Opinion
Civil Action No. 00-0622-P-C
April 27, 2001
JUDGMENT
In accordance with this court's Order entered this date, it is hereby ORDERED, ADJUDGED, and DECREED that defendant's motion to dismiss be GRANTED, pursuant to Fed.R.Civ.P. 12(h)(3), and that plaintiffs action be DISMISSED without prejudice.
ORDER ADOPTING THE REPORT AND RECOMMENDATION OF THE MAGISTRATE JUDGE
After due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Report and Recommendation to which objection is made, the Report and Recommendation of the Magistrate Judge made pursuant to 28 U.S.C. § 636 (b)(1)(B) and dated January 17, 2001, is adopted as the opinion of this court. The Magistrate Judge recommends that defendant's Motion to Dismiss be granted, pursuant to Fed.R.Civ.P. 12 (h)(3).
Rule 12(h)(3) provides: "Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action."
Plaintiff raises two objections to the Magistrate Judge's Recommendation: 1) that plaintiffs action is not subject to res judicata because plaintiffs current application for disability insurance benefits is distinct from his prior applications in that it includes an additional alleged impairment, "lifelong mental retardation"; and 2) the Recommendation was entered without reviewing a transcript of the administrative proceedings which defendant failed to proffer in accordance with the court's Order dated July 12, 2000 (doc. 14).
First, in connection with res judicata, plaintiff takes issue with footnote number 2 in the Report and Recommendation (doc. 13, p. 7), and argues that plaintiffs mental impairment was raised at the November 21, 1997 administrative hearing before the A. This court finds, however, that the issues presented are the same as those raised by plaintiff in response to defendant's Motion to Dismiss (See doc. 13, p. 7, number 6), and which were thoroughly addressed by the Magistrate Judge.
Moreover, the evidence, as proffered by plaintiff, indicates that Dr. Crum's psychological evaluation occurred on February 17, 1999 (doc. 11, Ex.A-Psychological Evaluation), fourteen months after the hearing before the ALJ, and over one year after the ALJ's decision dated January 28, 1998.
Further, as noted by the Magistrate Judge, the Appeals Council considered Dr. Crum's psychological evaluation and noted:
The [ALJ] found that you were not disabled on or before March 31, 1994, the date you last met the insured status requirements of the Social Security Act. The new evidence is not material to the issue of whether you were disabled at a time when you met the insured status requirements.
(doc. 13, p. 7, ¶ 1, quoting doc. 9, Ex.7).
This court notes that Dr. Crum's psychological evaluation reflects:
Background Information:
. . . [plaintiff] was born 2/28/45 in Monroe County, AL . . . He attended school at Beatrice Elementary and went on to J.F. Shield High School in Beatrice. He attended regular classes and reported that he made fair grades. He quit school in the 11th grade in order to stay home and help his mother. [Plaintiff] has been married for 30 years and has three adult children. [Plaintiff] has relied on physical labor as a means of employment. He worked at various companies in the logging industry . . . [Plaintiff] has not worked since 1994 . . . He states that he does go to church on Sundays and is a deacon of his church. [Plaintiff] does not have a driver's license, however, he does drive sometimes if necessary . . .
(doc. 11, Ex.A). Although Dr. Crum's diagnostic impression is "Upper Mild Mental Retardation, " there is no indication from Dr. Crum that plaintiffs present alleged mental impairment manifested itself prior to the lapse of plaintiffs insured status on March 31, 1994. See Id.
Plaintiffs second objection is that the Magistrate Judge erred in issuing the Report and Recommendation without reviewing the transcript. Plaintiff argues that defendant, contrary to this court's July 12, 2000 Scheduling Order, did not provide a transcript of the administrative proceedings underlying this action.
This court's Social Security Scheduling Order provides that defendant "shall file an answer, together with a transcript of the administrative proceedings..." (doc. 5-Social Security Scheduling Order, this court's Standing Order Number 4, dated July 29, 1999, and effective September 1, 1999, item 1). However, the provision does not preclude motions to dismiss pursuant to Fed.R.Civ.P. 12. Id., p. 1, item 2 ("This does not preclude either party from seeking leave to file any motion deemed necessary pursuant to the Federal Rules of Civil Procedure.")), which would preempt the need for a responsive pleading, i.e., an answer, Fed.R.Civ.P. 7(a), and the accompanying transcript, such as in the case herein.
Accordingly, after due and proper consideration of all portions of this file deemed relevant to the issues raised, and a de novo determination of those portions of the Report and Recommendation to which objection is made, the Report and Recommendation of the Magistrate Judge is adopted as the opinion of this court. It is ORDERED that defendant's motion to dismiss be granted, pursuant to Fed.R.Civ.P. 12(h)(3), and that plaintiffs action be DISMISSED without prejudice.