The opinion of the court was delivered by: Deborah A. Robinson United States Magistrate Judge
REPORT AND RECOMMENDATION
Pending for consideration by the undersigned United States Magistrate Judge are Plaintiff's Motion for Judgment of Reversal on the Pleadings (Docket No. 12), and Defendant's Motion for Remand (Docket No. 14). For the reasons discussed herein, the undersigned recommends that plaintiff's motion for judgment of reversal be granted, and that defendant's motion for remand be denied.
Plaintiff applied for Social Security disability insurance benefits ("disability insurance benefits") on or about January 27, 1997, and for supplemental security income ("SSI") on or about February 11, 1997, alleging that she could not work due to acquired immune deficiency syndrome ("AIDS"). Administrative Record ("R.") at 18; 270-282; 283-294. On August 21, 1997, the Social Security Administration determined in accordance with Listing 14.08 N that plaintiff was disabled, and awarded her disability insurance benefits and supplemental security income as of an onset date of July 17, 1997. R. 18. Plaintiff filed a timely request for a hearing for reconsideration of the determination regarding the onset date, which she alleged was January 1, 1997 rather than July 17 of that year. R. 63-64. The hearing was conducted by an Administrative Law Judge on October 28, 1998. In his January 13, 1999 Decision, the ALJ made eight findings, including the finding that plaintiff "continued to perform work activity after her alleged onset date of disability"; earned over $500 each month from January, 1997 through July, 1997; and her "work activity" during those months "constitutes substantial gainful activity within the meaning of the regulations." R. 20. The ALJ held that plaintiff was not "under a 'disability'" at any time from January 1, 1997 through July 16, 1997, and therefore was not entitled to disability insurance benefits or supplemental security income during that period. R. 21.
On March 5, 1999, plaintiff filed her Request For Review of Hearing Decision. R. 5, 9-11. As a basis of the request for review, plaintiff's representatives maintained that (1) the ALJ's finding regarding the onset date was inconsistent with Social Security Administration rulings; and (2) plaintiff's evidence was sufficient to overcome the presumption that a claimant's earnings constitute "substantial gainful activity." R. 11, 314-340. On June 22, 2000, the Appeals Council affirmed the decision of the ALJ. R. 3-4.
Plaintiff filed her Complaint for Reversal of the Secretary's Final Decision on August 31, 2000 (Docket No. 1), and thereafter filed her Motion for Judgment of Reversal on the Pleadings (Docket No. 12). Defendant did not file an opposition to plaintiff's motion, and instead, filed a Motion for Remand and Memorandum in Support Thereof ("Defendant's Motion") (Docket No. 14). Plaintiff timely filed her opposition (Docket No. 15), and defendant timely filed his reply to plaintiff's opposition (Docket No. 16).
CONTENTIONS OF THE PARTIES
Plaintiff seeks reversal of the ALJ's decision denying her application for disability insurance benefits and supplemental security income for the period January 1, 1997 through July 16, 1997. Plaintiff's Motion for Judgment of Reversal on the Pleadings at 1. Plaintiff seek payment of disability insurance benefits and supplemental security income for that period, as well as an award of attorneys' fees and costs pursuant to the Equal Access to Justice Act, 5 U.S.C. § 504. Id. In the memorandum in support of her motion, plaintiff contends that the ALJ "failed to evaluate record evidence to determine [plaintiff's] countable income (as distinct from gross income), relevant to a determination of whether or not she was in engaged in substantial gainful activity during the period in dispute, or to evaluate the evidence that she was not able to fulfill the responsibilities of her job because of her disabling medical condition." Memorandum of Points and Authorities in Support of Plaintiff's Motion for Judgment of Reversal on the Pleadings Under Fed. R. Civ. P. 12(c) ("Plaintiff's Memorandum") at 2. Plaintiff further submits that "[t]here is substantial record evidence of medical disability from January 1 through July 16, 1997." Id. Plaintiff advances three arguments in support of her motion: (1) the Commissioner's conclusion that she was engaged in substantial gainful activity within the meaning of the relevant regulations from January 1, 1997 until July 16, 1997, and therefore was not disabled despite her medical condition, was not supported by substantial evidence; (2) the Commissioner erred by his failure to evaluate evidence that her employment was subsidized, and therefore not substantial gainful activity; (3) the combination of her HIV-related impairments met the Social Security regulations standard for medical disability at all times from January 1, 1997. Plaintiff's Memorandum at 7-19.
Defendant did not file an opposition to plaintiff's motion. Rather, defendant requested that this action be remanded to the Commissioner of the Social Security Administration "for further proceedings pursuant to sentence four of Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g)." Defendant's Motion for Remand and Memorandum in Support Thereof ("Defendant's Motion") at 1.
Defendant submits that remand is warranted (1) "to determine whether plaintiff engaged in substantial gainful activity during the period in dispute"; and (2) "to evaluate the evidence of whether plaintiff was able to fulfill the responsibilities of her job despite her disabling medical condition." Defendant's Motion at 1. *fn1 Absent from defendant's memorandum is any assertion that the challenged findings were supported by substantial evidence; rather, defendant states that he "submits this motion as a matter of fundamental fairness in lieu of a brief in support of the Commissioner's denial of benefits." Id. at 2.
Plaintiff, in her opposition tp defendant's motion for remand, submits that (1) the Commissioner "concedes that the ALJ made an error of law"; (2) the Commissioner fails to establish good cause for a remand; and (3) the record is "fully developed with substantial evidence." Plaintiff's Opposition to Defendant's Motion for Remand and Memorandum of Points and Authorities in Support Thereof ("Plaintiff's Opposition") at 1. Plaintiff maintains that the Court should reverse the ALJ's decision, remand the case to the agency "solely for calculation and award of benefits[,]" and award fees and costs under the Equal Access to Justice Act. Id.
Plaintiff maintains that "implicit in Defendant's Motion is the concession that the Commissioner now agrees with Plaintiff's argument in her Motion for Reversal that the agency applied an incorrect legal standard when it looked solely at the actual gross FICA earnings in determining whether Ms. Hawkins was engaged in substantial gainful activity." Plaintiff's Opposition at 2. Plaintiff further maintains that because she provided "uncontradicted record evidence on subsidy, and because SSA does not require the evidence it now identifies as critical, the Commissioner has not established good cause for remand." Plaintiff's Opposition at 4.
In his reply to plaintiff's opposition, defendant submits that by its motion for remand, "the agency seeks to determine if plaintiff's employment earnings during the period in question were a 'gift' as alleged by plaintiff." Defendant's Reply to Plaintiff's Opposition to Remand ("Defendant's Reply") at 1. Defendant suggests that "care should be used not to award such benefits for a period in which plaintiff earned wages which would ordinarily be deemed substantial." Id. at 2. Defendant does not dispute plaintiff's contention that the Commissioner concedes that the ALJ erred in his determination that ...