Couch v. Schweiker, Civ. No. L 82-0013.

• Decision Date: 28 December 1982
• Docket Number: Civ. No. L 82-0013.
• Citation: 555 F. Supp. 651
• Parties: Polly COUCH, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Indiana

555 F. Supp. 651

Polly COUCH, Plaintiff, v. Richard S. SCHWEIKER, Secretary of Health and Human Services, Defendant.

Civ. No. L 82-0013.

United States District Court, N.D. Indiana, Hammond Division.

December 28, 1982.

Philip Burchett, Lafayette, Ind., for plaintiff.

R. Lawrence Steele, Jr., U.S. Atty., Hammond, Ind., for defendant.

MEMORANDUM AND ORDER

SHARP, Chief Judge.

This is an action for judicial review of a final decision of the defendant Secretary of Health and Human Services simultaneously denying plaintiff's applications for a period of disability and disability insurance benefits pursuant to Title II, Section 216(i) and 223 of the Social Security Act (hereinafter "Act"), and for disabled widow's benefits as provided by Section 202(e) and 223 of the Act. 42 U.S.C. § 416(i); 42 U.S.C. § 402(e); 42 U.S.C. § 423.

Plaintiff filed applications for a period of disability and disability insurance benefits and for disabled widow's benefits on March 27, 1980 and June 16, 1980, respectively, alleging that she became unable to work in January of 1974, at age 44 (Tr. 222-231). Prior to her current applications, on November 20, 1974, plaintiff filed applications for disability insurance benefits and for Supplemental Security Income (hereinafter "SSI") pursuant to Title II and Title XVI of the Act, alleging that she became disabled in January of 1974, due to the same ailments of which she now complains (Tr. 95-98). A period of disability, beginning on May 18, 1974, was subsequently established (Tr. 175). In February of 1978, plaintiff was notified that current medical evidence demonstrated that she had regained the ability to engage in substantial gainful activity in February of 1978 (Tr. 176, 185) and her benefits were terminated accordingly. Thereafter, pursuant to plaintiff's timely request, a hearing was held before an Administrative Law Judge (hereinafter "ALJ") and on October 17, 1978 the ALJ found that plaintiff's benefits were properly terminated because she was no longer disabled as of February 7, 1978 (Tr. 210-215). The ALJ's decision became the final decision of the Secretary of Health and Human Services when the Appeals Council approved that decision on December 8, 1978 (Tr. 217-218).¹

Plaintiff's current applications for disability insurance benefits and for disabled widow's benefits were denied initially (Tr. 232-233)² and on reconsideration (Tr. 239-240) by the Office of Disability Operations of the Social Security Administration after the Indiana State Agency, upon evaluation of the evidence by a physician and a disability examiner, had found that plaintiff was not under a disability. The ALJ, before whom plaintiff, her attorney, her witness, and a vocational expert appeared, considered the case de novo, and on July 30, 1981, found that plaintiff was not under a disability (Tr. 12-26). The ALJ's decision became the final decision of the Secretary of Health and Human Services when the Appeals Council approved that decision on February 5, 1982 (Tr. 5-6).

To qualify for a period of disability and disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, an individual must meet the insured status requirements of these Sections, be under age 65, file an application for disability insurance benefits and a period of disability, and be under a "disability" as defined in the Act. 42 U.S.C. § 423.

A widow must also meet the requirement of Section 223(d)(2)(B) which provides that she shall not be under a disability unless her physical impairment is of a level of severity which under regulations prescribed by the Secretary is deemed sufficient to preclude an individual from engaging in any gainful activity. 42 U.S.C. § 423(d)(2)(B).

The only issue before the court in this action is whether the final decision of the Secretary is supported by substantial evidence.

Establishment of a disability which would entitle plaintiff to benefits under the Social Security Act is a two-step process. First, there must be a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months; and second, there must be a factual determination that the impairment renders the plaintiff unable to engage in any substantial gainful employment. 42 U.S.C. § 423(d)(1)(A), (2)(A); McNeil v. Califano, 614 F.2d 142 (7th Cir.1980); Lieberman v. Califano, 592 F.2d 986 (7th Cir.1979).

It is settled law that the burden of proof rests upon the plaintiff to establish entitlement to disability insurance benefits under the Social Security Act. Johnson v. Weinberger, 525 F.2d 403 (7th Cir.1975). In order to do so, plaintiff must establish that she became "disabled" within the meaning of the Act prior to the expiration of her insured status. Jeralds v. Richardson, 445 F.2d 36 (7th Cir.1971). Plaintiff's earnings record shows that she last met the earnings requirement on December 31, 1978 (Tr. 245). Therefore, plaintiff must establish that she was disabled on or before December 31, 1978 in order to prevail on her claim for disability benefits.

Plaintiff was 52 years old at the time of the administrative hearing and had experience as a waitress, a cashier, and a factory worker (Tr. 43-49). Plaintiff alleges complete disability as of January of 1974 due to problems with her back, feet, and nerves (Tr. 222).

The record reveals that this action stems in part from plaintiff's application for a period of disability and disability insurance benefits based on the same alleged impairment and the same alleged onset date as her prior 1974 application, for which she established a period of disability and already received disability insurance benefits (Tr. 222-225, 95-98). However, her period of disability terminated in February of 1978, and this administrative determination was reviewed by an ALJ and affirmed after full de novo consideration, which included a hearing on the merits, of plaintiff's claim. The ALJ rendered his decision regarding plaintiff's previous termination on October 17, 1978 (Tr. 210-215). Once a period of disability is established and then subsequently terminated, there is no presumption of continued disability. Clearly if there was such a presumption following a proper termination of benefits, it would render the termination invalid. Rather, it is well recognized that final determinations, with respect to prior applications for disability benefits, establish for the purpose of a later application that the individual claiming benefits was not under a disability for the period covered by the final administrative decisions on the earlier applications. Borg v. Weinberger, 381 F.Supp. 1212 (E.D.Mich. 1974), aff'd, 510 F.2d 972 (6th Cir.1975). It is therefore established that plaintiff was not under a disability as of October 17, 1978, the date of the final decision with respect to her prior application (Tr. 210-215) and there is no presumption that her previous disability continued beyond that point. Rather, it is established that her disability not only did not continue, but in fact that it had ended in February of 1978 and that plaintiff continued to be "not disabled" through October 17, 1978. That decision is final and binding and not now before the Court and the Court has no jurisdiction to review the actions of the Secretary on that earlier claim. Califano v. Sanders, 430 U.S. 99, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977). While the Secretary may waive the res judicata effect of an earlier application by reopening the prior application and issuing a decision on its merits, the ALJ explicitly based his decision denying plaintiff's claim for disability insurance benefits on her current March 27, 1980 application (Tr. 18).

In addition, the record reveals that plaintiff's insured status expired on December 31, 1978 (Tr. 245). Any condition that had its onset or became disabling after plaintiff's insured status expired may not be used as a basis for entitlement to disability insurance benefits. Jeralds v. Richardson, 445 F.2d 36 (7th Cir.1971). Plaintiff must establish that a severe medically determinable impairment that rendered her incapable of performing any substantial gainful activity existed between October 17, 1978 and December 31, 1978.

Plaintiff's original period of disability was established on the basis of several physical impairments in conjunction with a serious emotional problem (Tr. 171-175). Plaintiff's physical impairments, which were not disabling in and of themselves, included osteoporosis of the lumbar spine, degenerative arthritis of the lumbar spine, and diverticulosis of the colon (Tr. 171-175, 145). In his October 17, 1978 decision, the ALJ found that plaintiff's emotional problems were in remission to the point that she had regained the ability to engage in her former occupations and that her physical impairments were minimal (Tr. 214). Claimant has submitted no medical evidence to show that her condition worsened between October 17, 1978 and December 31, 1978. The law established that the burden of proof rests upon the plaintiff to establish her entitlement to disability insurance benefits under the Act. Lieberman v. Califano, supra, Wroblewski v. Califano, 609 F.2d 908 (7th Cir.1979). However, plaintiff has not submitted any medical report covering the time period in question. Plaintiff cites medical reports dated prior to October 17, 1978, and attempts to argue that these reports verify a period of disability existing between October 17, 1978 and December 31, 1978. These earlier medical reports have already been evaluated and taken into consideration by the ALJ before rendering his decision on October 17, 1978 affirming plaintiff's prior termination. Therefore these reports are not pertinent in connection with her current application for disability insurance benefits. The same medical evidence which warranted the earlier denial cannot now be...