Perkins v. Chater

• Citation: 107 F.3d 1290
• Decision Date: 05 March 1997
• Docket Number: No. 96-1275,96-1275
• Parties: , Unempl.Ins.Rep. (CCH) P 15692B Alfred PERKINS, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 1290

107 F.3d 1290

52 Soc.Sec.Rep.Ser. 784, Unempl.Ins.Rep. (CCH) P 15692B

Alfred PERKINS, Plaintiff-Appellant, v. Shirley S. CHATER, Commissioner of Social Security Defendant-Appellee.

No. 96-1275.

United States Court of Appeals Seventh Circuit.

Argued Sept. 13, 1996.

Decided March 5, 1997.

Frederick J. Daley, Eric Schnaufer, Chicago, IL, for Plaintiff-Appellant.

Thomas P. Walsh, Office United States Attorney, Civil Division, Chicago, IL, Suzanne E. Duman, Department of Social Security Administration, Office of the General Counsel, Region V, Chicago, IL, for Defendant-Appellee.

Before RIPPLE, DIANE P. WOOD, and EVANS, Circuit Judges.

DIANE P. WOOD, Circuit Judge.

Alfred Perkins is seeking disability insurance benefits on the ground that he has been disabled due to alcoholism, high blood pressure, heart trouble, and poor vision since at least December 2, 1987. He was ultimately unsuccessful in his efforts at the Social Security Administration, both initially and through his hearing before an administrative law judge and the Appeals Council. His suit for review of the administrative determinations, filed pursuant to 42 U.S.C. § 405(g), was similarly unsuccessful in the district court. Perkins now appeals to this court, claiming that the administrative decision to deny his application for benefits was not supported by substantial evidence, that the Appeals Council committed legal error in refusing to give plenary review to the ALJ's decision, and that the ALJ erred in refusing to apply Social Security Ruling 83-20 to his case. Having considered these issues and the other ancillary points Perkins raises, we find no error in the district court's judgment and we therefore affirm.

I

The critical background of this case is almost entirely procedural. On February 26, 1990, Perkins applied for Supplemental Security Income (SSI) payments under Title XVI of the Social Security Act, claiming that he had been disabled by alcoholism since 1985. This application was denied both initially and on reconsideration. On July 12, 1990, he requested a hearing on the SSI application. He also filed the application at issue here for Disability Insurance Benefits (DIB), claiming as noted that he had been disabled due to alcoholism, high blood pressure, and various other problems since December 2, 1987. Administrative Law Judge George A. Bowman, Jr., held a consolidated hearing on the SSI and DIB claims on December 13, 1990, at which Perkins appeared accompanied by counsel. On May 15, 1991, ALJ Bowman found that Perkins did not have a "severe" impairment on or before March 31, 1989, when his insured status expired, and thus he was not entitled to DIB. The ALJ also found that Perkins was "disabled" as of the date he filed for SSI. On Perkins' petition for review, the Appeals Council vacated that decision and remanded to the ALJ for further consideration.

Perkins had a second hearing before ALJ Bowman on October 16, 1992, at which he again appeared with his lawyer. A vocational expert testified this time, as well as Mr. Perkins himself. On November 16, 1992, ALJ Bowman issued an opinion finding that during all relevant periods, Perkins seldom had deficiencies in concentration, persistence, or pace, and that he thus retained residual functional capacity to perform within a limited range of light work. This meant that Perkins was not "disabled" on or before the date his insured status expired, and thus the ALJ reconfirmed his earlier finding that Perkins was not entitled to DIB. Applying the Medical-Vocational Guidelines to Perkins' case, however, the ALJ found on remand that Perkins was "disabled" as of his 55th birthday, January 9, 1991, but not before. The latter finding entitled Perkins to SSI benefits beginning as of his 55th birthday. (As we note briefly below, the Senior Citizens' Right to Work Act of 1996, P.L. 104-121, 110 Stat. 847 (1996), at the very least may cut off his right to continued SSI benefits after January 1, 1997, to the extent that his alcoholism was a contributing factor to his disability. § 105(a)(1), amending 42 U.S.C. § 423(d)(2). Questions relating to his SSI benefits are not involved in this appeal.)

On December 28, 1992, Perkins asked the Appeals Council to review the November 16 decision. The Council gave him an opportunity to submit additional evidence or argument, and on April 14, 1993, he did so. His "new evidence" consisted of a review of the record and a Mental Residual Functional Capacities Assessment that psychologist Dr. William Reich had performed on March 19 at the request of Perkins' attorney. Apparently without this new material in its possession, the Council denied review in an order dated April 27, 1993. Over a year later, it rectified its failure to consider Perkins' additional filing, but it reaffirmed its decision not to grant the request for review. In a letter dated May 25, 1994, the Council informed Perkins that it had reviewed the entire record, including the new material, and had concluded that there was no basis to grant the request under either 20 C.F.R. § 404.970 (relating to review of DIB claims where "new and material evidence" is presented) or 20 C.F.R. § 416.1470 (same review of SSI claims). Discussing the new evidence specifically, the Appeals Council "decided that neither the contentions nor the additional evidence provides a basis for changing the decision."

Perkins filed his suit for review of the agency decision under § 405(g), limiting his claims to the denial of the disability benefits and the Appeals Council's decision to deny review. The district court ordered the parties to file cross-motions for summary judgment, referred the case to Magistrate Judge Edward Bobrick, and on September 22, 1995, adopted the Magistrate Judge's February 16, 1995, Report and Recommendation that summary judgment be granted for the Commissioner. The district court wrote its own opinion on the issue relating to the Appeals Council's denial of review, and wrote an additional brief opinion denying Perkins' motion to reconsider.

II

Initially, we address briefly the Commissioner's argument that this case is moot as a result of the recently-enacted Senior Citizens' Right To Work Act of 1996. Section 105(a)(1) of the Act, which amends 42 U.S.C. § 423(d)(2), states:

An individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction would (but for this subparagraph) be a contributing factor material to the Commissioner's determination that the individual is disabled.

42 U.S.C. § 423(d)(2)(C). The Act goes on to specify that the amendments:

shall apply to any individual who applies for, or whose claim is finally adjudicated by the Commissioner of Social Security with respect to, benefits under title II of the Social Security Act based on disability on or after the date of the enactment of this Act, and, in the case of any individual who has applied for, and whose claim has been finally adjudicated by the Commissioner with respect to, such benefits before such date of enactment, such amendments shall apply only with respect to such benefits for months beginning on or after January 1, 1997.

42 U.S.C.A. § 405, note. The Commissioner argues here that the Act applies to Perkins' case because it was pending on appeal as of the date of enactment. On this assumption, she argues that neither this court nor the agency on remand may base any finding of his entitlement to DIB on his alcoholism.

Perkins' claim for DIB did not rest solely on his alcoholism; he claimed also that he was disabled due to hypertension, back problems, chronic obstructive pulmonary disease, neurogenic bladder, and burning feet. Therefore, even under the Commissioner's interpretation of the new legislation, if Perkins were entitled to a remand on the DIB claim it would be necessary to decide whether his alcoholism was a "contributing factor material to the Commissioner's determination" that he was disabled. Most of the courts that have considered the issue thus far have concluded that the new legislation applies only to cases in which the Commissioner's decision was final as of the date of enactment, following the plain language of § 105(a)(5)(A). See, e.g., Newton v. Chater, 92 F.3d 688, 695-96 & n. 3 (8th Cir.1996); Santos v. Chater, 942 F.Supp. 57, 63-64 (D.Mass.1996); Martin v. Chater, 938 F.Supp. 347, 348 (W.D.Va.1996). But see Connor v. Chater, 947 F.Supp. 56, 60 (N.D.N.Y.1996) (Commissioner's decision not "final adjudication" if appeal is pending in federal courts); Armstrong v. Chater, 949 F.Supp. 808, 810 (W.D.Okl.1996) (same). If finality at the Commissioner level is all that is required, an applicant like Perkins would be able to receive DIB benefits from his onset date up to January 1, 1997, even if alcoholism significantly contributed to his disability. If the word "Commissioner" we highlighted above really meant "Commissioner and all levels of judicial review," then applicants like Perkins would immediately need to meet the new standards. Perkins appears to have the better argument from a plain language standpoint, but we need not resolve this issue today because we are affirming the decision to deny DIB benefits in any event. One way or the other, Perkins' appeal presents a live controversy, to which we now turn.

We consider first the procedural issue Perkins raises, namely, whether the Appeals Council erred when it refused to conduct a full-blown review of the ALJ's decision. Its letter of May 25, 1994, reveals instead a sort of "quick look" review of the additional evidence from Dr. Reich and Perkins' supplemental legal arguments. Perkins claims, in essence, that this was not an option for the Appeals Council under the governing regulation. Instead, he asserts, the Appeals Council either had to refuse altogether to look at the additional materials, or it had to give plenary appellate review with all the trappings. See 20 C.F.R. §§ 404.973-404.979 (1996)...