The opinion of the court was delivered by: Paul L. Friedman, District Judge.
Narayanan Krishnan brought this action on behalf of his
brother, Narayanan Deviprasad, under Section 205(g) of the
Social Security Act, 42 U.S.C. § 405(g), to review a final
decision of the Commissioner of the Social Security
Administration denying his brother's application for disability
insurance benefits under Title II of the Act,
42 U.S.C. § 401-423. Mr. Deviprasad is not a United States citizen, but he
lived and worked here from 1981 until 1991 when he became
permanently disabled and was forced to return to India to be
cared for by his brother. The Social Security Act prohibits
payment of benefits to non-citizens who have resided outside the
United States for over six months, except under certain
circumstances. See 42 U.S.C. § 402(t). The Commissioner
concluded that Mr. Deviprasad did not meet any of the exceptions
to the prohibition against payment of benefits to non-resident
noncitizens and denied him disability insurance benefits. The
Court affirms the Commissioner's decision.
The Social Security Act generally denies non-citizens
disability insurance benefits if they have resided outside the
United States for more than six months. 42 U.S.C. § 402(t)(1);
see 20 C.F.R. § 404.460(a). This general rule has several
exceptions, however, and plaintiff argues that one of them
applies to him, an exception set forth in
42 U.S.C. § 402(t)(4).*fn2 An "eligible nonresident," see Ganem v.
Heckler, 746 F.2d 844, 845 (D.C.Cir. 1984), for
purposes of Section 402(t)(4), is one who has lived in the
United States for ten years or has earned 40 quarters of
coverage.*fn3 Because it is agreed that plaintiff lived in
the United States for only nine years and eight months, he would
only fall under this exception if he earned 40 quarters of
coverage. Plaintiff could also fall within an exception to the
general rule without needing 40 quarters of coverage if he were
a citizen of a "reciprocal" country or a "treaty" country. A
reciprocal country is one that has a social insurance system of
general application that pays periodic benefits to United States
citizens who qualify for such benefits while residing outside of
the reciprocal country. 42 U.S.C. § 402(t)(2);
20 C.F.R. § 404.460(b)(7). A treaty country is one where application of the
general rule would violate a United States treaty obligation.
42 U.S.C. § 402(t)(3); 20 C.F.R. § 404.460(b)(6). It is undisputed
that India is not a reciprocal country because it has been found
to have no social insurance system of general application.
20 C.F.R. § 404.463(a)(7), Social Security Ruling 89-12 (Dec. 26,
1989). Nor is India a treaty country. See
20 C.F.R. § 404.463(b).
B. Claimant's Work History and Impairment
Narayanan Deviprasad is a citizen of India. He first entered
the United States on August 26, 1981 to pursue a masters degree
in electrical engineering at Worcester (Massachusetts)
Polytechnic Institute. While earning his masters degree, Mr.
Deviprasad worked as a teaching assistant at the school, earning
between $500 and $550 a month from September 1981 until May 1983
when he graduated. After receiving his masters degree, Mr.
Deviprasad worked as a computer software engineer for various
companies in the United States, beginning in September 1983.
In May 1986, Mr. Deviprasad was diagnosed with paranoid
schizophrenia. Over the next five years, Mr. Deviprasad returned
to India periodically for treatment and medication, only to
suffer relapses of his mental illness after returning to work in
the United States. Mr. Deviprasad has been in India continuously
since April 25, 1991, where he is under the care of his elder
brother, Narayanan Krishnan, who serves as his next friend in
this action. His treating physician states that Mr. Deviprasad's
condition is permanent and deteriorating.
Mr. Deviprasad filed his initial application for disability
insurance benefits with the Social Security Administration on
May 22, 1993. (Tr. 29-32)*fn4 His application was
denied because he was not a United States citizen and had
resided outside the United States for more than six months.
42 U.S.C. § 402(t)(1)(A).*fn5 On reconsideration, his
application was again denied. (Tr. 47-50) The Social Security
Administration Administrative Law Judge agreed that Mr.
Deviprasad was disabled because of his mental impairment, but
concluded that "he did not meet any of the conditions that would
permit payment of benefits outside the United States." (Tr. 47)
The ALJ also found that Mr. Deviprasad did not meet any of the
exceptions to the residency requirement. The ALJ's decision was
upheld on administrative appeal. (Tr. 9-10, 22-27)
Having exhausted his administrative remedies, Mr. Krishnan
filed this action here on behalf of his brother. After the
Commissioner filed an answer, the Court appointed counsel for
Mr. Krishnan.*fn6 During the initial briefing of the parties'
cross-motions for summary judgment, Mr. Krishnan argued that Mr.
Deviprasad had earned 40 quarters of coverage and therefore fell
within an exception to the bar against paying disability
benefits to noncitizens who reside outside the United States.
The Commissioner then submitted evidence regarding Mr.
Deviprasad's quarters of coverage that were not contained in the
administrative record, and Mr. Krishnan submitted additional
evidence to rebut the Commissioner's evidence. Believing that
"the new evidence counsels in favor of additional agency
proceedings," this Court remanded the case to the Commissioner
"for further evaluation of all relevant evidence, and . . . [to
give plaintiff] the opportunity to submit additional evidence,
to determine whether plaintiff has earned at least 40 quarters
of coverage and is therefore entitled to receive benefits while
living in India. . . ." Order of September 17, 1999.
Nearly five months after remand, but before any further
administrative hearing had been held, Mr. Krishnan moved to
vacate the Court's remand order as contrary to law; he also
renewed his motion for summary judgment. The following month, an
ALJ conducted a hearing which Mr. Krishnan's counsel attended.
After the hearing, the ALJ obtained a copy of Mr. Deviprasad's
Social Security earnings records which showed that he had earned
only 30 quarters of coverage. Mr. Krishnan did not attempt to
further rebut this evidence. On April 18, 2000, the ALJ issued a
new decision finding that Mr. Deviprasad had not earned 40
quarters of coverage and that he therefore did not meet the
exception barring payment of disability benefits to non-citizens
who reside outside the United States. (Tr. 8491) In so ruling,
the ALJ determined that Mr. Deviprasad's two years spent as a
teaching assistant at Worcester Polytechnic Institute was not
employment for purposes of disability insurance benefits and
could not be counted in his quarters of coverage.
This Court must affirm the Commissioner's factual
determinations so long as they are supported by substantial
the record and are not tainted by an error of law. Smith v.
Bowen, 826 F.2d 1120, 1121 (D.C.Cir. 1987). Substantial
evidence is "more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion," Riichardson v. Perales, 402 U.S. 389,
402, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated
Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S.Ct. 206, 83
L.Ed. 126 (1938)). In determining whether the Commissioner's
decision is supported by substantial evidence, the Court may not