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Larocque v. Astrue

August 29, 2008

FANNY PATRICIA LAROCQUE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff Fanny Patricia Larocque ("Plaintiff"), brings this action pursuant to the Social Security Act § 216(I) and § 223, seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), finding her eligible for Supplemental Security Income ("SSI") benefits only as of October 27, 2004. Specifically, Larocque alleges that the decision of the Administrative Law Judge ("ALJ") Thomas Mancuso was erroneous because plaintiff's Disability Insurance Benefits ("DIB") and SSI benefits should have been reinstated in accordance with Title II and Title XVI of the Social Security Act.

The Commissioner moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, on the grounds that the ALJ's decision was supported by substantial evidence. Plaintiff opposes the Commissioner's motion and cross-moves for judgment on the pleadings, or in the alternative for the case to be remanded. For the reasons discussed below, the Commissioner's motion for judgment on the pleadings is granted and the Plaintiff's cross-motion is denied.

BACKGROUND

A. Procedural History

In October 1995, Plaintiff filed for and was awarded SSI benefits due to her bipolar disorder. Plaintiff received SSI benefits until January 1999 when her medical condition improved and she was capable of returning to substantial gainful employment. The record shows that she stopped working on August 15, 2000. On March 7, 2001, Plaintiff claims she filed a dual application for DIB and SSI under Tile II and Tile XVI respectively before the Social Security Administration. (Tr. 255-263).*fn1 On October 22, 2001, claiming that her symptoms had worsened, Plaintiff filed an application solely for DIB alleging disability since August 15, 2000 (Tr. 12, 60-62). Plaintiff's October 2001 application was initially denied (Tr. 22-26). She then filed a request for a hearing, and on October 21, 2004, a hearing was held before ALJ Thomas J. Mancuso (Tr. 264-295). A previous hearing was held on April 20, 2004. However, because the ALJ could not find records of Plaintiff's March 2001 filing and proof that Plaintiff's application was for both DIB and SSI benefits, the hearing was postponed to October 2004. (Id.)

In the October 2004 hearing, the Commissioner could still not find proof that Plaintiff's March 2001 application was for both Title II and Title XVI benefits. Ultimately, at the ALJ's request, Plaintiff filed another application for SSI benefits, which was immediately escalated to the hearing level (Tr. 250-252). The hearing transcript dated October 21, 2004 shows that the ALJ advised Plaintiff that she should file an application for SSI benefits on a protective basis (Tr. 293-294). On December 21, 2004, the ALJ found that Plaintiff was not disabled on or before December 31, 2000, and that she was only eligible for the SSI benefits as of October 27, 2004 (Tr. 12-17). This became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on April 13, 2006 (Tr. 3-5). This action followed.

B. Medical History

The Plaintiff referred herself back to the Niagara County Adult Mental Health Clinic in March 2001. The admission note by Dr. Y.H. Bae, consulting psychiatrist, indicates that the Plaintiff referred herself back to the clinic after a two year absence and had been working at the Dale Association as a minority outreach worker. Although she experienced a very good recovery from a major depressive disorder, and was off SSI, the death of her son, Shannon, along with the around-the-clock care responsibilities of family members "finally got to her." In describing her mental status, the doctor concluded "the above presentation is essentially a carbon copy of her initial opening back in 1997." (Tr. 160) Her admission note to the outpatient program at Buffalo General Hospital on November 4, 2002 acknowledged that she had recently been discharged from the psychiatric unit at Niagara Falls Memorial Medical Center for treatment of depression. "She has had several losses in her life and is processing unresolved grief issues . . . most significant is the death of her 20 year old son." She was diagnosed with major depression. (Tr. 164) Dr. Dhingra, consulting psychiatrist, on September 24, 2002 diagnosed her with major depression, recurrent complicated bereavement and restarted her on Prozac and Trazodone. The admission note in a Niagara Falls Memorial Medical Center inpatient information dated August 6, 2002 stated "Medical precautions: axis I: Major Depression Recurrent -rule out post traumatic stress disorder." The same document indicated that Plaintiff is "depressed, suicidal, [had] multiple deaths recently [as] stressors." (Tr. 191) She was discharged and would return to Lockport Adult Mental Health Clinic for follow-up. She was given a month's supply of Prozac, 40 mg a day. (Tr. 197.) In a psychiatric evaluation by Dr. Dhingra, dated March 20, 2003, he stated that Plaintiff's major depressive episode began in June 2002. Further, Plaintiff was hospitalized for psychiatric issues in August 2002. However, she has been in and out of outpatient mental health treatment since 1995. She received permanent disability for major depression in the past. (Tr. 205) Plaintiff's diagnosis is recurrent major depression. For instance, Plaintiff has missed several appointments due to vegetative symptoms of depression. (Tr. 206)

I. Plaintiff is not Entitled to have her Benefits Reinstated Under C.F.R. §416.999a for Period Earlier than October 27, 2004

Section 416.999 concerns the reinstatement of Social Security benefits for individuals who were previously eligible but were financially disqualified from receiving their benefits due to earned income. See 20 C.F.R. §416.999a. To qualify for reinstatement of benefits, an individual must timely file a written request under Section 416.999b, after January 1, 2001 and within 60 months of the termination of original benefits. See Id. In addition, an individual must certify that she is disabled and unable to do substantial gainful activity because of her medical condition. Furthermore, to qualify for reinstatement of benefits under Section 416.999, the individual's current impairment must be the same or related to the impairment that was used as the basis for the eligibility she is seeking to have reinstated. See C.R.F. §416.999b.

Plaintiff argues that her case should have been considered as one for reinstatement of benefits pursuant to § 416.999 of the regulations which deals specifically with reinstatement of SSI benefits. While Plaintiff claims that Plaintiff filed a dual application for DIB and SSI benefits in March 2001, Plaintiff has been unable to provide proof that any application for SSI was filed on or before March 7, 2001. The only application that was considered by the Commissioner was the October 21, 2001 application filed by Plaintiff. The October 2001 application was specifically for DIB and not SSI. There is no other evidence in the record that Plaintiff filed any other application for SSI benefits from 2001 through 2004. This is problematic for Plaintiff since Plaintiff's October 2001 DIB application would fall under Title II of the Social Security Administration guidelines and not the reinstatement benefits of SSI under Title XVI and 20 C.F.R. §416.999.

On October 27, 2004, at the ALJ's request, Plaintiff filed another application for SSI benefits. At the hearing, the ALJ advised Plaintiff that she should file an application for SSI benefits on a protective basis (Tr. 293-294). The ALJ found that as of October 27, 2004, Plaintiff had been disabled and eligible for SSI benefits. However, the earliest month for which SSI benefits can be paid is the month following the month in which the application was filed. See 20 C.F.R. ยง 416.999d(a). Accordingly, the ALJ's finding made Plaintiff eligible for SSI at the earliest possible time based on her October 27, 2004 SSI application. While Plaintiff argues that her DIB application filed in 2001 must be deemed to have been an application for expedited ...


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