purposes of this paragraph as having a
central visual acuity of 20/200 or less. The provisions of
paragraphs (2)(A), (2)(B), (3), (4), (5), and (6) of section
423(d) of this title shall be applied for purposes of
determining whether an individual is under a disability within
the meaning of the first sentence of this paragraph in the
same manner as they are applied for purposes of paragraph
(1) of such section. Nothing in this subchapter shall be
construed as authorizing the Commissioner of Social
Security or any other officer or employee of the United
States to interfere in any way with the practice of medicine
or with relationships between practitioners of medicine and
their patients, or to exercisé any supervision or control over
the administration or operation of any hospital.
(2)
(A)
The term "period of disability" means a continuous period
(beginning and ending as hereinafter provided in this
subsection) during which an individual was under a disability
(as defined in paragraph (1)), but only if such period is of not
less than five full calendar months’ duration or such individual
was entitled to benefits under section 423 of this title for one
or more months in such period.
(B)
No period of disability shall begin as to any individual unless
such individual files an application for a disability
determination with respect to such period; and no such period
shall begin as to any individual after such individual attains
retirement age (as defined in subsection (1) of this section). In
the case of a deceased individual, the requirement of an
application under the preceding sentence may be satisfied by
an application for a disability determination filed with respect
to such individual within 3 months after the month in which he
died.
(C)
A period of disability shall begin -
(i)
on the day the disability began, but only if the individual
satisfies the requirements of paragraph (3) on such day; or
(ii) 7
if such individual does not satisfy the requirements of
paragraph (3) on such day, then on the first day of the first
quarter thereafter in which he satisfies such requirements.
(D)
A period of disability shall end with the close of whichever of
the following months is the earlier:
65a
(i)
the month preceding the month in which the individual attains
retirement age (as defined in subsection (1) of this section), or
(ii)
the month preceding
(D
the termination month (as defined in section 423(a)(1) of this
title), or, if earlier
(i) u
the first month for which no benefit is payable-by reason of
section 423(e) of this title, where no benefit is payable for any
of the succeeding months during the 36-month period referred
to in such section. The provisions set forth in section 423(f) of
this title with respect to determinations of whether entitlement
to benefits under this subchapter or subchapter XVIII of this
chapter based on the disability of any individual is terminated
(on the basis of a finding that the physical or mental
impairment on the basis of which such benefits are provided
has ceased, does not exist, or is not disabling) shall apply in
the same manner and to the same extent with respect to
determinations of whether a period of disability has ended (on
the basis of a finding that the physical or mental impairment
on the basis of which the finding of disability was made has
ceased, does not exist, or is not disabling).
(E)
Except as is otherwise provided in subparagraph (F), no
application for a disability determination which is filed more
than 12 months after the month prescribed by subparagraph
(D) as the month in which the period of disability ends
(determined without regard to subparagraph (B) and this
subparagraph) shall be accepted as an application for purposes
of this paragraph.
(F)
An application for a disability determination which is filed
more than 12 months after the month prescribed by
subparagraph (D) as the month in which the period of
disability ends (determined without regard to subparagraphs
(B) and (E)) shall be accepted as an application for purposes
of this paragraph if -
(i)
in the case of an application filed by or on behalf of an
individual with respect to a disability which ends after January
1968, such application is filed not more than 36 months after
the month in which such disability ended, such individual is
alive at the time the application is filed, and the Commissioner
of Social Security finds in accordance with regulations
prescribed by the Commissioner that the failure of such
individual to file an application for a disability determination
within the time specified in subparagraph (E) was attributable
to a physical or mental condition of such individual which
rendered him incapable of executing such an application, and
(ii)
in the case of an application filed by or on behalf of an
individual with respect to a period of disability which ends in
or before January 1968 -
(1)
- such application is filed.not more than 12 months after
January 1968, --
(iD)
a previous application for a disability determination has been
filed by or on behalf of such individual
(1)
in or before January 1968, and
67a
(2)
not more than 36 months after the month in which his
disability ended, and
(IIT)
the Commissioner of Social Security finds in accordance with
regulations prescribed by the Commissioner, that the failure of
such individual to file an application within the then specified
time period was attributable to a physical or mental condition
of such individual which rendered him incapable of executing
such an application.
In making a determination under this subsection, with
respect to the disability or period of disability of any
‘ individual whose application for a determination thereof is
accepted solely by reason of the provisions of this
subparagraph (F), the provisions of this subsection (other than
the provisions of this subparagraph) shall be applied as such
provisions are in effect at the time such determination is made.
(G)
An application for a disability determination filed before the
first day on which the applicant satisfies the requirements for a
period of disability under this subsection shall be deemed a
valid application (and shall be deemed to have been filed on
such first day) only if the applicant satisfies the requirements
for a period of disability before the Commissioner of Social
Security makes a final decision on the application and no
request under section 405(b) of this title for notice and
opportunity for a hearing thereon is made or, if such a request
is made, before a decision based upon the evidence adduced at
the hearing is made (regardless of whether such decision
becomes the final decision of the Commissioner of Social
Security).
(3)
The requirements referred to in clauses (i) and (ii) of
paragraph (2)(C) of this subsection are satisfied by an
individual with respect to any quarter only if -
(A)
he would have been a fully insured individual (as defined in
section 414 of this title) had he attained age 62 and filed
application for benefits under section 402(a) of this title on
the first day of such quarter; and
(B)
(i)
he had not less than 20 quarters of coverage during the 40-
quarter period which ends with such quarter, or
(ii)
if such quarter ends before he attains (or would attain) age 31,
not less than one-half (and not less than 6) of the quarters
during the period ending with such quarter and beginning after
he attained the age of 21 were quarters of coverage, or (if the
number of quarters in such period is less than 12) not less than
6 of the quarters in the 12-quarter period ending with such
quarter were quarters of coverage, or
(ii)
in the case of an individual (not otherwise insured under
clause (1)) who, by reason of clause (ii), had a prior period of
disability that began during a period before the quarter in
which he or she attained age 31, not less than one-half of the
quarters beginning after such individual attained age 21 and
ending with such quarter are quarters of coverage, or (if the
number of quarters in such period is less than 12) not less than
6 of the quarters in the 12-quarter period ending with such
quarter are quarters of coverage;
except that the provisions of subparagraph (B) of this
paragraph shall not apply in the case of an individual who is
blind (within the meaning of "blindness" as defined in
paragraph (1)). For purposes of subparagraph (B) of this
69a
paragraph, when the number of quarters in any period is an
odd number, such number shall be reduced by one, and a
quarter shall not be counted as part of any period if any part
of such quarter was included in a prior period of disability
unless such quarter was a quarter of coverage.
Sec. 421. - Disability determinations
42 U.S.C. Sec. 421(a)(1)
a) State agencies
(1)
In the case of any individual, the determination of whether or
not he is under a disability (as defined in section 416(i) or
423(d) of this title) and of the day such disability began, and
the determination of the day on which such disability ceases,
shall be made by a State agency, notwithstanding any other
provision of law, in any State that notifies the Commissioner
of Social Security in writing that it wishes to make such
disability determinations commencing with such month as the
Commissioner of Social Security and the State agree upon,
but only if
(A)
the Commissioner of Social Security has not found, under
subsection (b)(1) of this section, that the State agency has
substantially failed to make disability determinations in
accordance with the applicable provisions of this section or
rules issued thereunder, and
(B)
the State has not notified the Commissioner of Social
Security, under subsection (b)(2) of this section, that it does
not wish to make such determinations. If the Commissioner of
Social Security once makes the finding described in clause (A)
of the preceding sentence, or the State gives the notice
referred to in clause (B) of such sentence. the Commissioner
70a
of Social Security may thereafter determine whether (and, if
so, beginning with which month and under what conditions)
the State may again make disability determinations under this
paragraph.
Sec. 421. - Disability determinations
42 U.S.C. Sec. 421(1)(1)
i) Review of disability cases to determine continuing
eligibility; permanent disability cases; appropriate number of
cases reviewed; reporting requirements
(1) |
In any case where an individual is or has been determined to
be under a disability, the case shall be reviewed by the
applicable State agency or the Commissioner of Social
Security (as may be appropriate), for purposes of continuing
eligibility, at least once every 3 years, subject to paragraph
(2); except that where a finding has been made that such
disability is permanent, such reviews shall be made at such
times as the Commissioner of Social Security determines to be
appropriate. Reviews of cases under the preceding sentence
shall be in addition to, and shall not be considered as a
substitute for, any other reviews which are required or
~ provided for under or in the administration of this subchapter.
42 U.S.C. Sec. 423. - Disability insurance benefit
payments
42 U.S.C. Sec. 423fc]1)(B)
(a) Disability insurance benefits
Definitions; insured status; waiting period
For purposes of this section -
Tila
(1) , ‘
An individual shall be insured for disability insurance benefits
in any month if -
(A)
he would have been a fully insured individual (as defined in
section 414 of this title) had he attained age 62 and filed
application for benefits under section 402(a) of this title on
the first day of such month, and
(B)
(i)
he had not less than 20 quarters of coverage during the 40-
quarter period which ends with the quarter in which such
month occurred, or
(ii)
if such month ends before the quarter in which he attains (or
would attain) age 31, not less than one-half (and not less than
6) of the quarters during the period ending with the quarter in
which such month occurred and beginning after he attained
the age of 21 were quarters of coverage, or (if the number of
quarters in such period is less than 12) not less than 6 of the
quarters in the 12-quarter period ending with such quarter
were quarters of coverage, or
(iii)
in the case of an individual (not otherwise insured under
Clause (i)) who, by reason of section 416(i)(3)(B)(ii) of this
title, had a prior period of disability that began during a period
before the quarter in which he or she attained age 31, not less
than one-half of the quarters beginning after such individual
attained age 21 and ending with the quarter in which such
month occurs are quarters of coverage, or (if the number of
quarters in such period is less than 12) not less than 6 of the
quarters in the 12-quarter period ending with such quarter are
quarters of coverage;
except that the provisions of subparagraph (B) of this
paragraph shall not apply in the case of an individual who is
72a
blind (within the meaning of "blindness" as defined in section
416(i)(1) of this title). For purposes of subparagraph (B) of
this paragraph, when the number of quarters in any period is
an odd number, such number shall be reduced by one, and a
quarter shall not be counted as part of any period if any part
of such quarter was included in a period of disability unless
such quarter was a quarter of coverage.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.