Opinion
Case No. 01-1151-JAR
September 9, 2002
MEMORANDUM AND ORDER ADOPTING RECOMMENDATION AND REPORT
The Commissioner of Social Security denied Plaintiff's application for supplemental security income payments. Plaintiff sought review of the Administrative Law Judges's (ALJ) decision and the Honorable John Thomas Reid issued a Recommendation and Report which found that the decision of the Commissioner should be reversed, and that the case should be remanded: to obtain the disability records of the Plaintiff from the state of California; and to take into consideration and note in the ALJ's opinion the impact of obesity in accordance with SSR 00-3p and 20 C.F.R. Pt. 404, Subpt. P, App. 1, 1.00(F). The matter is currently before the Court upon Defendant's Objection to Magistrate Judge's Recommendation and Report (Doc. 14).
The standards this Court must employ when reviewing objections to the recommendation and report are clear. Only those portions of the recommendation and report that Defendant has specifically identified as objectionable will be reviewed. The review of those identified portions is de novo and the Court must "consider relevant evidence of record and not merely review the magistrate judge's recommendation."
See Garcia v. City of Albuquerque, 232 F.3d 760, 767 (10th Cir. 2000); Gettings v. McKune, 88 F. Supp.2d 1205, 1211 (D.Kan. 2000).
See Griego v. Padilla, 64 F.3d 580, 584 (10th Cir. 1995) (citation omitted).
In the file is a statement from the Employment Development Department of Fresno, California (R. at 68). The form states that Plaintiff received a disability check for the time period of July 8, 1999 through July 17, 1999. It further indicates that this was the last check Plaintiff could receive because his benefits were exhausted. No other information on that disability determination is contained in the file. Defendant objects to the Magistrate Judge's finding that, based upon Baca v. Dep't of Health Human Servs., the ALJ had an obligation to consider the disability determinations of other federal or state agencies and should have made reasonable efforts to obtain the records from the California agency. In Baca, the court held that the ALJ should have considered a VA disability rating in making its decision. The court noted that "[a]lthough findings by other agencies are not binding on the Secretary, they are entitled to weight and must be considered." Defendant argues that Baca is distinguishable.
5 F.3d 476, 479-80 (10th Cir. 1993).
Id. at 480.
Id. (citation omitted).
Defendant tries to distinguish Baca by stating that in the present case, Plaintiff is not insured for Title II benefits and has filed for Title XVI benefits; therefore, there is no date last insured on or before which Plaintiff must be found disabled. Even if Plaintiff is disabled and has been disabled for a long time, Title XVI supplemental security income (SSI) benefits may not begin prior to the month following the month he filed his application (August 1999). The California form is dated July 20, 1999, and indicates that it was Plaintiff's final payment. Thus, Defendant argues, any medical evidence in the California agency's file would reflect Plaintiff's condition prior to the relevant period. Plaintiff alleged his disability began on August 15, 1998, which is prior to the July, 1999 date when Plaintiff received a disability check from the State of California. The disability determination by California is therefore well within the time frame of disability at issue. Furthermore, Plaintiff filed his application for supplemental security income payments on July 26, 1999, nine days after the disability period on the California form.
See 20 C.F.R. § 416.335.
Defendant also argues that unlike Baca, in this case, the Agency did not lose prior files holding medical evidence of a relevant period. The ALJ has a basic duty of inquiry to fully and fairly develop the record as to material issues. This duty exists even when the claimant is represented by counsel. Although the duty is "especially compelling when it is the SSA which, in part, is responsible for the lack of medical evidence regarding the relevant time period," the duty still exists even if the Agency did not lose prior files. In Richter v. Chater, the record regarding the claimant's VA disability pension was scant and incomplete. Noting that the ALJ did not follow up with any inquiries or requests for additional information about the disability proceedings, the court held that on remand, the Commissioner must make every reasonable effort to obtain the records from the VA.
Baca v. Dept. of Health Human Servs., 5 F.3d 476, 479-80 (10th Cir. 1993) (citations omitted).
Id. at 480 (citation omitted).
Id. (citation omitted).
900 F. Supp. 1531,1538 (D.Kan. 1995).
Id. at 1539 (citation omitted); see also Dreiling v. Massanari, 2001 WL 1155270, *6 (D.Kan. 2001) (remanding for consideration of a VA disability rating and noting that "[t]his may require the ALJ to determine the factual basis and medical evidence on which the VA's finding of disability was made") (citations omitted); Weers v. Barnhart, 2002 WL 69512, *5-6 (D.Kan. 2002) (finding that where the ALJ did not have any of the findings or evaluations upon which the VA based its rating, on remand the Commissioner shall make every reasonable effort to obtain those records and reconsider his decision in light of those records).
Defendant also points out that: there was no meaningful information on the form that indicated Plaintiff's impairments or the severity of those impairments; there was no rating or "opinion" about Plaintiff's disability expressed on the form; and one should assume that any evidence obtained would only duplicate the California evidence already in the record. That is the problem. The form is not self-explanatory, and without further evidence only assumptions can be made. Therefore, further inquiry is necessary. The Court overrules the Defendant's objection.
Defendant also objects to the Magistrate Judge's finding that the ALJ should "make clear at step three and in determining residual functional capacity the impact of plaintiff's obesity . . . Specifically, . . . what impact plaintiff's obesity has on plaintiff's musculoskeletal impairments."
At step three, the ALJ stated the following:
At the third step in the sequential evaluation process, the undersigned must determine whether any of the claimant's impairments meets the criteria of a listing in Appendix 1 to Subpart P of the Regulations Part 404 (the Listing of Impairments) or if any of the claimant's impairments, either singly or in combination, is equivalent in severity of any listing. Although severe, the claimant's physical impairments do not meet or equal the severity of any of the listed impairment[s] set forth in Appendix 1. Although the claimant has some degenerative changes of the spine, the impairments are not objectively positive for sensory and neurological deficits including the requisite loss of motor function or reflexes nor the muscle weakness or radiculopathy as noted in section 1.00. The claimant is overweight; however, his obesity condition does not significantly impact other areas of function such as respiratory or cardiovascular.
In determining equivalency, the Regulations limit the undersigned to considering medical facts alone ( 20 C.F.R. § 416.926(b)). They are considered to indicate a degree of impairment as will preclude a person from engaging in "any gainful activity" ( 20 C.F.R. § 416.925). No treating or lower level evaluating source has posited that the above non-listing level findings, either in combination or in light of other non-listed medical indicators, impose a level of debilitation which meets or equals any of those specified.
The Court has considered the relevant evidence of record and agrees with the Magistrate Judge's finding that the decision of the ALJ is somewhat ambiguous on whether he did consider obesity in regards to Plaintiff's musculoskeletal impairments at step three and in determining residual functional capacity.
Defendant's objections are overruled and the Court accepts the March 29, 2002 Recommendation and Report and adopts it as its own.
IT IS THEREFORE ORDERED that Defendant's Objections to Magistrate Judge's Recommendation and Report (Doc. 14) shall be OVERRULED.
IT IS FURTHER ORDERED that the decision of the Commissioner be reversed and this case be remanded pursuant to the fourth sentence of 42 U.S.C. § 405(g) for further proceedings in accordance with this Memorandum and Order Adopting Recommendation and Report.
IT IS SO ORDERED.