# Appendix — Brady v. Barnhart > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1019%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2003 - **Citation:** 537 U.S. 1234 ## Text 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 4la 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. 42a 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 43a 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 45a 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 46a 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 47a 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 49a 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 50a 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 S5la (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 52a 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 53a 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 55a 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 57a 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 59a 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 60a 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. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1019%3A2. Public record. Not legal advice.