McGee v. Bowen
| Decision Date | 03 November 1986 |
| Docket Number | 85 C 8149.,No. 84 C 5093,84 C 5093 |
| Citation | 647 F. Supp. 1238 |
| Parties | Margrett McGEE, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant. Kelly V. THOMAS, Plaintiff, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant. |
| Court | U.S. District Court — Northern District of Illinois |
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Frederick J. Daley, Chicago, Ill., for plaintiffs McGee and Thomas.
Anton R. Valukas, U.S. Atty., Chicago, Ill., Linda A. Wawzenski (No. 84 C 5093), Barbara F. Lazarus (No. 85 C 8149), Asst. U.S. Attys. (Donna M. Weinstein, Regional Atty., Dept. of Health and Human Services, Chicago, Ill., Barbara Braznell, Barbara M. King, Asst. Regional Attys., of counsel), for defendant.
Both of these social security disability cases present issues of administrative res judicata, witness credibility and the role of expert opinion. Both claimants also ask to be evaluated under the new mental impairment listings, though for different reasons. Coincidentally, both claims also involve lost administrative records and reconstructed files. This court therefore treats them together in a single memorandum. For the reasons below, we reverse the Secretary in McGee, No. 84 C 5093, and award benefits, but uphold his denial of benefits in Thomas, No. 85 C 8149.
No one seems to know how many times Margrett McGee has applied for disability benefits under either Title II or Title XVI of the Social Security Act. In a Title II disability insurance benefits (DIB) claim filed September 18, 1979, she indicated two previous denials. That claim too was denied, apparently on res judicata grounds. None of these claims was pursued to the district court level. The instant case stems from a DIB claim filed on January 16, 1980. That claim was disallowed through the usual procedure up to the Secretary and she appealed to this court. Her file could not be located and the tape of her hearing was unusable, so after remand and another decision of the Appeals Council she got a new hearing before Administrative Law Judge (ALJ) Ed White on September 28, 1983.
Meanwhile, she had filed another DIB claim on February 19, 1982. Back on January 16, 1980, she had also filed an application for Title XVI supplementary security income (SSI) benefits, which somehow got lost in the shuffle. While these matters were all pending she made three more SSI applications: November 16 and December 31, 1980, and June 14, 1982. The record also indicates that she had been found disabled in 1974 on an SSI application and was paid more than $8,000, which the Secretary now considers an overpayment due to her husband's income in that period. All of her DIB and SSI claims have, we hope, been consolidated into this appeal.
Ms. McGee's numerous applications rest on her mental disability, diagnosed repeatedly as chronic undifferentiated schizophrenia. There is no dispute that she is now disabled from it. Indeed, ALJ White found her disabled for purposes of her SSI claim, on which she cannot collect because her husband's income and resources exceed the specified amounts. Rather, the question which has dogged all of her DIB applications is whether she was disabled on or before June 30, 1964, when her Title II insured status expired. That status is based on the last job she was able to keep more than a few months: sanding automobile steering wheels at a rubber company.
The psychiatric division of Cook County Hospital committed Ms. McGee to Manteno State Hospital on June 12, 1963, where she remained until September 11, 1963. She was under supervision until April 16, 1964. She was again hospitalized at Manteno in June and July 1965, and in August 1968. According to her testimony she has been treated continuously at the Lawndale Mental Health Center since her first release from Manteno. Records substantiate that treatment from 1968, corresponding to the tenure of her current staff psychiatrist. Her mother and husband testified to, in the words of the ALJ, her "bizarre associations, autistic preoccupations, delusions and hallucinations," which correlates with the diagnosis of schizophrenia (R. at 13).
As is frequently true of schizophrenics, Ms. McGee has periods of remission of symptoms. Apparently during one of those periods she worked for a time as a maid at the former Sherman House Hotel; during another, as a janitress at a laundromat. She worked during the last three quarters of 1966, earning $907.21 for the year, and the first and third quarters of 1967, earning $394.68 (R. at 163). Dr. Leo Goldman, now a psychiatrist, testified that he treated her in and before 1963, when he was still a general practitioner, and recommended psychiatric care for her then. He further offered his expert opinion that in cases of her type partial remissions of symptoms lasting as long as a year could occur, but there was a nearly 100 percent probability of recurrence. Remission sufficient for long-term ability to work is "most unusual" (R. at 114).
ALJ White denied all Ms. McGee's DIB applications. He found that Ms. McGee had not submitted any new and material evidence which would justify reopening the 1979 or earlier applications. He therefore concluded that the matter of her disability prior to the expiration of her insured status was res judicata as to the 1980 and subsequent applications.
He also, however, apparently proceeded through at least four, if not all five, steps of the process of sequential evaluation of her DIB claim. See Bowen v. City of New York, 476 U.S. ___, ___, 106 S.Ct. 2022, 2025, 90 L.Ed.2d 462 (1986) (delineating the steps). For example, he expressly found that she had a severe impairment (step 2), schizophrenia, but that the impairment was neither listed in nor equal to one in the listing of impairments (step 3). He found her not capable of doing her past work, which is a step 4 determination, but described that past work as work in a laundromat and as a maid. Because she held those jobs in 1966-67, that step 4 determination could apply only to her SSI claim. For the DIB claim he found that thanks to the occasional remissions of symptoms, Ms. McGee had not been disabled for a period of twelve consecutive months at any time prior to June 30, 1964. In reaching that finding he relied heavily on the evidence of her earnings in 1966 and 1967, particularly noting that she worked during four consecutive quarters in that period. This evidence must have substituted for either a step 4 assessment of her residual capacity or a step 5 decision on her capacity to perform other work. In any case, whether he found her capable in 1964 of doing her past work (step 4) or other work (step 5), he concluded that she was not disabled at any time on or before June 30, 1964.
Ms. McGee contends that the ALJ erred in applying res judicata to her DIB claim and that there is good cause to reopen her earlier claims. She further contends that the decision that she was not disabled before June 30, 1964 is not supported by substantial evidence. Alternatively, she asks for a remand to be considered under § 12.03 of the revised mental impairment listings, 20 C.F.R. Part 404, Subpart P, Appendix 1, § 12.03 (1986). The Secretary contends that his application of administrative res judicata is not subject to judicial review, that the ALJ's decision is supported by substantial evidence, and that under the Disability Benefits Reform Act of 1984 Ms. McGee is not eligible for consideration under the new listings.
Kelley Thomas first made a DIB application on June 12, 1980, claiming that he could not work due to uncontrolled high blood pressure and a slipped disc. He was found not disabled, which became the final decision of the Secretary after it was affirmed by the Appeals Council. He did not appeal. He then applied for SSI benefits on May 10, 1982, and made a second DIB application on January 13, 1983, claiming disability from angina pectoris and a herniated disc. The applications were consolidated for hearing before ALJ John Mondi. Since many of the exhibits from Thomas' first DIB claim had been lost, the file was reconstituted.
Thomas last worked in March 1979. He therefore ceased to be insured for DIB purposes as of June 30, 1981. ALJ Mondi found no new and material evidence relevant to his condition before that date and concluded that Thomas' DIB claim was res judicata. As to the SSI claim, Thomas submitted notes from a treating physician, Dr. Delgado, and an examining physician, Dr. Kline, briefly offering their opinions that he is unable to work. The record also contains an extensive consultative examination by Dr. Rabinowitz, which the ALJ summarized as follows:
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