Burnett v. Bowen

• Decision Date: 21 September 1987
• Docket Number: No. 86-1123,86-1123
• Citation: 830 F.2d 731
• Parties: , Unempl.Ins.Rep. CCH 17,572 Rodney BURNETT, Plaintiff-Appellant, v. Otis BOWEN, Secretary, Department of Health and Human Services, Defendant- Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 731

830 F.2d 731

19 Soc.Sec.Rep.Ser. 323, Unempl.Ins.Rep. CCH 17,572

Rodney BURNETT, Plaintiff-Appellant, v. Otis BOWEN, Secretary, Department of Health and Human Services, Defendant- Appellee.

No. 86-1123.

United States Court of Appeals Seventh Circuit.

Argued Nov. 6, 1986.

Decided Sept. 21, 1987.

Richard B. Muller, Costello, Ling, Young & Dvorak, Ltd., Springfield, Ill., for plaintiff-appellant.

Rosemary Rodriguez, U.S. Dept. of Health & Human Svc. Chicago, Ill., for defendant-appellee.

Before COFFEY and FLAUM, Circuit Judges, and PARSONS, Senior District Judge. ^*

COFFEY, Circuit Judge.

The plaintiff-appellant Rodney Burnett appeals the district court's order granting the Secretary of Health and Human Services' motion for summary affirmance of her determination that Burnett was not entitled to disability benefits before November 13, 1983, under the Social Security Act. We reverse and remand.

I. FACTS

Rodney Burnett, the plaintiff-appellant, collapsed at his place of employment on March 22, 1982, with a grand mal seizure ¹ diagnosed as having been caused by a large tumor. Some three weeks later on April 15 the tumor was surgically excised. On a follow up visit after a three-and-a-half-month convalescence period, the treating surgeon estimated he would be disabled for at least another six months.

Even though Burnett received physical therapy treatments for several months and made some progress in his recovery, he continued to suffer from weakness in his right leg as well as experiencing difficulty with sudden movements of his right arm and leg. The tumor reoccurred, and the appellant suffered another grand mal seizure in December 1982.

Burnett initially filed an application for disability benefits on May 12, 1982 (less than two months after his collapse on March 22, 1982) claiming he had been disabled since March 22, 1982. Administrative Law Judge ("ALJ") Julian Cosentino, in a decision dated May 18, 1983, found that Burnett possessed "the residual functional capacity to perform the full range of sedentary work." The ALJ reviewed several medical reports and stated in his "evaluation of the evidence" that he had considered Burnett's complaints of pain and fatigue in reaching his decision. The Department of Health and Human Services' Appeals Council rejected Burnett's request for review on July 1, 1983. ²

Burnett reapplied for disability benefits on August 1, 1983, describing his disabling condition as a "brain tumor growing back" "weakness on right side" and "seizures" and also requested re-opening of ALJ Cosentino's decision of May 18, 1983, based on new evidence including: (1) a report from the Illinois Department of Rehabilitation Services stating that he was too severely disabled to benefit from vocational training or job placement services; (2) a report from his physician, Dr. Miller, that the plaintiff has been unable to engage in gainful activity since April of 1982; (3) his own statement that he continued to have seizures after the initial ruling by ALJ Cosentino on May 18, 1983.

On July 31, 1984, ALJ Lincoln denied Burnett's request to reopen the previous opinion of ALJ Cosentino finding "No new evidence material to the issues resolved in that decision has been submitted," but did find that Burnett was disabled as of November 13, 1983, but not prior to that date. In support of his conclusion that Burnett was not disabled before November 13, 1983, the ALJ (Lincoln) stated that Burnett's last seizure was in May of 1983, and although Burnett could not have performed the duties of his previous employment prior to November 13, 1983, "he could have been expected to engage in substantial gainful activity in ... [sedentary] jobs." The HHS Appeals Council affirmed ALJ Lincoln's decision.

The plaintiff brought this action seeking judicial review of the Secretary's denial of his application for social security disability benefits from March 22, 1982, to November 13, 1983, in the United States District Court for the Central District of Illinois. Burnett sought review of ALJ Lincoln's determination (1) that ALJ Cosentino's decision should not be re-opened; and (2) that the plaintiff's disability began on November 13, 1983 rather than in May of 1983. The district court granted the Secretary's motion for summary affirmance of the Secretary's decision.

In response to the first issue, despite concluding that it did not have subject matter jurisdiction under Sec. 405(g) ³ to review whether ALJ Lincoln improperly refused to reopen ALJ Cosentino's decision based on the new evidence submitted by Burnett, the district court ruled that it had jurisdiction based on the federal mandamus statute, 28 U.S.C. Sec. 1361, "[t]o the extent Mr. Burnett alleges that the Secretary did not carry out [his] clear and plainly defined duty to plaintiff to consider his new evidence." Burnett v. Heckler, 625 F.Supp. 831, 838 (C.D.Ill.1986). The district court stated that:

"mandamus is viewed as an extraordinary procedure that is available only where the following three elements are present: (1) a clear right in the plaintiff to the relief sought; (2) a plainly defined and peremptory duty on the part of the defendant to do the act in question; and (3) no other adequate remedy available."

Id. at 836. After ruling on the jurisdictional question and reviewing the subject matter the district court held that the facts in this case did not warrant the issuance of a writ of mandamus finding ALJ Lincoln did carry out his duty to the plaintiff in considering Burnett's new evidence. The district judge stated:

"Express statements contained in the ALJ's opinion make it clear that ALJ Lincoln considered plaintiff's new evidence, but found that it did not justify re-opening the case. Such an indication is first present in the ALJ's statement that 'no new evidence material to the issues resolved in that decision (by ALJ Cosentino) has been submitted.' It is apparent from the statement that ALJ Lincoln considered the new evidence, but found it not to be material to the Secretary's first decision. The conclusion is supported by the fact that ALJ Lincoln's opinion does expressly consider and explain his rejection of Dr. Miller's report, which is one of the items of new evidence introduced by plaintiff. (R. 14). Finally, in making his determination that the Secretary's decision issued May 18, 1983, remains final and binding, ALJ Lincoln stated he considered the entire record. (R. 15). Thus, it is apparent that ALJ Lincoln did give consideration to plaintiff's 'new' evidence."

Id. at 838. The district court concluded that since the ALJ (Lincoln) made a determination that the new evidence did not provide a basis ("good cause") for reopening the earlier decision, the ruling of ALJ Cosentino was final and binding for the purposes of applying administrative res judicata. ⁴

As to the second issue (the improper determination that Burnett's disability began on November 13, 1983 rather than on May 18, 1983) the district court concluded that there was "substantial evidence to support the ALJ's findings that Mr. Burnett was not disabled from May 18 to November 13, 1983." In addition, the trial judge determined that ALJ Lincoln's stated reasons for denying Burnett's claim for disability prior to November 1983 satisfied this court's requirement set forth in Zalewski v. Heckler, 760 F.2d 160, 166 (7th Cir.1985) that "a minimal level of articulation of the ALJ's assessment of the evidence is required in cases in which considerable evidence is presented to counter the agency's position."

On appeal Burnett argues that ALJ Lincoln's determination that he was not disabled under 42 U.S.C. Sec. 423(a) from May 18, 1983 to November 13, 1983, was not supported by substantial evidence in the record and further that he failed to comment on the evidence in the record that failed to be supportive of his decision. Secondly, the appellant contends that he is entitled to a writ of mandamus compelling the Secretary to consider the new evidence presented (a report from the Illinois Department of Rehabilitation Services, a report from Dr. Miller, his treating physician, and Burnett's claims and medical reports of continued seizures after the initial decision) for the re-opening of his claim for disability benefits for the period of from March 22, 1982 to May 18, 1983.

II. SUBSTANTIAL EVIDENCE

Under 42 U.S.C. Sec. 405(g), "The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive, and where a claim has been denied by the Secretary ... the court shall review only the question of conformity with such regulations and the validity of such regulations." (Emphasis added). The substantial evidence standard "[a]pplies to the district court's review of the Secretary's decision as well as this court's review of the district court's decision." Imani v. Heckler, 797 F.2d 508, 510 (7th Cir.1986). ⁵ If the Secretary's findings are supported by substantial evidence in the record, "we must affirm unless there has been an error of law." Waite v. Bowen, 819 F.2d 1356, 1360 (7th Cir.1987).

Substantial evidence is "[r]elevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216-217, 83 L.Ed. 126 (1938)); see also Universal Camera Corp. v. NLRB, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951). In reviewing the findings of the Secretary to determine if they are supported by substantial evidence "we may not decide the facts anew, reweigh the evidence, or substitute our own judgment for that of the Secretary." Delgado v. Bowen, 782 F.2d 79, 82 (7th Cir.1986).

We thus review whether there was substantial evidence in the record to support the Secretary's determination that since Burnett retained "the residual functional capacity for sedentary work" that...