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Razo v. Astrue

July 31, 2008

EDMUNDO RAZO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

ORDER

The Court hereby adopts the Report and Recommendation ("R&R") of Magistrate Judge Debra Freeman, denies the objections of Social Security claimant Edmundo Razo ("Razo"), remands the matter to the Social Security Administration ("SSA") for a recalculation of Razo's benefits from January 1, 1998, and grants the Commissioner's motion to dismiss in all other respects.

BACKGROUND

I. Factual Background

The occurrence of the injury at issue and subsequent medical history, diagnoses, treatment, and examination are summarized in the R&R. They need not be repeated here, and the Court accepts them as complete and accurate.

II. Procedural History

A. Razo's Original Application for Disability Benefits and 1996 Hearing Before the Administrative Law Judge

On January 19, 1995, Razo applied for disability benefits from December 1994 forward. On May 28, 1996, Administrative Law Judge ("ALJ") Kenneth Levin denied Razo's application, finding that Razo was not entitled to benefits under either Title II or XVI of the Social Security Act. In June 1996, Razo requested an Appeals Council review of the ALJ's denial of his benefits claim, which was denied on November 5, 1997.

B. Razo's Second Application for Benefits and 1999 Hearing Before the ALJ

Razo immediately filed a new application for Title XVI benefits (seeking disability benefits from 1996 forward). This second application was denied twice by the Commissioner before being approved by David Whitney ("Whitney"), an SSA Attorney Advisor authorized to issue approvals as part of a decision-expediting procedure. (Administrative Record ("R") 264.) Whitney concluded that Razo was "totally disabled" as a result of vertigo (R 395), and approved his application for Title XVI benefits retroactive to November 5, 1997. On March 22, 1999, the parties agreed to remand the case so the ALJ could "reconcil[e] the Commissioner's two decisions on [Razo]'s applications for benefits." (R 265.)

On remand, the ALJ reviewed the entire period from December 1, 1994 through the date of the 1999 hearing. The ALJ reopened the 1998 approval by Whitney, compared it to his 1996 ruling, and denied Razo benefits for the entire period from December 1994 to the date of the 1999 decision.

C. Challenge in Federal District Court

Razo moves for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, seeking: (1) an order reversing the final decision or, alternatively, (2) a remand to ALJ Levin to address alleged errors in the ALJ's determination that Razo was not disabled and therefore not entitled to benefits. The Commissioner cross-moves to uphold the final decision, but is prepared to grant benefits to Razo retroactive to January 1, 1998, to remand solely for the purpose of calculating benefits from that date forward.*fn2

The cross-motions were assigned to Magistrate Judge Freeman, who issued a 53-page R&R on January 23, 2008, which thoroughly reviewed the administrative record as well as all of the arguments that Razo now raises again, here challenging both the ALJ's decision and the Magistrate Judge's R&R. The R&R recommended that the Commissioner's decision be upheld and that the matter be remanded solely for the purpose of calculating disability benefits retroactive to January 1998, as urged by the Commissioner. Razo filed timely objections to the R&R on February 11, 2008, and the Commissioner filed a response to those objections on February 29, 2008.

APPLICABLE LAW

I. Eligibility Evaluation Process

A. Application of the Five-Step Sequential Process by the ALJ

Based on the medical testimony, the SSA applied the familiar five-step process mandated by 20 C.F.R. §§ 404.1520 and 416.920 to determine whether Razo, the claimant, was disabled. The ALJ determined the following:

(1) At step one, the ALJ found that Razo had not engaged in any substantial gainful activity since December 1, 1994. (R 278.) (2) At step two, the ALJ found that Razo's post concussion syndrome constituted a "severe" impairment, determining the alleged onset date ("AOD") as December 1, 1994. (R 276.)

(3) At step three, the ALJ found that the impairment did not meet or equal a listed impairment listed in Appendix 1 ...


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