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United States ex rel McCandliss v. Sekendur

September 12, 2006

UNITED STATES OF AMERICA, EX. REL. GLENN A. MCCANDLISS, PLAINTIFF,
v.
BATUR C. SEKENDUR AND ORAL SEKENDUR DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman, Chief Judge

MEMORANDUM OPINION AND ORDER REGARDING

Parties' Motions for Summary Judgment

Relator Glen McCandliss ("McCandliss") filed a qui tam lawsuit on behalf of the United States government against Batur and Oral Sekendur under the False Claims Act ("FCA"), 31 U.S.C. § 3729, alleging that Batur Sekendur ("Batur") filed false claims for disability benefits with the Social Security Administration ("SSA") and Oral Sekendur ("Oral") conspired with him. Before this court is McCandliss's and Batur's cross-motions for summary judgment.*fn1

(Dkt. Nos. 98 & 134.) For the reasons stated below, the court denies both motions.

BACKGROUND

A. Application for Social Security Benefits

On February 20, 1992, Batur filed what appears to be his second application for disability benefits with the SSA ("1992 SSA Application"), asserting disability since May 7, 1991 based on symptoms of "chronic neck sprain, fibromyositis, depression, migraine, headaches, allergies, chronic fatigue."*fn2 (Pl. Ex. 1 at 1.) In the 1992 SSA Application, Batur claimed that he had practiced dentistry before the onset of his disability "until [his] condition worsened" and he "could not perform any work in [his] office." (Id. at 1.) Batur stated in the 1992 SSA Application that his symptoms were now "just about constant" and he also complained of memory loss, loss of concentration, and an inability to make decisions. (Id. at 1, 6.) Batur signed and dated the 1992 SSA Application under language in the form stating "Knowing that anyone making a false statement or representation of a material fact for use in determining a right to payment under the Social Security Act commits a crime punishable under Federal law, I certify that the above statements are true." (Id. at 6.)

In the section of the 1992 SSA Application regarding treatment and medical records, Batur set out a long medical history of treatment. Batur identified by name two doctors that he had seen for treatment, Dr. Dietrich K. Klinghardt and Dr. Michael D. Yablouski, and stated the list of other doctors and reports could be obtained from Dr. Yablouski but were "too many to list." (Pl. Ex. 1 at 2.) Batur also attached business cards for an allergist and physical therapist. (Id. at 3.) Batur's treatments included trigger point injections for pain, intravenous treatments of Vitamin C, sensitivity testing for allergies, anti-depressants, anti-inflammatory medications, physical therapy, and referrals to a neurologist, orthopedic surgeon, psychiatrist, and allergist. (Id. at 2.) .

There is no evidence in the record suggesting that the SSA denied Batur's 1992 SSA Application, however, the court assumes the claim was denied because on August 2, 1992, Batur submitted to the SSA a Reconsideration Disability Report ("1992 Reconsideration Report"). (Pl. Ex. 2.) In the 1992 Reconsideration Report, Batur asserted that his symptoms had worsened, claiming that the pain in his neck and his headaches were "almost constant" and required "constant medication" and that his fatigue and depression had become severe. (Id. at 1.) As a result, Batur stated that he had "trouble doing almost anything." (Id. at 1.) With regard to the effect on his daily activities, Batur explained in the 1992 Reconsideration Report that he does less driving, can no longer study, reads very little, and stopped doing all work around the house. (Id. at 3.) Batur certified that the statements in the 1992 Reconsideration Report were true with his signature. (Id. at 4.)

Batur next filed a form entitled "Claimant's Statement When Request for Hearing is Filed and the Issue is Disability," ("1993 Statement"), which he signed and dated "February 29, 1993," although the court notes that "February 29, 1993" does not exist. (Pl. Ex. 3). In the 1993 Statement, Batur noted that the pain and frequency of the migraines had increased and required constant medication. (Id. at 1.) Batur listed for his prescribed medications as 30 mg of Vicoden, 700 mg of Soma, 20 mg of Flexeril, 60 mg of Seldane, 20 mg of Prozac, in addition to Chinese pain medications. (Id. at 2.) In addition, Batur explained that the headaches and pain are unpredictable "which makes it very hard to do anything with regularity." (Id. at 1.) Batur certified to the truth of the 1993 Statement with his signature and date. (Id. at 2.)

Although there again is no denial of Batur's claim for disability in the record, the court infers that Batur's claim was denied based on a Batur's submission of a form on March 8, 1993 requesting a hearing before an Administrative Law Judge ("ALJ"), ("1993 Request"). (Pl. Ex. 4.) In the 1993 Request, Batur stated that he disagreed with the determination made on his claim because "The conclusion that my pain and depression is occasional and [sic] controlled by medication is grossly inaccurate. If medication was effective my condition would not be getting progressively worse." (Id. at 1.)

After a hearing held on May 19, 1994, an ALJ granted Batur's claim for disability in a written decision on October 26, 1994. (Pl. Ex. 5.) Batur and his brother Oral both testified at the hearing. The ALJ summarized Oral's testimony in one sentence: "[Batur's] brother testified at the hearing that the claimant's mental and physical condition has greatly diminished because of unrelenting pain." (Id. at 2.) The ALJ found Batur's impairments of somatoform disorder, cervical sprain syndrome, migraine headaches, chronic fatigue, and neck and muscle pain to be severe. (Id. at 3). The ALJ further found that Batur's impairments met the listed impairment for somatoform disorders, see 20 C.F.R. Pt. 404, App. 1 to Sbpt. P § 12.07 (defining somatoform disorders as "Physical symptoms for which there are no demonstrable organic findings or known physiological mechanisms."). (Id.) The ALJ determined that Batur had been disabled under the Social Security Act since May 7, 1991 and awarded Batur disability benefits. (Id.)

B. Federal Aviation Administration ("FAA") Certificates and Illinois Dental License

During the same time period of the alleged onset of Batur's disability and his submissions to the SSA to obtain disability benefits, Batur applied to the FAA for his First Class Medical Certification for his Student Pilot Certificate on October 17, 1991 ("1991 FAA Certificate") and later his Third Class Medical Certification on December 27, 1993 ("1993 FAA Certificate") by filling out FAA Form 8500-9. (Pl. Exs. 7 & 8.) Batur with his signature on both the 1991 and the 1993 FAA Certificates certified that "all statements and answers provided by me on this application are complete and true to the best of my knowledge" under penalty of 18 U.S.C. ยงยง 1001; 3571. (Pl. Exs. 7 &8.) In both FAA Certificates, Batur stated that he did not "ever" have or "have now" any of the listed impairments or conditions on the form, including frequent or severe headaches, hay fever or allergy, mental disorders of any ...


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