Pugh v. Bowen, 87 C 0922.

• Decision Date: 03 September 1987
• Docket Number: No. 87 C 0922.,87 C 0922.
• Citation: 670 F. Supp. 812
• Parties: Harvey PUGH, Plaintiff, v. Otis R. BOWEN, Secretary of the Department of Health and Human Services, Defendant.
• Court: U.S. District Court — Northern District of Illinois

670 F. Supp. 812

Harvey PUGH, Plaintiff, v. Otis R. BOWEN, Secretary of the Department of Health and Human Services, Defendant.

No. 87 C 0922.

United States District Court, N.D. Illinois, E.D.

September 3, 1987.

Jeffrey A. Rabin, Pfeffer, Becker & Cerveny, Ltd., Chicago, Ill., for plaintiff.

Anton R. Valukas, U.S. Atty. for N.D. Ill., Thomas Walsh, Asst. U.S. Atty., U.S. Dept. of Justice, Chicago, Ill., for defendant.

MEMORANDUM OPINION AND ORDER

ZAGEL, District Judge.

This action is for judicial review of a determination of entitlement to disability insurance benefits and a period of disability. The issue here is narrower than ordinarily occurs in these types of cases since disability is unquestioned as of November 2, 1985. The plaintiff, however, argues that the onset of disability occurred on March 31, 1982.

The issue is further narrowed by virtue of certain procedural rules. Pugh filed his first disability application on October 27, 1982 alleging disability on March 31, 1982. The application was denied on December 22, 1982 at the initial determination stage, and Pugh took no appeal. On September 16, 1983 Pugh tried again and was finally denied on May 4, 1984 (after some delay due in part to Pugh's failure to appear for a medical examination). This time Pugh sought an administrative hearing, but his request was dismissed by an Administrative Law Judge (ALJ) and placed for the hearing. He did not seek any further review of this order.

On April 19, 1985 Pugh made his third attempt for disability benefits and, as in prior cases, claimed its onset was March 31, 1982. His claim was initially denied and then denied on reconsideration, but he finally prevailed in part before an ALJ who heard his case on April 7, 1986. On June 11 the ALJ found Pugh disabled commencing November 2, 1985 but not prior thereto.

At this last hearing Pugh requested that the ALJ reopen the earlier application because the April 19, 1985 application was made within one year of the prior ALJ's dismissal (September 26, 1984). The rule providing for such reopening within one year refers to a period of one year from the initial determination. See 20 C.F.R. Sec. 404.988(a). The April 19, 1985 application is more than a year removed from the initial determination of the prior application which occurred on November 21, 1983. Reopening was not therefore available to Pugh. Moreover, the ALJ refused to reopen and the Court is without jurisdiction for review of the decision not to reopen. Califano v. Sanders, 430 U.S. 99, 107-09, 97 S.Ct. 980, 985-86, 51 L.Ed.2d 192 (1977); Watters v. Harris, 656 F.2d 234, 238 (7th Cir.1980).

Pugh argues that the prior applications were in fact reopened because the ALJ considered the old evidence. The Court agrees that the ALJ considered the entire medical record and believes that had he not done so Pugh would complain, rightly, of his failure to do so. But review of all the medical evidence in the case (including that which was previously submitted) is not the equivalent of reviewing the merits of the claims decided in prior proceedings. There is nothing in the record to indicate that the merits of the old petitions were considered. What was considered was the entire medical file containing new and old matters to enable the ALJ to decide present disability and its onset. The ALJ found...