United States District Court, Northern District of Illinois, E.D
August 6, 1985
TOMMY BLACKBURN, PLAINTIFF,
MARGARET M. HECKLER, SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT.
The opinion of the court was delivered by: Shadur, Judge.
MEMORANDUM OPINION AND ORDER
Tommy Blackburn ("Blackburn") seeks judicial review of a final decision
by the Secretary of Health and Human Services ("Secretary") denying
Blackburn disability insurance and supplemental security income
benefits, initially applied for under Social Security Act ("Act") §§
216(i), 223 and 1602, 42 U.S.C. § 416(i), 423 and 1381a. After a
March 12, 1984 evidentiary hearing (the "Hearing"), on May 18, 1984
Administrative Law Judge Irving Stillerman ("ALJ Stillerman" or simply
the "ALJ") denied Blackburn's application. Blackburn then exhausted his
administrative remedies in proper sequence (a process that resulted in
the ALJ's decision becoming Secretary's) and brought this action against
Secretary pursuant to Act § 205(g), 42 U.S.C. § 405(g).
Because this action stands in a different posture from the mine run
social security case brought to this Court, Blackburn has not followed
the typical course of filing a motion for summary judgment. Rather
— for reasons this opinion will explore in due course — the
has moved for a remand to the ALJ for further consideration. Secretary,
however, seeks summary judgment affirming the ALJ's decision. For the
reasons stated in this memorandum opinion and order, each litigant's
motion is granted in part and denied in part.
Blackburn, who was 56 years old at the time of the hearing before ALJ
Stillerman and who has completed eight years of schooling, was born in
Kentucky, where he worked for a number of years as a coal miner. Since
moving to Chicago some 15 years ago, he has worked primarily as a gas
station attendant and as a machine operator for several manufacturing
concerns. Most recently he worked as a laundromat attendant, a job that
ended in 1978 when ownership of the laundromat changed.
Blackburn has suffered a number of injuries (some work-related) over
the course of his life. Among them were amputation, of the top portion of
his left thumb, a broken jaw as a result of which he can open his mouth
no wider than an inch, and broken ribs. In addition he suffers "mild
respiratory impairment" (R. 224) deriving in part from his work in the
coal mines and as a result of which he receives black lung benefits.
Those impairments, which Blackburn has suffered for some time, are not
the principal basis for his application for disability benefits. Rather
Blackburn focuses on a series of hospitalizations beginning in 1978 for
1. In July 1978 Blackburn was admitted to Swedish
Covenant Hospital ("Swedish Covenant"), suffering from
black vomiting, black stools and abdominal pain. Tests
revealed no ulcer or other course of bleeding. Two
days after admission Blackburn was discharged at his
own insistence. His discharge summary (R. 109)
reflects a diagnosis of upper gastrointestinal
bleeding of unknown etiology and describes Blackburn
as a "moderate alcohol abuser." Elsewhere in the
hospital records he is described as a "known
2. In September 1981 Blackburn was again admitted to
Swedish Covenant, this time complaining of shortness
of breath and abdominal pain. He was diagnosed as a
habitual alcoholic suffering from acute ethanol
intoxication (R. 179). While in the hospital he
suffered delirium tremens episodes, and tests gave
some evidence of myocardial injury, perhaps induced by
alcohol. Against medical advice Blackburn signed
himself out of the hospital two days after he had been
admitted (R. 180).
3. In December 1982 Blackburn was admitted to
Swedish Covenant, again with gastrointestinal
bleeding. He was released after five days with a
diagnosis of possible peptic ulcer disease (R. 197).
4. In October 1983 Blackburn was admitted to Swedish
Covenant once again, this time with a diagnosis of
chronic alcoholism, duodenal ulcer, iron deficiency
anemia and chronic obstructive lung disease (R. 202).
He was released ten days later.
Other evidence on the administrative record includes:
1. a January 19, 1979 report by consulting physician
Dr. S. Patel, stating Blackburn suffered from possible
peptic ulcer syndrome in addition to the impairments
deriving from his earlier work-related injuries;
2. a January 1, 1984 report by Dr. Iraj Delfani, who
has treated Blackburn since October 1983, reflecting
Blackburn suffers from chronic alcoholism that has
resulted in brain damage, a duodenal ulcer and iron
deficiency anemia (Dr. Delfani considered Blackburn
disabled, primarily on account of the alcohol-induced
brain damage); and
3. a March 6, 1984 psychological/occupational
evaluation of Blackburn by psychologist William
Fischer, finding Blackburn's IQ in the mid-70s and
describing Blackburn as "a psychologically, if not
physically, impotent individual who carries the
diagnosis of alcoholism, organic brain dysfunction
with psychosis, and is not capable of participating in
any kind of substantial gainful activity" (R. 221).
In support of his current motion Blackburn has offered additional
medical evidence discovered after the administrative record was closed.
It reflects three hospitalizations in December 1979 and January 1980:
1. On December 16, 1979 Blackburn was admitted to
Ravenswood Hospital ("Ravenswood"), complaining he had
been coughing and vomiting blood. His discharge
summary (Ex. C 44-45) reflects a history of heavy beer
consumption and a diagnosis of possible gastric
cancer. Blackburn discharged himself against medical
2. On January 6, 1980 Blackburn was again admitted
to Ravenswood for further tests designed to confirm or
the diagnosis of gastric cancer. Blackburn again left
the hospital before tests could be completed.
3. On January 22, 1980 Blackburn was once more
admitted to Ravenswood. This time the contemplated
tests were performed, revealing no tumor cells.
Blackburn was discharged with a diagnosis of gastric
ulcer, to be followed on an outpatient basis.*fn1
Blackburn's Claims History
Blackburn's claims posture is complicated both by eligibility
regulations and by his prior history of filing disability claims. To
begin with the regulations, a claimant is ineligible for either
disability insurance or supplemental security income benefits if he or
she does not satisfy the special earnings requirements set out in 20
C.F.R. § 404.130.*fn2 Under Section 130(b), which states the
applicable rule for present purposes, Blackburn must have acquired 20
"quarters of coverage" in the 40-calendar-quarter (ten-year) period
ending with the calendar quarter in which he seeks the commencement of
benefits. Because each quarter of coverage is credited on the basis of
the claimant's covered earnings in that quarter (Sections 140 to 146),
and because Blackburn has had no covered earnings since 1977, he
satisfied the special earnings requirement only through June 30, 1979
(R. 97). That termination of Blackburn's insured status under the Act
means he could be entitled to benefits only for a period of disability
that began no later than June 30, 1979.
Blackburn first applied for disability benefits in July 1978, claiming
he had been unable to work since July 1977. That application was
initially denied. Pursuing his administrative remedies, Blackburn
requested an evidentiary hearing, which took place sometime in 1979.
Blackburn represented himself at that hearing. On June 8, 1979
Administrative Law Judge Dale Garwal again denied Blackburn's application
The claimant was not under a "disability" as defined
in the Social Security Act, as amended, at any time up
to the date of this decision.
Blackburn's request for Appeals Council review of that decision was
denied, and he was notified of his right to seek judicial review of the
hearing decision. Blackburn did not pursue that option.
While the record is not altogether clear, it appears Blackburn again
applied for disability benefits in 1980 (Ex. C 3) and perhaps 1981 (Ex. C
2). Neither application was pursued to the point of an evidentiary
hearing, because Blackburn either failed to seek review or failed to
pursue his administrative remedies in proper sequence. For present
purposes those two aborted applications are of no consequence.
Blackburn was thus left in a difficult situation. He had been found not
disabled as of June 8, 1979, yet his eligibility for commencement of
benefits had terminated after June 30, 1979. Blackburn therefore was
compelled either (1) to prove he had become disabled between June 8 and
June 30, 1979 or (2) to succeed in having Secretary reopen the June 8
decision. He pursued both courses before the ALJ with no success. ALJ
1. More than four years had passed since the June
8, 1979 decision, barring its reopening under the
applicable regulations. That rendered the 1979
decision binding on Blackburn as a matter of
administrative res judicata.
2. Evidence before the ALJ did not show Blackburn
had an impairment before June 30, 1979 that was
enough to limit his ability to perform basic work
Blackburn challenges both decisions.
Refusal To Reopen and Administrative Res Judicata
ALJ Stillerman based his decision not to reopen the 1979 decision on
A determination, revised determination, decision, or
revised decision may be reopened —
(a) Within 12 months of the date of the notice of
the initial determination, for any reason;
(b) Within four years of the date of the notice of
the initial determination if we find good cause, as
defined in § 404.989, to reopen the case.
Then the regulation goes on to specify particular situations — none
applicable to this case — sufficient to warrant reopening at any
time. Noting the 1979 decision had been made well over four years before
the Hearing (where Blackburn first raised the possibility of reopening
the decision), ALJ Stillerman held he had no basis in the regulations for
granting the sought-after relief.*fn3
Accordingly he concluded (R. 8):
[T]he prior Administrative Law Judge's decision stands
as the final decision of the Secretary as to the
claimant's condition through June 8, 1979.
Califano v. Sanders, 430 U.S. 99
, 108, 97 S.Ct. 980, 985, 51 L.Ed.2d
192 (1977) teaches Secretary's refusal to reopen a prior decision and her
concomitant invocation of administrative res judicata are not generally
open to district court review. As Steebe v. United States Railroad
Retirement Board, 708 F.2d 250
, 255 (7th Cir.), cert. denied, ___ U.S.
___, 104 S.Ct. 496
, 78 L.Ed.2d 689 (1983) put it (interpreting the Social
Security Act en route to apply the same reasoning to a Railroad
Retirement Act claim):
In Sanders, the Court held that neither section 10 of
the Administrative Procedure Act nor section 205(g) of
the Social Security Act afforded district courts
subject matter jurisdiction to review a decision of
the Secretary of Health and Human Services not to
reopen a previously adjudicated claim for Social
But Sanders, 430 U.S. at 109, 97 S.Ct. at 986 did recognize an exception
to that general rule where the refusal to reopen the decision raised a
constitutional question not suited to resolution by administrative
process (and see Steebe, 708 F.2d at 256).
That exception does not encompass the case where the only flaw shown is
a claimant's non-representation by counsel at an administrative hearing.
Holland v. Heckler, 764 F.2d 1560, 1561-63 (11th Cir. 1985) (per
curiam). Nor may the exception be invoked on the theory it violates due
process to refuse to reopen a decision that itself violated the
applicant's due process rights. Steebe, 708 F.2d at 256. One narrow window
has been opened by a number of courts, exemplified by Elchediak v.
Heckles 750 F.2d 892, 893 (11th Cir. 1985):
[A] claimant suffering from mental illness raises a
colorable constitutional claim when he asserts that
his mental illness precluded him from litigating his
claim because it prevented him from proceeding from
one administrative level to another in a timely
Accord, Penner v. Schweiker, 701 F.2d 256
, 260-61 (3d Cir. 1983); Parker
v. Califano, 644 F.2d 1199
, 1201-03 (6th Cir. 1981); Shrader v. Harris,
631 F.2d 297
, 300-02 (4th Cir. 1980).
Blackburn does not claim for himself the mental impairment exception
recognized by Elchediak and like cases.*fn4 Instead he invokes the
authority of Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir. 1982)
Res judicata of administrative decisions does not
acquire the rigid finality of judicial proceedings. .
. . Where the record is patently inadequate to support
the findings the ALJ made, application of res judicata
is tantamount to a denial of due process. Fairness in
the administrative process is more important than
finality of administrative judgments.
Blackburn claims he was a chronic alcoholic and therefore mentally
impaired at the time of the 1979 hearing. As a result he says he was
unable to represent himself adequately — like many alcoholics, he
had then denied he had a drinking problem — and the ALJ did not
meet his responsibility to assure a full examination of the evidence in a
case where the claimant is not represented by counsel.
Because no transcript of the 1979 hearing is before this Court, it is
difficult to assess the adequacy of that proceeding. But from the 1979
decision alone, it does seem the hearing officer fairly took account of
the record evidence before him — evidence that included only one
reference to Blackburn's alcoholism (the July 1978 Swedish Covenant
record referring to him as a "moderate alcohol abuser"). At least the
limited evidence as to the 1979 record tendered this Court is not, in
Thompson terms, "patently inadequate to support the findings the ALJ
Moreover, it is doubtful Thompson represents the law in this Circuit.
Effectively the Thompson doctrine holds that where an administrative
decision has violated due process, a later refusal to reopen that
decision does so as well. But that proposition was specifically negated
by our Court of Appeals in Steebe, 708 F.2d at 256.*fn5
All of the preceding discussion compels a conclusion this Court lacks
subject matter jurisdiction under Act § 205(g) to review ALJ
Stillerman's (1) refusal to reopen the 1979 decision and (2) invocation
of administrative res judicata.*fn6 Blackburn's claim must be dismissed
in those respects.
Findings as to the June 8 to June 30, 1979 Period
Blackburn advances three reasons supporting remand to determine whether
became disabled between June 8, 1979, the date of the prior decision, and
June 30, 1979, the date his insured status expired:
1. New medical evidence has come to light since the
Hearing, indicating Blackburn was disabled before June
2. ALJ Stillerman failed to consider post-June 30,
1979 medical evidence that indicated Blackburn's
disability before that date.
3. ALJ Stillerman improperly applied the severity
requirement of Section 1520(c) to deny Blackburn's
Those contentions will be dealt with in turn.
Although the ALJ's decision (like the 1979 decision) addresses a number
of claimed physical impairments, Blackburn's remand motion is focused on
the proposition he is — and was — disabled because he is an
alcoholic. Without question that proposition accurately describes his
present condition. Dr. Delfani's report, psychologist Fischer's opinion,
hospital records and the Hearing evidence all strongly suggest Blackburn
is incapable of substantial gainful activity as a result of alcohol
abuse. That, however, is not enough: Blackburn must show he became so
impaired between June 8 and June 30, 1979. Accordingly his first two
arguments for remand are directed to that issue.
Act § 205(g) calls for a remand to take added evidence on a showing
that "there is new evidence which is material and that there is good
cause for the failure to incorporate such evidence into the record at a
prior proceeding." Here the "good cause" requirement is satisfied by an
affidavit of Blackburn's counsel, which reflects the prior unavailability
of the additional evidence was attributable to forces beyond his
control. As for materiality, the prevailing standard is whether it is
"reasonably possible" the new evidence would have affected the prior
determination. Czubala v. Heckles 574 F. Supp. 890, 901 (N.D.Ind. 1983).
That test calls for more extended analysis of the record, but the
recapitulation that follows plainly shows it has been met.
For one thing, ALJ Stillerman placed some emphasis on Blackburn's not
having been hospitalized frequently for intoxication, adding (R. 10):
Indeed he was not hospitalized at all between July
1978 and September 1981.
Relatedly the ALJ also noted most of the evidence of Blackburn's
alcohol-related impairment significantly postdated June 30, 1978. Both
those points are impacted by the late 1978 and early 1980 Ravenswood
records, which (1) reflect Blackburn's hospitalization between 1978 and
1981 and (2) refer to a long history of alcohol abuse (Ex. C 34, 42,
44). That new evidence thus serves to establish a link between the
1981-83 medical evidence and the period before June 30, 1979. Because
alcoholism is not a disease that arises suddenly, and in light of the
ALJ's express statement as to Blackburn's hospitalization record, there
is at least a "reasonable possibility" the ALJ would have evaluated the
evidence before him differently had he had the opportunity to review the
As the preceding discussion suggests, Blackburn's first argument also
brings his second directly into play. Gallimore v. Harris,
511 F. Supp. 782, 784 (N.D.Ill. 1981) confirms that linkage:
[M]edical evidence of a subsequent condition of
health, reasonably proximate to the preceding time,
may be used to establish the existence of this
condition at a preceding time.
But of course a factfinder must have some predicate for viewing medical
evidence as probative of a claimant's condition at some prior date. Here
the ALJ's decision does not make at all clear whether he found no such
predicate or whether he simply overlooked the question. While that alone
might arguably warrant remand, certainly the remand to consider new
evidence will allow the ALJ to look again at the later
medical evidence in light of both the newly proffered evidence and the
record as a whole.
Before moving to Blackburn's third contention supporting remand, this
Court notes one further evidentiary matter. ALJ Stillerman's decision
makes no reference to the Hearing testimony of Blackburn's wife that
Blackburn has consumed at least 12-18 cans of beer daily for many years,
one result of which has been a high absentee rate at his various jobs.
That testimony, of course, gives credence to Blackburn's claim of
disability. While the ALJ may have had reasons for discounting that clear
evidence in reaching his contrary conclusion, it is important that he
articulate them. Zblewski v. Schweiker, 732 F.2d 75, 79 (7th Cir. 1984);
but see Stephens v. Heckler, 766 F.2d 284, 287-88 (7th Cir. 1985), and
this Court's discussion of Stephens in Hennessy v. Heckles No. 84 C
10058, slip op. at 11 n. 2, 12 n. 4 (N.D.Ill. June 27, 1985).*fn7 Again
the remand to consider new evidence provides a suitable opportunity in
Blackburn's third contention for remand must be evaluated in light of
last week's decision by our Court of Appeals in Johnson v. Heckler,
769 F.2d 1202 (7th Cir. 1985). Johnson affirmed Judge Bua's holding (
593 F. Supp. 375 (N.D.Ill. 1984)) that Secretary's reliance on the
severity requirement — step 2 of the sequential analysis prescribed
by Section 1520 and described in Garfield v. Schweiker, 732 F.2d 605, 607
n. 2 (7th Cir. 1984) — was inconsistent with the terms of the Act
itself. Under the Act, once the claimant bears the prima facie burden of
demonstrating "an impairment which prevents him from performing his
previous work," (Johnson, at 1210, quoting Whitney v. Schweiker,
695 F.2d 784, 786 (7th Cir. 1982)):
The burden then shifts to the Secretary to show that
claimant remains capable of performing other work in
view of the vocational factors of age, education, and
work experience: "[o]nce an impairment of sufficient
severity is demonstrated . . . which precludes the
type of work previously engaged in the burden of going
forward shifts to the Secretary."
Johnson concluded Secretary's application of the severity requirement
— her reference exclusively to medical evidence (see SSR 82-56) and
particularly her reliance on a list of illustrative impairments deemed to
be per se nonsevere (see SSR 82-55) — failed to respect that
allocation of the burden of going forward.
True enough, ALJ Stillerman's decision does not reflect the particular
shortcoming most comprehensively addressed in Johnson — reliance on
SSR 82-55. But it is seriously questionable whether the ALJ's decision
comports with the broader teaching of Johnson as to the allocation of
burdens. At one point the ALJ stated (R. 8) (emphasis added):
Applying the sequential disability evaluation
established by the Regulations, the Administrative Law
Judge notes that the claimant has not engaged in
substantial gainful activity since 1978. Therefore, it
is necessary to evaluate the severity of the
claimant's medical problems and the extent to which
those problems have limited his ability to perform his
past or other work.
Then later the ALJ expressly found (R. 11):
The claimant did not have any impairment or
combination of impairments severe enough to
significantly limit his ability to perform basic work
Those passages create doubt whether the discussion of Blackburn's medical
condition throughout the ALJ's decision was focused on the question
whether the claimant has met his burden of showing an impairment severe
enough to prevent his return to his past work (a permissible inquiry),
instead on the question posed — improperly — at step 2 of the
Any finding on the first of those questions remains within the ALJ's
purview. But post-Johnson, a finding on the second is not, at least
without reference to "vocational factors of age, education, and work
experience and residual functional capacity." 593 F. Supp. at 379.
Consequently a remand to Secretary is necessary for clarification of
precisely what question the ALJ set out to decide, and perhaps for
reconsideration in light of Johnson. In the latter respect, the aggregate
effect of all Blackburn's impairments (and not just that of alcoholism)
must also be considered. Johnson, at 1212-1215.
This Court is without subject matter jurisdiction to review Secretary's
refusal to reopen the 1979 decision and her concomitant application of
administrative res judicata. However, Secretary's decision that Blackburn
did not become disabled prior to June 30, 1979 is vacated and remanded
for reconsideration in light of this opinion. In terms of the motions
generating this opinion:
1. Blackburn's motion for remand is granted in part
and denied in part.
2. Secretary's motion for summary judgment is also
granted in part and denied in part.