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December 9, 2002


The opinion of the court was delivered by: Ian H. Levin, United States Magistrate Judge.


Plaintiff Mark White ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405 (g) for judicial review of the final decision of the Commissioner of the Social Security Administration (the "SSA") denying his application for Disability Insurance Benefits ("DIB") and Social Security Insurance ("SSI") under the Social Security Act (the "Act"). Before the Court are the parties crossmotions for summary judgment in the cause. For the reasons set forth below, the Court remands the cause for further proceedings consistent with this opinion.


On August 28, 1992, Plaintiff filed concurrent applications for DIB*fn1 and SSI alleging that he became disabled, as of December 15, 1991, due to a combination of physical and mental impairments.*fn2 (R. 94-100, 121.) Plaintiffs applications for benefits were initially denied on November 17, 1992 (R. 101-08). Subsequently, on February 5, 1993, Plaintiff's request for reconsideration was also denied. (R. 109-115.) Plaintiff then filed a timely request for an administrative hearing (R. 116-17), and on May 12, 1994, a hearing was held before an Administrative Law Judge ("ALJ"), at which time, the ALJ decided to remand the cause to the state agency for further consideration of Plaintiff's mental impairment(s). (R. 198-200, 455-60.)

On October 12, 1994, the state agency denied Plaintiff's applications (R. 203-05, 208-10) and on October 31, 1994, Plaintiff, again, filed a timely request for an administrative hearing. (R. 211.) On October 31, 1996, a hearing was held before a second ALJ.*fn3 (R. 29-93.) On March 20, 1997, a decision denying Plaintiff's benefits was rendered, not by the second ALJ, but by a third ALJ. (R. 19-24.) Plaintiff then filed a timely request for review of the hearing decision and, on October 30, 1998, the Appeals Council denied Plaintiffs request for review. (R. 9-10, 13-15.)

Subsequently, Plaintiff initiated civil action by filing a Complaint for Judicial Review in the United States District Court for the Northern District of Illinois (pursuant to 42 U.S.C. § 405 (g)) and, on August 17, 1999, a Magistrate Judge issued a court order remanding Plaintiff's case [White v. Apfel, No. 99 C 0523] in accordance with sentence four (4) of 42 U.S.C. § 405 (g) pursuant to the parties' agreed stipulation for remand. (Pl.'s Mem. at 2.) The parties jointly stipulated that the matter be remanded for a new hearing and decision because Plaintiff had not been given an opportunity to appear at a hearing before the third ALJ. (Def.'s Mem. at 2.)

Following the remand order, in a notice of hearing dated April 11, 2000, this same third ALJ notified Plaintiff that she had scheduled a hearing for May 24, 2000 at 8:30 a.m. (R. 533-37.) The written notice advised Plaintiff that his request for hearing could be dismissed if he failed to appear, and advised him to contact the ALJ's office immediately if he could not appear on the scheduled day or at the scheduled time. (Def.'s Mem. at 2; R. 533.) The day before the scheduled hearing, on May 23, 2000, Plaintiff's attorney sent the ALJ a letter advising that Plaintiffs foreman, on the construction job that he held for less than a year, refused to give Plaintiff the morning of May 24, 2000 off to attend the hearing. (Pl.'s Ex. B, May 23, 2000 ltr fr Plaintiff's attorney to the ALJ.) Furthermore, Plaintiff's attorney explained, in the letter, that it was more likely that Plaintiff would be allowed time off during an afternoon rather than a morning to attend a hearing. (Id) The ALJ, however, decided to go forward and refused to reschedule (or continue) the hearing. (R. 551-68.)

Plaintiffs counsel and two independent medical experts, Irving Slott, M.D. (internist) and Benjamin Blackman, M.D. (psychiatrist) appeared at the hearing on May 24, 2000. (R. 551-68.) Plaintiff, however, did not appear at the hearing. With regard to Plaintiff's absence, his attorney explained:

[Plaintiff] is working, he is only seeking a closed period of benefits. Apparently he

had asked his employers to have today or at least this morning off and my understanding is he was told yesterday that they would not give him the time off. And that was communicated to me yesterday afternoon. (R. 551.)

Plaintiff's attorney further indicated that Plaintiff was seeking a closed period of benefits covering December 15, 1991 through December 1, 1999. (R. 552.)

At the hearing, Dr. Slot testified that he found no objective evidence in the record which would indicate that Plaintiff was disabled during the relevant period. (R. 560-61.) Dr. Blackman testified that, in his opinion, Plaintiff met medically determinable mental impairment Listing 12.09B primarily because of his poly-substance dependence that was most closely associated with a depressive disorder. (R. 566.) Furthermore, Plaintiff's attorney advised the ALJ that she was "not going to ask . . . [for] a supplemental hearing but . . . [would] endeavor to . . . get an affidavit from . . . [Plaintiff] and submit that for the record." (R. 566-67.) The ALJ granted Plaintiff's attorney's request to hold open the record until June 27, 2000 so that she could submit a closing memorandum and an affidavit from Plaintiff. (R. 566-67.) On July 7, 2000, however, Plaintiff's attorney faxed the ALJ a letter requesting that the ALJ schedule a supplemental hearing so that Plaintiff would have an opportunity to testify before her.*fn4 (R. 546-48.)

In her decision dated July 26, 2000, the ALJ denied Plaintiff's attorney's request for a supplemental hearing because Plaintiff had not established good cause for not appearing at the scheduled hearing on May 24, 2000. 20 C.F.R. § 404.936; 416.1436. (R. 488.) For instance, the ALJ noted that good cause had not been established because Plaintiff had not notified her regarding his scheduling conflict until the time set for the hearing (i.e., May 23, 2000) even though the notice of the hearing date and time was sent to Plaintiff on April 11, 2000. (R. 488.) Moreover, the ALJ determined that Plaintiff's condition during the closed period of disability was established by other documentary evidence available to her.*fn5 (R. 488.) Furthermore, the ALJ determined that because Plaintiff was requesting a closed period of disability that any testimony from him would only focus on the past. (R. 488.) Ultimately, the ALJ decided that Plaintiff was not disabled during any part of the relevant period (i.e., December 15, 1991 though December 1, 1999). (R. 493.)

On August 9, 2000, Plaintiff filed a timely request for review of the ALJ's decision with the Appeals Council. (R. 478-79,) In comments to the Appeals Council, Plaintiff delineated the procedural errors in his case which warranted a remand. (R. 470-72.) On August 3, 2001, the Appeals Council denied Plaintiff's request for review making the ALJ's decision the final determination of the Commissioner. (R. 463-64.) Following the grant of extension of time to file, Plaintiff, again, initiated civil action by filing a second ...

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