Poulin v. Bowen
| Decision Date | 01 May 1987 |
| Docket Number | No. 84-5795,84-5795 |
| Citation | 817 F.2d 865,260 U.S.App.D.C. 142 |
| Parties | , 17 Soc.Sec.Rep.Ser. 717, Unempl.Ins.Rep. CCH 17,272 Valere POULIN, Appellant, v. Otis R. BOWEN, Secretary, United States Department of Health and Human Services. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
James R. Crotteau for appellant. Charles Horwitz also entered an appearance for appellant.
William J. O'Malley, Jr., Asst. U.S. Atty., with whom Joseph E. diGenova, U.S. Atty., and R. Craig Lawrence and Royce C. Lamberth, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. James N. Owens, Washington, D.C., also entered an appearance for appellee.
Before ROBINSON, Circuit Judge, and WRIGHT and McGOWAN, Senior Circuit Judges.
Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.
Appellant Valere Poulin, a Canadian citizen who worked intermittently in New England during the 1960's, indisputably is now totally disabled by schizophrenia. However, the Secretary of the Department of Health and Human Services denied his claim for disability benefits under the Social Security Act, 1 finding that his disability commenced after his statutory eligibility ceased. The District Court affirmed the Secretary's decision, 2 and appellant seeks reversal of that judgment. Because we find that the record lacks substantial evidence on which to base the Secretary's conclusions, we vacate the judgment of the District Court and remand to the Secretary for further proceedings.
Appellant was 41 years old at the time of the hearing. 3 His primary language is French; he can speak and understand some English. 4 He has a tenth-grade education. 5 He lives on a Canadian disability pension, 6 and has not worked since a brief period in 1975. 7 He lives near his parents and relies heavily on his family; 8 he has little contact with the outside world, 9 and cannot cash his pension checks or shop for groceries. 10 He believes that he can direct the dead and communicate telepathicly with televisions, radios, and microwave ovens. 11 His psychiatrists agree that his prognosis is extremely poor. 12 Like the District Court, this court "must note that it feels great sympathy for Mr. Poulin." 13
However, appellant's obvious present disability is not here the issue, and cannot alone entitle him to Social Security disability benefits. Rather, he may receive benefits only if his total disability, within the meaning of the Social Security Act, 14 commenced before his eligibility ceased. Accordingly, we direct our review to that period. 15
Appellant suffered his first known acute attack of schizophrenia in September, 1968, while working as a clerk at a logging camp in Maine. 16 He was hospitalized under the care of a psychiatrist, Dr. Yves Rouleau, treated with electroshock therapy and neuroleptics, and released from the hospital on a maintenance dosage of stelazine. 17 He continued treatment on a outpatient basis. 18 Three months after leaving the hospital, appellant took a job as a clerk for a firm near his home in Canada. He was able to maintain this job for eleven months, earning $3,411.20, and apparently performed satisfactorily. 19 However, while he was working, appellant's condition deteriorated to the degree that his doctor reinstated his psychotropic medication and reported that "he feels that he has been spied upon and watched by the others, he is always afraid that they treat[ ] him as a homosexual, at certain times, we wonder if he does not have certain auditory hallucinations." 20 His cousin testified at the hearing that appellant was extremely sick while working, and was only able to maintain his job through "great good will and courage." 21 The record is completely blank for the period between November, 1969, when appellant resigned from this job, and December, 1971, when he was again hospitalized after a suicide attempt, 22 suffering from an acute psychotic reaction. 23 In the meantime, on June 30, 1971, his eligibility for disability payments ran out.
Appellant first applied for disability benefits in 1974. This claim was denied a year later. 24 His second application, filed in 1980, 25 also met with initial administrative rejections that were affirmed by an administrative law judge after a hearing at which only appellant (with an interpreter's assistance), his brother, and his cousin testified. Appellant was unrepresented. 26 Poulin appealed to the Appeals Council, which again rejected his claim. 27 Poulin turned to the District Court for relief; when it dismissed his complaint, this appeal ensued.
We must first dispose of the Secretary's threshold contention that appellant's application for benefits is barred by res judicata because of his 1974 claim. 28 Social Security Administration regulations allow an administrative law judge to deny a claim based upon res judicata, 29 but the administrative law judge before whom appellant presented his claim specifically declined to do so. Rather, despite noting that the claim was "potentially subject to a res judicata dismissal," the judge declined to exercise his discretion to dismiss, stating that "because of the claimant's allegation of a continuing disability the current 1980 applications are being adjudicated on the merits." 30 The administrative law judge did not rest his decision to address the merits of appellant's claim on his separate authority to reopen the 1974 claim, 31 but rather specifically noted that "no basis for reopening [the 1974 claim] under the applicable regulations" existed. 32
The mere inapplicability of grounds for reopening does not, under the regulations, require the administrative law judge to exercise his power to dismiss on the basis of res judicata:
[E]ven though the subsequent claim may be the same claim for res judicata purposes, if it has nevertheless been reconsidered on the merits to any extent and at any administrative level, it is thereupon properly treated as having been, to that extent, reopened as a matter of administrative discretion.... In that event a final decision of the Secretary denying the claim is also subject to judicial review to the extent of the reopening. 33
By the administrative law judge's discretionary reopening of appellant's claim, the agency expressly waived applicability of administrative res judicata; it may not now advance this doctrine as an alternate basis for its decision. 34
Furthermore, any res judicata defense was also waived by the Secretary's failure to raise it in his answer to appellant's complaint. 35 Res judicata must be pleaded as an affirmative defense. 36 Failure to so plead constitutes a waiver of the defense. 37 The Secretary did not first present the res judicata defense until his post-answer motion for judgment of affirmance. 38 The District Court did not even address this tardy claim. The failure to plead res judicata, coupled with the express waiver at the administrative level, precludes its application now. 39
Congress has provided that "[t]he findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive." 40 The Supreme Court has defined substantial evidence in this context as "more than a mere scintilla ... such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." 41 This court must reexamine the entire record to determine if it contains substantial evidence to support the Secretary's determination. 42
We find that the administrative law judge's action in the instant case falls woefully short of this standard for several intertwining reasons. First, the judge failed adequately to develop the record. In particular, he ignored a 19-month evidentiary gap during appellant's benefits eligibility period--a period after Poulin left his last job, allegedly because of health; while he was under treatment for schizophrenia; and shortly after which he attempted suicide and was re-hospitalized. Second, the administrative law judge failed to give adequate weight to the testimony of appellant's treating physicians, in part because of a misunderstanding of the nature of the psychiatric evidence, and in part because of a possible misreading of one doctor's report. Finally, the judge's opinion rests upon a fundamental misconception of mental illness that the Secretary now rejects.
We have at least twice before had occasion to remind the agency that under its own regulation, 43 if not due process itself, 44 an administrative law judge has the affirmative duty to investigate fully all matters at issue and to develop the comprehensive record requisite for a fair determination of disability. 45 This duty becomes especially strict when, as here, the claimant is unrepresented by an attorney. 46 It is also increased when, as again here, the claimant has limited fluency in English. 47 Finally, the duty heightens when, as here, the claimant is the victim of a mental illness that may decrease his ability to represent himself. 48 Thus, in the case of an unrepresented non-English-speaking claimant disabled by schizophrenia, the administrative law judge's duty of record-development most certainly rises to its zenith, and absent such record-development the Secretary's decision cannot stand. We find that the administrative law judge failed in his "duty to probe and explore scrupulously all the relevant facts" 49 in several significant respects. 50
The most glaring among the evidentiary problems is the absence of information concerning the last 19 months of Poulin's eligibility for benefits. Appellant left a job at LaChance Brothers on November 28, 1969. 51 His eligibility for benefits did not expire until June 30, 1971. There was testimony at the hearing that Poulin left his job because of illness, 52 and Dr. Rouleau, his treating psychiatrist...
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