Shaw v. Chater

• Decision Date: 01 August 1999
• Docket Number: Nos. 96-6134,DEFENDANT-APPELLEE,PLAINTIFF-APPELLANT,99-6119,s. 96-6134
• Parties: (2nd Cir. 2000) ALBERT SHAW,, v. SHIRLEY S. CHATER, AS COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
• Court: U.S. Court of Appeals — Second Circuit

Page 126

221 F.3d 126 (2nd Cir. 2000)

ALBERT SHAW, PLAINTIFF-APPELLANT, v. SHIRLEY S. CHATER, AS COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT-APPELLEE.

Nos. 96-6134, 99-6119

August Term, 1999

UNITED STATES COURT OF APPEALS

SECOND CIRCUIT

Submitted Oct. 27, 1999

Decided July 20, 2000

Appeal from two judgments of the United States District Court for the Eastern District of New York (Spatt, J.). [Copyrighted Material Omitted] Aba Heiman, Woodbury, New York (Scheine, Fusco, Brandenstein & Rada, P.C., Woodbury, New York, of counsel), submitted a brief for Plaintiff-Appellant.

Gail A. Matthews, Assistant United States Attorney, Brooklyn, New York (Loretta E. Lynch, United States Attorney Deborah B. Zwany, Varuni Nelson, Kathleen A. Mahoney, Assistant United States Attorneys, Eastern District of New York, Brooklyn, New York, of counsel), submitted a brief for Defendant-Appellee.

Before: Cardamone, Pooler, Circuit Judges, and Mordue^* District Judge.

Cardamone, Circuit Judge

Albert Shaw (claimant or plaintiff) appeals from two judgments of the United States District Court for the Eastern District of New York (Spatt, J.), entered on March 21, 1996 (1996 judgment) and on March 27, 1999 (1999 judgment), Shaw v. Apfel, No. CV 97-3820 (E.D.N.Y. March 27, 1999). The 1996 judgment denied claimant mandamus review of an administrative decision refusing to consolidate his claim for Social Security Disability (SSD) benefits with his claim for Supplemental Security Income (SSI) benefits, Shaw v. Shalala, No. CV 94-3928 (E.D.N.Y. March 21, 1996). Because the two applications were not filed at the same time, the district court ruled that the Administrative Law Judge's (ALJ) refusal to consolidate the claims was not an abuse of his discretion sufficient to invoke mandamus. The 1999 judgment affirmed the ALJ's conclusion that claimant did not qualify for SSD benefits because he was not "disabled" during the relevant time period. Shaw appeals from both judgments.

To put the circumstances of this appeal in clear perspective, we analogize its facts to those at a gaming table in a scenario where the SSA is dealer and complainant is playing against the house. In this scenario the dealer did not put all its cards on the table and the player, seeing the cards the dealer showed and thinking he had a winning hand, bet accordingly, only to learn later that the dealer had another, unseen card up its sleeve which, when it was played, gave the house a winning hand and the player a losing hand. Essentially, that is what befell claimant in the case before us.

BACKGROUND

A. Prior Legal Proceedings

Claimant applied for SSI and SSD benefits after suffering a series of automobile accidents that he asserted disabled him. The application process resulted in his spending many years navigating through the Social Security Administration's labyrinthine application procedures. He first filed concurrent applications for SSD and SSI benefits with the Department of Health and Human Services on October 8, 1985. Both applications were denied. He reapplied on June 30, 1992 thinking that a single application form for SSI benefits would also serve as an application for SSD benefits because of the following caption printed in large, bold-face type on the SSI application

I am . . . applying for Supplemental Security Income and any federally administered State supplementation under title XVI of the Social Security Act, for benefits under the other programs administered by the Social Security Administration, and where applicable, for medical assistance under title XIX of the Social Security Act.

The Social Services claims representative who assisted Shaw with his application did not inform him otherwise. As a result, he did not fill out a separate application for SSD benefits when he filed for SSI benefits.

Upon Shaw's counsel becoming aware -- shortly before his October 15, 1993 hearing before an ALJ -- that the only form on his June 30, 1992 reapplication was for SSI benefits, he promptly submitted an application for SSD benefits to the ALJ on the day of the hearing. The ALJ awarded SSI benefits to Shaw, but refused to consolidate the two claims or even consider his application for SSD benefits. The Appeals Council affirmed the ALJ's decision on July 11, 1994.

Shaw then sought mandamus review in district court of the administrative refusal to consolidate asserting that the SSI application was an actual and/or protective filing for SSD benefits, and that the ALJ had a non-discretionary duty to decide his claims concurrently. This challenge to the administrative action was premised not only on the referred-to caption that appeared in bold print on the SSI application, but also on a policy statement contained in the Social Security Administration's (SSA) Program Operations Manual Systems (POMS) SI 00510.005B:

Policy -- Social Security Benefits

. . . . .

Because all applications for title XVI payments [SSI benefits] are also applications for title II benefits [SSD benefits], adjudicators must take steps to determine whether the claimant is eligible for title II [benefits]. Unless an individual files a title II application concurrently with the title XVI application, the title II aspects of the title XVI application must always be closed out. (emphasis added)

The district court at first granted the Secretary's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction on the ground that plaintiff had not yet exhausted his administrative remedies in that no final decision had been reached on Shaw's still-pending disability claim. On June 2, 1997 the Appeals Council denied Shaw's request for review of the ALJ's finding that he was not "disabled" during the relevant time period to qualify for SSD benefits. When plaintiff again sought review in federal court, the district court in 1999 granted the Commissioner's motion for judgment on the pleadings, ruling plaintiff not "disabled" for the purposes of SSD benefits.

B. Medical Record Pertaining to Disability

We set forth the facts relating to the 1999 judgment that held Shaw not disabled. Formerly employed as a machinist with a high school education, Shaw was seriously injured in four separate auto accidents in 1977, 1981, 1986, and 1989. His injuries and impairments have been extensive, including pinched nerves, memory loss, cognitive defects, a herniated disc, a club foot, difficulty in climbing stairs without pain, muscle spasms, headaches, and dizziness. He has been treated primarily by one physician, Dr. Arminius Cassvan, who concluded that claimant was totally disabled. From time to time he has also been seen by Dr. Aubrey Lewis and Dr. Milford Blackwell, a board-certified neurologist.

Shaw last worked regularly in 1977 before his auto accident of that year. After that he was no longer able to work as a machinist. When he visited Dr. Cassvan for the first time it was found that his injuries limited his flexibility, stair climbing and ability to sit or stand for prolonged periods. Later physical examination revealed S1 root compression and extensive paraspinal muscle spasms. The treatment prescribed was physical therapy. After his 1981 accident, EMG testing found mild to moderate neuropathy and mild carpal tunnel syndrome. The treatment again was physical therapy. From March 1982 to March 31, 1985 claimant received no medical treatment. He testified that his no-fault insurance had run out and he could not afford to pay for further treatment. After the 1986 accident he was diagnosed as having a frozen shoulder and weakness in his right upper arm. Soft tissue calcification, limiting the motion of his right hip, was observed. An elastic knee brace and physical therapy was ordered. Following his 1989 accident, Shaw was treated by Dr. Meyer, an orthopedist, and referred by an auto insurance carrier to Dr. Blackwell, who determined that plaintiff had been disabled since April 12, 1989, the date of his accident.

At the time Shaw commenced the instant action in federal court, the Social Security Administration had already adjudged him "disabled" and therefore entitled to SSI benefits under Title XVI of the Social Security Act as of June 30, 1992, the date of his application. But the SSA ruled against plaintiff with respect to his claim for disability benefits because it found he was not disabled as of March 31, 1985, the date he was last insured for SSD insurance purposes. Plaintiff maintains he was disabled as of March 1982, three years earlier and, pursuant to the Social Security Act, 42 U.S.C. § 405(g), sought review of this final administrative determination. Thus, the specific issue the district court decided against plaintiff was that he was not "disabled" on March 31, 1985, the last date of his fully insured status.

In this consolidated appeal, Shaw appeals from the 1999 judgment and reinstates his earlier appeal from the 1996 judgment. Shaw's earlier appeal is relevant because if we reverse the 1999 judgment and determine that plaintiff is "disabled" for disability purposes, then the ALJ's refusal to decide both claims concurrently affects the date from which Shaw is entitled to receive such benefits.

DISCUSSION

I The 1999 Judgment

A. Eligibility for SSD Benefits

An applicant must be insured for disability insurance benefits to be eligible for SSD benefits. 42 U.S.C. § 423(a)(1)(A), (c)(1); 20 C.F.R. §§ 404.101(a), 404.110 to 404.130, 404.130 to 404.133; Arnone v. Bowen, 882 F.2d 34, 37 (2d Cir. 1989). This translates into two requirements: the applicant must have 1) adequate social security earnings to be "fully insured," 20 C.F.R. § 404.110 through § 404.115; and 2) "disability insured status" in the quarter he became disabled or in a later quarter in which he was disabled, C.F.R. § 404.131(a).

A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported...