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HAAS v. BOWEN

August 18, 1987

WILLIAM H. HAAS, Plaintiff,
v.
OTIS R. BOWEN, M.D., SECRETARY, HEALTH AND HUMAN SERVICES, Defendant


Sylvia H. Rambo, United States District Judge. J. Andrew Smyser, United States Magistrate.


The opinion of the court was delivered by: RAMBO

This is a social security disability case brought under 42 U.S.C. § 405(g). The case is before the court for a second time. The first time the case was before the court, it was remanded to the Secretary. See Memorandum and Order of June 30, 1986. The Secretary conducted further proceedings and awarded benefits. (Tr. 369-370, 379, 408).

 On October 29, 1986 the court granted the plaintiff's motion to retain jurisdiction over the case so that the plaintiff could challenge the Secretary's determination as to the date his disability commenced. See Document 19. The plaintiff and the Secretary have filed cross-motions for summary judgment. The matter was submitted to a magistrate who subsequently filed a report recommending that plaintiff's motion for summary judgment be denied and the Secretary's motion for summary judgment be granted. Plaintiff has filed exceptions to the magistrate's report. The first three exceptions are a reargument of the issues that were adequately and correctly decided by the magistrate and will therefore not be addressed by the court.

 Plaintiff takes exception to the magistrate's report for not addressing certain issues raised in plaintiff's reply brief to defendant's supplemental brief on the motion for summary judgment. Plaintiff claims that prior determinations must be reopened to correct errors on the face of the evidence. Plaintiff cites the Secretary's regulation at 20 C.F.R. § 404.988(c)(8). Plaintiff argues,

 
. . . the prior determinations in Mr. Haas' case should be reopened to prevent a manifest injustice since, by the evidence, he has clearly been disabled throughout the entire period covered by his serial applications for disability. In addition, there are elements of clear error in the record which further justify reopening of the prior determinations.

 Plaintiff's Reply Brief at 24.

 Plaintiff does not identify what evidence shows that "he was clearly disabled throughout the entire period. . . ." He states that Mr. Payne's psychological report supports this contention and the ALJ failed to give importance to the report. The August 25, 1986 report does state "all his dissatisfactions, resentments, and inner struggles all seem to come together in an overwhelming manner when his wife left him in October of 1976 . . . (Tr. 688). This does not support plaintiff's contention that he was "clearly disabled throughout the entire period. . . ."

 Plaintiff further argues that the first hearing should be reopened because counsel failed to appeal and the second hearing should be reopened because he did not have counsel and the ALJ failed to develop the record. The only thing plaintiff points to in support of this latter conclusion is a claim the ALJ did not take the testimony of plaintiff's wife and mother except in a perfunctory manner. (Plaintiff's Brief at 25.) The ALJ permitted both individuals the opportunity to expand upon plaintiff's testimony. They were not interrupted. Plaintiff's claim is without merit.

 Plaintiff further claims that 42 U.S.C. § 405(g) requires that the prior determinations be reopened. Plaintiff argues that because Dr. Payne's diagnosis was based on plaintiff's history and events which happened to him during the course of his life, a mental impairment can be related back to 1977. As noted above, Dr. Payne did point to significant events in plaintiff's life in 1976-1997, he did not state that plaintiff was precluded from employment during that period of time.

 Plaintiff's last argument is that the ALJ decision of September 11, 1986 was a de facto reopening of the prior claims. At page 404 of the transcript the ALJ specifically stated that he was not reopening the prior applications. He found that reopening the first application was barred due to administrative finality, and that good cause did not exist for reopening any of the applications. Plaintiff argues that testimony about plaintiff's employment history, discussions of events pre-1983, and questions presented to the vocational expert concerning a vocational profile given in a 1984 hearing in determining the merits of this case, has in effect opened the prior decisions. Prior work history is important in reaching a determination of disability at a present time. 20 C.F.R. 404.1520(e). Plaintiff's exceptions are without merit.

 REPORT OF MAGISTRATE

 J. ANDREW SMYSER, United States Magistrate.

 This is a social security disability case brought under 42 USCS § 405(g). The case is before the court for a second time. The first time the case was before the court, it was remanded to the Secretary. See Memorandum and Order of June 30, 1986. The Secretary conducted further proceedings and awarded benefits (Tr. 369-370, 379, 408).

 On October 29, 1986, the court granted the plaintiff's motion to retain jurisdiction over the case so that the plaintiff could challenge the Secretary's determination as to the date his disability commenced. See Document 19. The plaintiff and the Secretary have filed cross-motions for summary judgment. The motions have been briefed and are ripe for disposition.

 The plaintiff initially filed an application for disability insurance benefits on November 23, 1978, alleging disability as of September 1, 1977 due to a degenerated spine (Tr. 104-107). The application was denied initially and upon reconsideration (Tr. 108-112). A hearing was held before an administrative law judge (ALJ). In a decision dated August 19, 1979, the ALJ found the plaintiff not to be disabled. In a decision dated November 19, 1979, the Appeals Council declined to review the ALJ's ...


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