Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pugh v. Bowen

decided: March 20, 1989.

HARVEY PUGH, PLAINTIFF-APPELLANT,
v.
OTIS R. BOWEN, M.D., SECRETARY OF HEALTH AND HUMAN SERVICES, DEFENDANT-APPELLEE



Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 C 922 -- James B. Zagel, Judge.

Manion and Kanne, Circuit Judges and Fairchild, Senior Circuit Judge.

Author: Kanne

KANNE, Circuit Judge

Harvey Pugh filed an action in the district court seeking judicial review of the Secretary's final decision upon his application for disability benefits. The Secretary awarded disability benefits to Pugh. However, Pugh disagrees with the Secretary regarding the disability's date of onset. The district court granted the Secretary's motion for summary judgment and Pugh appeals. We affirm.

I. BACKGROUND

Harvey Pugh worked at the Nalco Chemical Company for approximately eighteen years. His job required him to lift materials which sometimes weighed as much as 100 pounds, operate levers, and shovel and rake materials on the floor, as well as mix chemicals and set scales. In March of 1982, Pugh left his job permanently after suffering a blackout episode at work, apparently caused by emphysema.

On October 27, 1982, Pugh filed his first of three applications for a period of disability and disability insurance benefits pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 416(i), 423. He alleged that he became disabled and unable to work as of March 31, 1982, at age 48, due to "emphysema" and "hypertension." This application was denied at the initial determination level of administrative consideration and was not appealed.

Pugh filed a second application for disability benefits on September 16, 1983. It contained the same allegations as his first application. This application was denied at both the initial and the reconsideration levels of administrative consideration. Pugh subsequently requested a hearing before an Administrative Law Judge. However, the ALJ dismissed the request on September 26, 1985, when Pugh failed to appear at the hearing. This order was not appealed, either to the administrative appeal body or federal court.

This case involves Pugh's third application for a period of disability and disability insurance benefits filed on April 19, 1985. He again alleged that he became disabled and unable to work as of March 31, 1982, because of emphysema and high blood pressure. His claim again was denied at the initial and reconsideration levels of consideration. Subsequently, Pugh requested a hearing before an Administrative Law Judge.

On April 7, 1986, an ALJ conducted a hearing upon Pugh's application which Pugh and his attorney attended. The ALJ heard testimony from Pugh, his friend, Gail Denise Alford, and Richard J. Hamersma, a vocational expert. He also considered additional vocational evidence, as well as medical evidence from treating physicians and nonexamining medical experts. This evidence covered Pugh's physical condition and vocational aptitude from March, 1982, through November, 1985.

After the ALJ conducted the hearing, but prior to issuing a decision, Pugh requested the ALJ to "reopen" his second application and reconsider the Secretary's prior decision. He alleged that the regulations allow for reopening within one year of the initial determination for any reason, 20 C.F.R. § 404.988(a), and within four years of the decision upon a showing of "good cause," 20 C.F.R. §§ 404.988(b). Pugh contended that "new and material evidence" existed to support his assertion that the ALJ should exercise his discretion to reconsider the Secretary's prior decision. 20 C.F.R. § 404.986(a)(1).

The ALJ issued his decision on June 11, 1986. He found that Pugh has not engaged in "substantial gainful activity" since March 31, 1982. He also found that Pugh presently suffers from "severe chronic obstructive pulmonary disease and hypertension." He further found that prior to November 2, 1985, Pugh had the residual functional capacity to perform "light" work activities. The ALJ noted that although Pugh may have experienced some discomfort and periodic pain prior to November of 1985, his condition was not so severe as to preclude the performance of all substantial gainful activity. However, since November 2, 1985, Pugh's disabling impairment has met the Listing of Impairments ("Listing 3.02 of Appendix 1, Subpart P, Regulations No. 4"). He therefore is presumed disabled and entitled to benefits as of that date.

The ALJ also stated in his decision that because he had determined that the disability's onset date was November, 1985, rather than March of 1982, as the second application alleged, it "would not be appropriate" to reopen the prior application. He also stated that reopening the second application was "unwarranted."

On December 2, 1986, Pugh filed an appeal with the Appeals Council. The Appeals Council adopted the ALJ's ruling as the Secretary's final decision.

On February 2, 1987, Pugh filed for review of the Secretary's decision in federal district court. He asserted that the ALJ erroneously refused to reopen the prior application. Furthermore, substantial evidence did not support the ALJ's finding that November 2, 1985, was the onset date of his disability rather than March 31, 1982. Pugh argued that the ALJ improperly relied solely upon Pugh's ability to meet the regulations' Listing of Impairments rather than the totality of the subjective testimony and the medical and vocational evidence.

On September 3, 1987, Judge Zagel found that the district court was without jurisdiction to review the ALJ's decision not to reopen the prior application, citing Califano v. Sanders, 430 U.S. 99, 107-09, 51 L. Ed. 2d 192, 97 S. Ct. 980 (1977), and Watters v. Harris, 656 F.2d 234, 238 (7th Cir. 1980). Pugh v. Bowen, 670 F. Supp. 812, 813 (N.D. Ill. 1987). He also held that the Secretary's decision was supported by substantial ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.