REPORT AND RECOMMENDED DECISION1
1. This action is properly brought under 42 U.S.C. § 405(g) and1383(c)(3). The commissioner has admitted that the plaintiff hasexhausted his administrative remedies. The case is presented as a requestfor judicial review by this court pursuant to Local Rule 16.3(a)(2)(A),which requires the plaintiff to file an itemized statement of thespecific errors upon which he seeks reversal of the commissioner'sdecision and to complete and file a fact sheet available at the Clerk'sOffice. Oral argument was held before me on February 25, 2004, pursuantto Local Rule 16.3(a)(2)(C) requiring the parties to set forth at oralargument their respective positions with citations to relevant statutes,regulations, case authority and page references to the administrativerecord. The plaintiff in this Social Security childhood disability andSupplemental Security Income ("SSI") appeal contends that thecommissioner's decision was barred by the doctrine of collateral estoppeland, in the alternative, that the administrative law judge erred in hisevaluation of the plaintiff's mental impairment, improperly weighedmedical evidence, failed to develop the record fully, failed to complywith the instructions of the Appeals Council following remand, and made acredibility determination that is not supported by the evidence. Irecommend that the commissioner's decision be vacated with respect to SSIbenefits and affirmed with respect to childhood disability benefits.Page 2 In accordance with the commissioner's sequential evaluation process,20 C.F.R. § 404.1520, 416.920, Goodermote v. Secretary of Health& Human Servs., 690 F.2d 5, 6 (1st Cir. 1982), theadministrative law judge found, in relevant part, that the plaintiff hadnot engaged in substantial gainful activity since the alleged onset ofdisability, Finding 2, Record at 22; that he had an impairment orcombination of impairments that was severe but did not meet or equal anylisted in Appendix 1 to Subpart P, 20 C.F.R. Part 404 ("the Listings"),Findings 3-4, id; that his allegations regarding his limitationswere not totally credible, Finding 5, id.; that his residualfunctional capacity was limited by an inability to understand and carryout detailed instructions, Finding 7, id.; that he had no pastrelevant work, Finding 8, id.; that given his age (youngerindividual between the ages of 18 and 44), education (limited), lack oftransferable skills and residual functional capacity, usingRule 204.00 of Appendix 2 to Subpart P, 20 C.F.R. Part 404 ("the Grid") as aframework for decision-making, the plaintiff was not disabled, Findings9-13, id. at 22-23; and that he accordingly was not under adisability as that term is defined in the Social Security Act at any timethrough the date of the decision, Finding 14, id. at 23. TheAppeals Council declined to review the decision, id. at 6-8,making it the final decision of the commissioner,20 C.F.R. § 404.981, 416.1481; Dupuis v. Secretary of Health & HumanServs., 869 F.2d 622, 623 (1st Cir. 1989). The standard of review of the commissioner's decision is whether thedetermination made is supported by substantial evidence.42 U.S.C. § 405(g), 1383(c)(3); Manso-Pizarro v. Secretary of Health & HumanServs., 76 F.3d 15, 16 (1st Cir. 1996). In other words, thedetermination must be supported by such relevant evidence as a reasonablemind might accept as adequate to support the conclusion drawn.Richardson v. Perales, 402 U.S. 389, 401 (1971); Rodriguezv. Secretary of Health & Human Servs., 647 F.2d 218, 222 (1stCir. 1981).Page 3 The administrative law judge reached Step 5 of the sequential reviewprocess. At Step 5, the burden of proof shifts to the commissioner toshow that a claimant can perform work other than his past relevantwork.20 C.F.R. § 404.1520(f), 416.920(f); Bowen v. Yuckert,482 U.S. 137, 146n.5(1987); Goodermote, 690 F.2d at 7. Therecord must contain positive evidence in support of the commissioner'sfindings regarding the plaintiff's residual work capacity to perform suchother work. Rosado v. Secretary of Health & Human Servs.,807 F.2d 292, 294 (1st Cir. 1986). The plaintiff also makes an argumentbased on Step 3, contending that his impairment met a specific Listing.At Step 3, a claimant bears the burden of proving that his impairment orcombination of impairments meets or equals the Listings.20 C.F.R. § 404.1520(d), 416.920(d); Dudley v. Secretary of Health & HumanServs., 816 F.2d 792, 793 (1st Cir. 1987). To meet a listedimpairment, the claimant's medical evidence (i.e., symptoms,signs and laboratory findings) must match those described in the Listingfor that impairment. 20 C.F.R. § 404.1525(d), 404.1528, 416.925(d),416.928. To equal a Listing, the claimant's medical findings must be "atleast equal in severity and duration to the listed findings."20 C.F.R. § 404.1526(a), 416.926(a). Determinations of equivalence must bebased on medical evidence only and must be supported by medicallyacceptable clinical and laboratory diagnostic techniques.20 C.F.R. § 404.1526(b), 416.926(b). Discussion The administrative law judge's opinion notes that [t]he claimant was previously found to be disabled beginning July 1, 1994 based on an application for Supplemental Security Income that he filed on July 29, 1994. He had alleged on that application that his disability began on January 1, 1992. His entitlement to Supplemental Security Income based on that application ended because he was a fugitive convicted felon.[fn2]Page 4Record at 14. The current application was filed on March 27, 2000and alleged an onset date of December 1, 1994, although his claim wasprocessed as if his alleged date of onset were January 2, 1990, theplaintiff's twenty-second birthday. Id. at 13-14. The plaintiff contends that the previous determination of disabilitywas "because of his mental impairments," and that, given the lack of anydetermination that his mental impairments had improved since that time,the doctrine of collateral estoppel applies and he "continued to beeligible for benefits pursuant to the agency's decision of March 16,1995." Plaintiff's Itemized Statement of Specific Errors ("Statement ofErrors") (Docket No. 7) at 10. He cites no authority in support of thiscontention, which would in any event not apply to his claim for childhooddisability benefits. The applicable statute provides: No person shall be considered an eligible individual . . . for purposes of this subchapter with respect to any month if during such month the person is — (A) fleeing to avoid prosecution, or custody or confinement after conviction, under the laws of the place from which the person flees, for a crime, or an attempt to commit a crime which is a felony under the laws of the place from which the person flees. . . .42 U.S.C. § 1382(e)(4)(A). The implementing regulationprovides, in relevant part: If benefits are otherwise payable, they will be resumed effective with the first month throughout which the individual is determined to be no longer fleeing to avoid such prosecution, fleeing to avoid such custody or confinement after conviction, or violating a condition of his or her probation or parole.20 C.F.R. § 416.1339(c). From all that appears in the record,therefore, the plaintiff was entitled to resumption of his SSI benefitsas soon as he presented the document dated March 27, 2000 from the clerkof the Superior Court in New London, Connecticut indicating that thecharges had been resolved. Record at 133.Page 5 At oral argument, counsel for the commissioner argued that the initialphrase of 20 C.F.R. § 416.1339(c) — "[i]f benefits areotherwise payable" — means that claimants whose benefits have been"suspended" must reapply for a new determination of eligibility forbenefits when the claimant is no longer a "fleeing felon," because someother basis for ineligibility may have arisen in the interim.[fn3] Thetitle of 20 C.F.R. § 416.1339 is "Suspension due to flight. . . ."and subsection (b)(1) of that regulation begins "Suspension of benefitpayments." Subsequently, counsel for the commissioner notified the courtthat the commissioner no longer took this position, which reads the word"suspension" out of the regulation, but rather agreed that once aclaimant subject to the "fleeing felon" rule satisfies the commissionerthat he or she no longer has that status, payment of benefits shouldresume. This change in the commissioner's position was not accompanied byany explanation of the fact that the plaintiff in this case wasnonetheless apparently required to re-apply for the benefits which hehad previously been awarded. Counsel for the commissioner also arguedthat the doctrines of estoppel or res judicata could not beapplied in this case because the plaintiff had also filed a newapplication for childhood disability benefits. The fact that theplaintiff filed a new application for an entirely different type ofbenefits has no bearing on the question whether the commissioner wasentitled to require the plaintiff to reapply for SSI benefits and then todeny that application without any evidence of improvement in theplaintiff's inpairments that gave rise to the commissioner's earlierdecision to award such benefits. The fundamental unfairness inherent inthe commissioner's treatment of the plaintiff in this case is obvious;whether it infringes the doctrine of estoppel or that of resjudicata may be a point for fine legal debate, but does not changethe outcome. In Drummond v. Commissioner of Soc. Sec.,126 F.3d 837 (6th Cir. 1997), the court usedres judicata asPage 6the framework for its analysis of a similar situation. In thatcase, the commissioner had in the course of evaluating an earlierapplication filed by the plaintiff determined that she retained aresidual functional capacity for sedentary work. Id. at 838. Indealing with a later application, without finding that her condition hadimproved since the time of the earlier application, the commissionerdetermined that she had a residual functional capacity for medium work.Id. at 839. The court held that "[a]bsent evidence of animprovement in a claimant's condition, a subsequent ALJ is bound by thefindings of a previous ALJ." Id. at 842. Given the language ofthe statute and regulation at issue here, this reasoning applies equallyto this plaintiff With respect to the plaintiff's new claim for childhood disabilitybenefits, he must show that he has been continuously disabled sincebefore he attained the age of 22, on January 2, 1990. Record at 14. Theadministrative law judge "assumed" that, despite average monthly earningsin 1990 that indicated that the plaintiff night have been engaged insubstantial gainful activity in that year and therefore not entitled tobenefits, that work was a series of unsuccessful work attempts, whichwould not deprive the plaintiff of eligibility.[fn4] Id. at14-15. The administrative law judge found that the plaintiff's onlysevere impairments were a cognitive disorder and obesity.[fn5]Id. at 15. Both psychiatric technique review forms completed bystate-agency reviewers in this case indicate that there is insufficientevidence to establish a mental impairment before the plaintiff attainedthe age of 22. Id. at 217, 226, 239. The plaintiff's statementof errors does not address his claim for childhood disability benefitsseparately from his SSI claim, perhaps because thePage 7administrative law judge's opinion bases its denial of that claimon the same finding that provides the basis for denial of his SSI claim— a finding that the plaintiff was not disabled at any time up tothe date of the opinion. However, the administrative law judge did notethe conclusions of the state-agency reviewers that there was insufficientevidence to establish a mental impairment before age 22, id. at18, and, coupled with the lack of medical evidence of a severe physicalimpairment existing before that date, the administrative kw judge'sdecision with respect to eligibility for childhood disability benefitsmay be upheld independently of the outcome with respect to theplaintiff's SSI claim. I will address the plaintiff's other arguments with respect to his SSIclaim for review by the court should it be determined that the plaintiffwas properly required to re-apply for such benefits rather than merelyhaving his previously-granted benefits reinstated. The administrative lawjudge stated at the hearing held after the Appeals Council had remandedthe current claim as follows: What I'm going to find here is that Mr. Nieves met a listing. That's clear from the record. He was severe. He met a 12.05C, continues to meet a 12.05C. The problem is, just like you said, his earnings from 2000 and 2001. I'll have to think about that. So that's how it works. Clearly Mr. Nieves was a 12.05C and continues to be a 12.05C. What muddies the water is — it means, Mr. Nieves, that you was [sic] disabled and you're — we're going to undo all of that except the problem is that we have some muddy waters here. You know, the waters are kind of muddy after you went back to work in 2000 to May 2001. [W]e're taking you back because you're actually disabled under 12.05C.Record at 15-11. Section 12.05 of the Listings deals withmental retardation; subsection C requires "[a] valid verbal, performance,or full scale IQ of 60 through 70 and a physical or other mentalimpairment imposing an additional and significant work-related limitationof function." Yet the administrative law judge in his opinion found thatthe plaintiff's only severe mental impairment was a cognitive disorder,id. at 15; hePage 8found that the plaintiff did not meet Section 12.05(C) of theListings because the administrative law judge was "not convinced" thatthe full scale IQ of 70 found on testing in April 2000 "is valid," andbecause there was no medical evidence of any other impairment thatimposed a significant limitation of function, id. at 19. Thelatter part of this conclusion is inconsistent with the administrativelaw judge's finding of the existence of a cognitive disorder as a severeimpairment. The reports of the state-agency reviewers support theconclusion that mental retardation and a cognitive disorder are separateimpairments. Record at 219-221; 239. Indeed, the psychiatric reviewtechnique form itself lists them separately. Id. at 239. In addition, as the plaintiff points out, Statement of Errors at 3-4,the fact that the administrative law judge found that a severe mentalimpairment existed means that he was required to complete a psychiatricreview technique form or to include the equivalent analysis in hisopinion, 20 C.F.R. § 416.920a(e). Here, no form was completed by theadministrative law judge. The decision shows the plaintiff's significanthistory, as required by the rule, but cannot reasonably be construed assetting forth "the functional limitations that were considered inreaching a conclusion about the severity of the mental impairment," andit certainly does not include "a specific finding as to the degree oflimitation in each of the functional areas described in paragraph (c) ofthis section." The plaintiff is entitled to remand of his SSI claim onthis basis as well. A further problem with the administrative law judge's opinion is that,while it sets forth the medical evidence on the question of theplaintiff's mental impairments in some detail, Record at 16-17, as wellas the conclusions of the state-agency psychiatric reviewers,id. at 18, it does not present any reasons for rejecting theconclusions of all of these individuals that the plaintiff's mentalimpairments imposed limitations more severe than an inability tounderstand and carry out detailed instructions, id. at 20.See id. at 210, 218, 227-29, 240, 246, 248-50. This omission isparticularly perplexing in light of the reason given by the AppealsCouncil for remanding this claim: "The decision does not indicate theweight given to any medicalPage 9opinion," and specifically mentioning the report of MartinMargulis, Ph. D., on the plaintiff's mental impairments. Recordat 289. The record does not contain substantial evidence contradictingthese findings. The plaintiff is entitled to remand on his SSI claim forthis reason as well. The plaintiff also challenges the administrative law judge's failure tocomply in other ways with the instructions of the Appeals Council.Statement of Errors at 9. The remand order instructed the administrativelaw judge to, inter alia, obtain additional evidence concerningthe plaintiff's mental impairments,[fn6] further evaluate his subjectivecomplaints and provide a rationale in accordance with certain regulationsand Social Security Ruling 96-7p, further evaluate the plaintiff's mentalimpairments in accordance with the psychiatric review technique discussedabove, obtain evidence from a medical expert and obtain evidence from avocational expert, if warranted. Record at 290. I have already discussedthe administrative law judge's failure to comply with the thirdinstruction. It appears that he also failed to follow the second andfourth of these specific instructions. However, counsel for the plaintiffhas offered no reason why I should depart from my earlier recommendationon this issue. Even if the administrative law judge had failed to comply with a mandatory directive of the Appeals Council as set forth in the order of remand in a manner that affected his conclusions concerning the plaintiff's claim,. . . the better approach for a reviewing court is to examine the substance of the commissioner's decision for compliance with the Social Security Act and the implementing regulations, rather than to focus on the administrative law judge's compliance with all of the terms of an order of remand from the Appeals Council.Savoy v. Massanari, 2001 WL 1502585 (D. Me. Nov. 26,2001), at *3. At oral argument, counsel for the commissioner contended that theplaintiff was not entitled to SSI benefits because the record shows thathe engaged in substantial gainful activity in 2000 and 2001.Page 10However, the administrative law judge found that the plaintiff "hasnot engaged in substantial gainful activity since the alleged onset ofdisability." Record at 22. The commissioner cannot disavow her ownfinding in an attempt to support her conclusion on appeal. Given the number of reasons for remand of the plaintiff's SSI claimalready discussed, there is no need to reach the remaining issues raisedby the plaintiff — sufficiency of the evidence to support thephysical residual functional capacity assigned by the administrative lawjudge and failure to develop the record further with regard to theplaintiff's credibility. Conclusion For the foregoing reasons, I recommend that the commissioner's decisionas to the plaintiff's claim for childhood disability benefits beAFFIRMED and that the commissioner's decision as to theplaintiff's claim for SSI benefits be VACATED andREMANDED with instructions to reinstate the SSI benefitsawarded to the plaintiff by the commissioner's decision on hisapplication filed on July 29, 1994 as of the date on which thecommissioner was presented with the document that appears in the recordat page 133. NOTICE A party may file objections to those specified portions of amagistrate judge's report or proposed findings or recommended decisionsentered pursuant to 28 U.S.C. § 636(b)(1)(B)for which de novo reviewby the district court is sought, together with a supporting memorandum,within ten (10) days after being served with a copy thereof. A responsivememorandum shall be filed within ten (10) days after the filing of theobjection. Failure to file a timely objection shall constitute a waiver ofthe right to de novo review by the district court and to appeal thedistrict court's order.
2. In fact, it appears that the plaintiff was not a convicted felon,but that a warrant was out for his arrest on certain charges inConnecticut. Record at 68, 72-73, 145-46. That matter was resolved; theplaintiff was not sentenced to any term of incarceration. Id. at133.
3. If some other basis for ineligibility has arisen while thepayment of benefits was suspended, the commissioner has the authority toterminate benefits, after following the appropriate procedures. See,e.g., 20 C.F.R. § 416.204, 416.989, 416.990.
4. However, this assumption appears to be inconsistent with theadministrative law judge's later observation that "[t]he clearestevidence that the claimant has some capacity to work" includes that factthat "[h]e was working during the year in which he attained age 22."Record at 20.
5. At oral argument, counsel for the plaintiff did not identifymedical evidence in the record that would support a finding that anysevere physical impairment existed before January 2, 1990.
6. Counsel for the plaintiff stated at the hearing that this portionof the Appeals Council's directive had been satisfied. Record at 71.