MANSER v. BARNHART

JOHN ROBERTS, Magistrate Judge

The court has now before it a motion for summary judgment pursuant to Fed.R.Civ.P. 56[c] by the plaintiff, Mr. Howard Manser. (Docket No. 14). Said motion is opposed by the defendant, Joanne Barnhart, Commissioner Of Social Security, (the Commissioner) at docket No. 19; Manser's reply at docket No. 20. Oral argument has not been requested and is not deemed necessary to the disposition of the motion. This is an appeal from a decision by the Commissioner to terminate social security disability benefits. A summary judgment motion is not viable in a social security appeal. Summary judgment motions are a tool used in litigation which has the possibility of going to trial, not in appeals. Manser's motion will, therefore, simply be treated as a review of the merits of his social security appeal. For the reasons that follow judgment should be entered in Manser's favor.

Manser initially filed for disability benefits on November 30, 1994, and was initially found entitled to social security disability benefits by Administrative Law Judge (ALJ) John Arkoosh on July 26, 1996. Part of the scheme of social security is that the Commissioner will from time to time engage in a continued disability review (CDR) to determine whether a person's disability benefits should be terminated.

On July 21, 2000, the Commissioner notified Manser that a continuing disability review revealed that his condition had improved and he was no longer disabled. Manser requested reconsideration on September 19, 2000. On December 1, 2000, the Agency determined on reconsideration that Manser's medical condition had improved and he was not disabled. Manser filed a timely request for an administrative hearing.

A hearing was held on May 22, 2002, before ALJ Cheri L. Filion. Manser was not represented by counsel at the hearing. ALJ Filion heard testimony from three witnesses. They were: Manser, medical expert Jim Bottrell, and vocational expert John Micks, Ph.D. On December 9, 2002, ALJ Filion found that Manser was not disabled within the meaning of the Social Security Act. Manser requested a review of that decision by the Appeals Council. That request was denied on May 27, 2004, thereby making the ALJ's (Commisioner's) decision final. Manser brings this action complaining that the ALJ failed to follow the appropriate procedures thereby invalidating the termination of his benefits.

The decision of the Commissioner must be affirmed if it is supported by substantial evidence and she applied correct legal standards. Benton v. Barnhart, 331 F.3d 1030, 1035 (9^th Cir. 2003). The Commissioner states that the issue before the court is, therefore, whether her decision was consonant with this standard of review. Manser cast the primary issue in terms of due process, which would take in the second part of the standard of review (application of correct legal standards) alleging that the ALJ followed the wrong procedure in deciding his case. Because, as discussed infra, the record in this case is so confusing that the matter must be remanded for further proceedings, the court will not evaluate the question of substantial evidence.

Specifically, Manser contends that the ALJ failed to follow the eight step sequential process for a CDR required by 20 C.F.R. § 404.1594 and § 404.1520[(a)(5)]. Instead Manser, continues, the ALJ "made a mish-mash" of the eight step sequential process of a CDR with the five step sequential process of an initial determination of benefit eligibility ( 20 C.F.R. § 404.1520(a)(4)) by erroneously placing the burden of proof on Manser at steps four and five of the CDR process as if this were an initial disability case. Manser posits that in a CDR the burden of proof at steps seven and eight of the sequential process is on the Commissioner, not the recipient of disability benefits. The two steps in question in the five step process for a determination of initial benefits and the eight step process of a CDR are different. Steps four and five referenced in the C.F.R. sections in question are:

§ 404.1594(f):

(4) If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b) (1) through (4) of this section; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination. If medical improvement is not related to your ability to do work, see step (5). If medical improvement is related to your ability to do work see step (6).

(5) If we found at step (3) that there has been no medical improvement or if we found at step (4) that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs (d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the first group of exceptions to medical improvement applies, your disability will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in the process.

§ 404.1520(a)(4)

(iv) At the fourth step we consider our assessment of your residual functional capacity and your past relevant work. If you can still do past relevant work we will find you are not disabled. ( See paragraph (f) of this section and § 404.1560(b).)

(v) At the fifth and last step, we consider our assessment of your residual functional capacity and your age, education, and work experience to see if you can make an adjustment to other work. If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled. ( See paragraph (g) of this section and § 404.1560(c).)

This matter is readily dispensed with. Clearly steps four and five of the respective review processes were not confused. Indeed, the Commissioner concedes that the ALJ erred in confusing steps seven and eight of a CDR review with steps four and five of an initial disability review when she "incorrectly stated that it was necessary to consider steps four and five of the sequential evaluation, when she meant steps seven and eight of the CDR were being considered." Steps seven and eight of a CDR (§ 404.1594(f)) roughly track steps four and five of an initial benefit review. But, the Commissioner argues, "this error is merely harmless as these steps require the same analysis and are simply referenced by a different name." The court's review of the record reveals no such thing. It is impossible to tell whether the Commissioner applied steps four and five of § 404.1520(a)(4) or steps seven and eight of § 404.1594(f). This is not to say that events may not have occurred as the Commissioner suggests. To so conclude, however, requires outright speculation, and it is just as fair to speculate that the ALJ did in fact confuse the steps four and five for initial disability sequential evaluation with those of a CDR.

The foregoing easily segues into Manser's contention that the ALJ confused the burden of proof in a CDR with that of an initial benefits determination regarding allocation of the burden of proof. The record indicates that the ALJ placed the burden of proof on Manser:

"I plan to look with special care into the issue that you should be prepared to prove that you were under disability on or before the date you last met the insured status requirements."

TR at 530. It is undisputed that the burden of proof would be on a claimant at step four in an initial benefits determination. But, in a CDR the Commissioner has the burden to establish that the claimant has medically improved to the point that she is able to perform either past work or work existing in significant numbers. Hayden v. Barnhart, 374 F.3d 986, 994 (10^th Cir. 2004) citing § 404.1594(f)(7), (8). Ergo, it appears that the Commissioner may well have incorrectly placed the burden of proof on Manser. Ironically, this arguably fits into the Commissioner's theory of the case because it supports the proposition that the ALJ mistakenly articulated what steps she was considering in the CDR. However, the Commissioner's opposition does not refute the rule of Hayden, and the court is persuaded that the Tenth Circuit correctly interpreted § 404.1594(f)(7), (8). Furthermore, Manser's position is supported by the observation in his reply brief that it appears that the Commissioner's letter/notice of hearing to Manser was geared toward initial disability review, not a CDR. More important, the degree of confusion in the record simply prevents the court from finding that the ALJ followed the appropriate sequential process and properly allocated the burden of proof in this case. Again, it may well be that she did do so, but the conjecture required on the court's part to find that she did is too great to allow the court to affirm her decision. Thus, reversal of the ALJ's decision is appropriate. Reversal in this case means that the case is simply remanded to the agency, and that Mr. Manser, who has already been adjudged to be disabled by te Commissioner, maintains his disability status and is entitled to payment of benefits that have been withheld during the appeals process. Id.

For the foregoing reasons it is hereby recommended that Manser's appeal of from the Commissioner Of Social Security's decision resulting in the cessation of his social security disability benefits (Docket No. 14) be GRANTED, and that this case be remanded for a new continuing disability review by the Commissioner of Social Security, and that Mr. Manser's social security benefits be reinstated with full payment of all arrears resulting from the Commissioner's decision to terminate benefits.

Pursuant to Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1), a party seeking to object to this proposed finding and recommendation shall file written objections with the Clerk of Court no later than the close of business on March 23, 2005, to object to a magistrate judge's findings of fact may be treated as a procedural default and waiver of the right to contest those findings on appeal. McCall v. Andrus, 628 F.2d 1185, 1187-1189 (9th Cir.), cert. denied, 450 U.S. 996 (1981). The Ninth Circuit concludes that a district court is not required to consider evidence introduced for the first time in a party's objection to a magistrate judge's recommendation United States v. Howell, 231 F.3d 615 (9^th Cir. 2000). Objections and responses shall not exceed five (5) pages in length, and shall not merely reargue positions presented in motion papers. Rather, objections and responses shall specifically designate the findings or recommendations objected to, the basis of the objection, and the points and authorities in support. Response(s) to the objections shall be filed on or before the close of business on April 7, 2005. The parties shall otherwise comply with provisions of Federal Rule Of Civil Procedure 72(b).

Reports and recommendations are not appealable orders. Any notice of appeal pursuant to Fed.R.App.P. 4(a)(1) should not be filed until entry of the district court's judgment. See Hilliard v. Kincheloe, 796 F.2d 308 (9th Cir. 1986).