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Zell v. Astrue

July 31, 2008

DANIEL E. ZELL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

ORDER AND FINDINGS & RECOMMENDATIONS

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons that follow, the court recommends that plaintiff's Motion for Summary Judgment be denied, the Commissioner's Cross Motion for Summary Judgment be granted, and the Clerk be directed to enter judgment for the Commissioner.*fn1

BACKGROUND

Plaintiff was born on June 1, 1946. Plaintiff claims that he has been continuously disabled since November 19, 1975, due to traumatic brain injury, and that previously awarded benefits (from November 19, 1975 to July 31, 1978) were erroneously or unfairly terminated in 1978. (Tr. at 125-26.)

Plaintiff has a long history of applications for social security and supplemental security income disability benefits. The present case stems from this court's remand in regard plaintiff's fourth application, (and his second application for disability insurance benefits). This DIB application, dated December 12, 1994, alleged an onset date of April 5, 1993, and a date last insured ("DLI") of December 31, 1980.*fn2 Therefore, plaintiff had to prove disability prior to his DLI. In response to that application, findings and recommendations were issued on February 27, 2002 in case number Civ.S. 00-125 DFL GGH. That remand was ordered by the district court on April 9, 2002 pursuant to the following instructions:

The Commissioner should make a decision on plaintiff's request to reopen his 1978 cessation of benefits. Even if that decision is made adverse to plaintiff, the Commissioner should review the current disability application (December 12, 1994) after consulting an appropriate specialist(s) who may be able to opine on plaintiff's mental condition during the pertinent time period. Plaintiff should not be precluded by these Findings from producing any further medical evidence that he is able to produce.

Findings and Recommendations, filed February 27, 2002, at 9. After remand and another hearing, ALJ Franklin D. Holder again found plaintiff not disabled.*fn3 (Tr. at 125-36.) In a decision dated February 27, 2003, the ALJ made the following findings:

1. The claimant last met the non-disability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act on December 31, 1980.

2. The claimant engaged in work activity since December 31, 1980, but his posted earnings only advanced his date last insured from September 30, 1980 to December 31, 1980.

3. The claimant alleged additional work activity that should have been covered under FICA wages, but the record does not reflect these additional earnings.

4. From the period beginning August 1, 1978 through December 31, 1980, the claimant had the following severe impairments: a history of a neurological disorder. However, the claimant's impairments considered alone or in combination do not meet the specific severity criteria of any of the listed impairments in Appendix 1 to Subpart P of Regulations No. 4.

5. The claimant's testimony and the documentation submitted did not persuasively establish a basis for reopening the prior denial determination of 1978, and did not persuasively establish debilitating impairments that precluded him from engaging in work activity.

6. The record and the claimant's testimony show that the claimant did, in fact, engage in work activity, much of which was not reported to the Internal Revenue Service and which is not reflected on his earnings record.

7. The claimant's subjective complaints of debilitating impairments prior to his date last insured of December 31, 1980, are not supported by the objective medical ...


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