Butera v. Apfel, 97-2838
| Decision Date | 31 March 1999 |
| Docket Number | No. 97-2838,97-2838 |
| Citation | 173 F.3d 1049 |
| Parties | James R. BUTERA, Plaintiff-Appellant, v. Kenneth S. APFEL, Commissioner of Social Security, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Paul J. Clymer (argued), Gagliardi, Nelson & O'Brien, Salem, WI, for Plaintiff-Appellant.
Thomas P. Schneider, Office of the United States Attorney, Milwaukee, WI, Gary A. Sultz (argued), Kelly Rausch Larson, Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.
Before COFFEY, EASTERBROOK and EVANS, Circuit Judges.
In October of 1992, the unemployed plaintiff-appellant, James Butera ("Butera"), applied for disability insurance benefits and supplemental security income under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), 1382, and 1382c(a), contending that he was "disabled" and unable to work as a result of severe back and leg pain. Butera's application was denied by the Wisconsin Department of Health and Family Services, Division of Disability Determination, after a finding that Butera was not "disabled" within the parameters of the Social Security Act. Butera appealed the denial to an administrative law judge ("ALJ") at the Department of Health and Human Services Office of Hearings and Appeals who determined, on March 9, 1994, that he was not disabled. Butera appealed the ALJ's decision to the United States District Court for the Eastern District of Wisconsin which denied Butera's claim for benefits, dismissed the action, and entered an order and judgment on March 26, 1997. On appeal, Butera argues that the ALJ erred in failing to allow him to cross-examine the Commissioner's experts and in finding that he was not disabled. In response, the Commissioner points out that Butera's notice of appeal was not timely filed. We affirm.
Butera contends that he was "disabled" as a result of back and leg pain which commenced in 1978 and thereafter, in May of 1992, became so debilitating that it rendered him unable to work. On October 28, 1992, Butera applied to the Wisconsin Department of Health and Family Services for disability insurance benefits and supplemental security income under the Social Security Act, 42 U.S.C. §§ 416(i), 423(d), 1382, and 1382c(a). On November 18, 1992, the Wisconsin Department of Health and Family Services requested that Butera undergo a thorough medical examination and evaluation to determine the nature of his disability. Three days later, on November 21, 1992, Butera sought emergency department treatment at a hospital in Kenosha, Wisconsin, complaining of severe pain in his back and right hip. At this time, Butera was examined by C. Newton, M.D. ("Newton") and her examination revealed that Butera limped and complained of pain in his hip, but maintained normal reflexes, a normal ability to raise his right leg, and a normal ability to stand, walk, and balance on his heels and toes. X-rays of the hip were normal, and x-rays of Butera's spine revealed only mild degenerative changes. At this time, Newton referred Butera to two orthopaedic specialists. A magnetic resonance imaging ("MRI") test of Butera's spine, administered by orthopaedic surgeon Karl Scheidt, M.D. ("Scheidt"), revealed a herniated disc in Butera's lumbar spine. Although Butera exhibited a limited range of motion in his hip, Scheidt was of the opinion that Butera possessed normal reflexes, sensation, and motor strength. Dr. Howard An, M.D. ("An"), another orthopaedic surgeon, noted that Butera had difficulty walking, but his motor, reflex, and sensory evaluations were normal. Further, he specifically noted that Butera "appears to have much more pain [than normal] for his degree of herniation and is reluctant to try any types of medication." Dr. An suggested that Butera might benefit from enrollment in a pain clinic.
In completing Butera's state medical assistance form, Dr. Newton opined that Butera's ability to work was limited by hip pain, but that he could lift five pounds and perform light work one or two hours a day, three or four days per week. Along with medical records and evaluations from Scheidt and An, Butera presented Newton's report to the state agency reviewing his claim for disability benefits and supplemental security income. Pat Chan, M.D. ("Chan"), and Kenneth L. Bussan, M.D. ("Bussan"), two physicians employed by the Wisconsin Department of Health and Family Services, examined Butera's file and submitted a report based upon their review of the available record. They found that Butera retained the ability to lift fifty pounds occasionally, lift twenty-five pounds frequently, and stand, sit, or walk up to six hours each in an eight hour day. Based on the Department of Health and Family Services physicians' analysis of Newton's report and the medical records and findings of Scheidt and An, Butera's claim for disability benefits and supplemental security income was denied on January 12, 1993. Butera filed for reconsideration, which was also denied. On March 30, 1993, Butera requested a hearing before an ALJ to review the denial of benefits. Prior to the hearing, Butera objected to the inclusion of the state physicians' report in the record and alternatively requested that the two state physicians be subpoenaed to appear at the hearing on the case. In support of his objection, Butera claimed that the Department of Health and Family Services physicians had only reviewed the medical reports of Scheidt and An and had not personally examined him and thus had issued their opinions on less than a full record. The ALJ denied Butera's request because, in his opinion, the presence of the doctors "would not aid in the search for truth." The ALJ noted that he would weigh the opinions of the state physicians pursuant to the regulations and consider that they had not examined Butera and that their opinions, like all others in the record, had not been subject to cross-examination. On March 9, 1994, the ALJ determined that even though Butera was suffering from severe back and leg pain as a result of the disc herniation, he nevertheless retained a "residual functional capacity" to perform a full range of light work. 20 C.F.R. §§ 404.1567 and 416.967. The ALJ, after evaluating all of the reports before him, also found that, considering Butera's "residual functional capacity," as well as his age, limited education, and work experience, he was not "disabled." Butera appealed the ALJ's decision to the United States District Court for the Eastern District of Wisconsin. The case was referred by the trial judge to a magistrate judge. Both parties filed for summary judgment, and the magistrate judge concluded that the ALJ had erroneously denied Butera's subpoena request. The matter was returned to the district judge who, in turn, disagreed and entered an order of judgment rejecting the magistrate's recommendation, denying Butera's appeal, and dismissing the action. Also, for reasons undisclosed, the trial judge concluded that the magistrate's recommendation "is herewith affirmed in all respects." On April 9, 1997, the tenth day following entry of judgment, the Commissioner filed a motion for clarification of judgment under Fed.R.Civ.P. 59(e), requesting that the trial court amend its judgment to resolve the inconsistency by entering a new order rejecting the magistrate's recommendation. The next day, April 10, Butera filed a motion requesting that the trial judge "consider amending his judgment to be consistent with the magistrate's recommendation." One week later, on April 17, 1997, the court resolved the inconsistency and granted the Commissioner's motion for clarification and entered another order dismissing Butera's action in its entirety. Thereafter, on May 16, 1997, the district court denied Butera's motion to amend the original judgment, and on July 15, 1997, 60 days after the denial of Butera's motion to amend the original judgment (May 16) and 92 days after entry of the trial judge's amended judgment (April 17), Butera filed a notice of appeal with this Court.
On appeal, we consider whether Butera's appeal was timely filed. We also consider whether substantial evidence supports the ALJ's finding that Butera remained capable of light work and was not "disabled" within the meaning of the Social Security Act and whether the ALJ's denial of Butera's request for a subpoena of the two Department of Health and Family Services physicians, Chan and Bussan, was proper.
On appeal, initially we consider whether Butera's notice of appeal was timely filed. The Commissioner contends that Butera's post-judgment motion was not a timely Rule 59(e) motion and thus did not toll his appeal. The Commissioner argues that Butera's notice of appeal was filed more than 60 days after the entry of the judgment denying Butera's disability benefits, and therefore his appeal is untimely.
This Court, in a previous order issued on October 31, 1997, considered and rejected the Commissioner's argument. A motions panel determined that Butera timely appealed the amended judgment. The motions panel cited U.S. E.E.O.C. v. Gurnee Inns, Inc., 956 F.2d 146, 149 (7th Cir.1992), for the proposition that the Court is "reluctant to hold that a party can be barred from appealing on the basis of an order that is not explicit." In Avitia v. Metropolitan Club of Chicago, Inc., 49 F.3d 1219, 1227 (7th Cir.1995) this Court stated that "[t]he doctrine of law of the case establishes a presumption that a ruling made at one stage of a lawsuit will be adhered to throughout the suit." In other words, a prior ruling of the Court dealing with the same subject matter and same parties in the same case is conclusive and is the law of the case. As such, we are not obligated to reconsider an issue that has previously been resolved before a motions ...
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