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United States ex rel McCandliss v. Sekendur

February 20, 2007

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 FOLLOWING BENCH TRIAL

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")*fn1 conspired with him. After the completion of the parties' pretrial discovery and the filing of the pretrial order, the court conducted a multi-day bench trial, at which plaintiff McCandliss and defendant Batur Sekendur presented testimony and other evidence. After reviewing that evidence and considering the arguments of counsel, the court grants judgment in favor of McCandliss and against Batur on McCandliss's claim that Batur filed false claims for disability benefits and that Oral conspired with him.

BACKGROUND

In determining the case, the court finds the following facts. The court adopts each of the parties' stipulated facts stated in the Final Pretrial Order. Among those stipulated facts, the parties agree that Batur has claimed impairment from a medical condition since at least 1989. (Pretrial Ord. § K ¶ 1.) Batur has also claimed disability on private policies of insurance and received benefits from those policies. (Id. at ¶ 2.)

A. Batur's Application for Social Security Benefits

On February 20, 1992, Batur filed what appears to be a second "Disability Report" for Title II disability benefits with the SSA ("1992 Disability Report"), asserting disability since May 7, 1991 based on the stated symptoms of "chronic neck sprain, fibromyositis, depression, migraine, headaches, allergies, chronic fatigue."*fn2 (Pl. Ex. 27 at 1; Pretrial Ord. § K ¶ 3.) In the 1992 Disability Report, 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 Disability Report 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 Disability Report under language in the form that stated as follows:

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 Disability Report regarding treatment and medical records, Batur described 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. Batur also stated in the 1992 Disability Report that a list of other doctors and reports could be obtained from Dr. Yablouski but were "too many to list" on the 1992 Disability Report. (Pl. Ex. 27 at 2.) Batur also attached business cards for an allergist and physical therapist. (Id. at 3.) Batur asserted that his 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.)

After Batur's 1992 application for benefits was denied, (Pl. Ex. 28), Batur submitted to the SSA a Reconsideration Disability Report ("1992 Reconsideration Report") on August 2, 1992. (Pl. Ex. 29.) In the 1992 Reconsideration Report, Batur contended that his symptoms had worsened. He claimed that the pain in his neck and his headaches were "almost constant" and required "constant medication." He also asserted 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 with his signature that the statements in the 1992 Reconsideration Report were true. (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."*fn3 (Pl. Ex. 43.) In the 1993 Statement, Batur stated that the pain and frequency of the migraines had increased and required constant medication. (Id. at 1.) Batur listed 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 "certain Chinese Pain Medications." (Id. at 2.) Batur also 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 document in the trial record evidencing the SSA's denial of Batur's claim for disability, the court infers that Batur's claim was denied based on a Batur's submission of a form received by the SSA on March 8, 1993 requesting a hearing before an Administrative Law Judge ("ALJ"), ("1993 Request"). (Pl. Ex. 46.) In the 1993 Request, Batur stated that he disagreed with the determination the SSA had made with regard to his 1992 Reconsideration Request because "[t]he conclusion that my pain and depression is occasional and controlled [sic] by medication is grossly inaccurate. If medication was effective my condition would not be getting progressively worse." (Id. at 1.)

A hearing before ALJ Richard J. Murphy was held on May 19, 1994. Batur and his brother Oral both testified at the hearing. In a written decision dated October 26, 1994, the ALJ granted Batur's claim for disability. (Pl. Ex. 55.) The ALJ's written decision 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.) Batur began receiving SSA Title II benefits starting on December 13, 1994, retroactive to May 7, 1991. Batur elected on August 12, 1999 to continue to receive benefits, and he continues to receive benefits at this time. (Pl. Ex. 87a; Pretrial Ord. § K ¶ 4.)

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

During the same time period in the early 1990s 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 Application") and later his Third Class Medical Certification on December 27, 1993 ("1993 FAA Certificate Application") by filling out with each application the FAA Form 8500-9. (Pl. Exs. 23 & 49.) Batur with his signature on both the 1991 and the 1993 FAA Certificate Applications 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. §§ 1001; 3571. (Pl. Exs. 23 & 49.) In both FAA Certificate Applications, Batur stated that he did not "ever" have and did not "have now" any of the impairments or conditions listed on the form. Among the conditions listed on the form were "Frequent or severe headaches"; "Hay fever or allergy"; "Mental disorders of any sort: depression, anxiety, etc."; "Admission to hospital"; or "Other illness, disability, or surgery." (Pl. Exs. 23 & 49.) Batur also checked the box on the form that he did not currently use any prescription or nonprescription medication. (Pl. Exs. 23 & 49.) In addition, despite stating on his 1993 FAA Certificate Application that he was "retired," (Pl. Ex. 49), Batur admitted at the bench trial that he was not retired at that time but was on disability.

To obtain approval of his FAA Certificate Applications, Batur had to undergo a physical examination in both 1991 and 1993. In 1991, the FAA examiner was Dr. Surendra P. Goel. In 1993, the FAA examiner was Dr. Walter J. Levy. Both doctors found Batur to have no disabling condition based on their respective examinations and review of the medical history supplied by Batur. (Pl. Ex. 118.) At the trial, Dr. Goel testified that he conducted a physical examination of Batur and reviewed the 1991 FAA Certificate Application provided by Batur. The physical exam consisted of examining the head, neck, nose, sinuses, ears, heart, chest and other aspects of the body. Dr. Goel as part of his regular examination procedure would move the neck of the person he was examining to see if there was any stiffness and would test trigger points. In performing this examination on Batur, Dr. Goel found no evidence of disease, all-over body pain, or debilitating headaches or tension.

Dr. Levy, in testifying at the trial about his 1993 physical examination of Batur, stated that there was nothing that he found during his physical examination of Batur that led him to believe that Batur had any conditions that would prevent the issuance of the FAA flight certificate for which Batur had applied. Dr. Levy further testified that certain conditions and medications require either denial of an FAA flight certificate or a referral for further investigation to determine if the conditions or medications could impair an applicant's ability to function safely as a pilot. Dr. Levy testified that if an applicant has migraine headaches or depression, these are conditions requiring referral for further investigation. With regard to medications, Dr. Levy testified that Prozac and the muscle relaxer class of medications would lead Dr. Levy to refer the case for further investigation. Dr. Levy confirmed that had he, Dr. Levy, been aware of any of the conditions that Batur claimed as impairments to the SSA or of certain of the medications that Batur claimed to the SSA that he, Batur, was taking, Dr. Levy would not have authorized issuance of the FAA flight certificate to Batur. Dr. Levy testified at the trial that he found nothing to suggest that Batur suffered from any of the conditions or took any medication Batur had claimed to the SSA. According to Dr. Levy, Batur appeared to be completely healthy. In addition to not disclosing on his 1991 FAA Certificate Application his purported ailments and all the medications he was taking, Batur did not disclose any visits to any physicians when he was asked on the form whether he had visited a health professional in the last three years. On his 1993 FAA Certificate Application, Batur only disclosed his visit to Dr. Goel for his FAA physical in 1991. (Pl. Exs. 23 & 49.)

At the trial, Dr. Mark Richter, an Aviation Medical Examiner and medical doctor, testified to his opinion of Batur's physical and mental impairments based on his review of the medical records from Dr. Goel and Dr. Levy, the FAA Certificate Applications submitted by Batur, and some of the submissions provided by Batur to the SSA. After reviewing these records, Dr. Richter concluded at the trial that Batur could not have suffered from the ailments that he claimed to the SSA to be disabling. Dr. Richter's determination was based upon the lack of physical or mental symptoms presented by Batur at his physical examinations with Dr. Goel and Dr. Levy, the training received by Aviation Medical Examiners such as Dr. Goel and Dr. Levy so that they can discover any viable symptoms or conditions that would require a report to the FAA, Batur's inconsistent set of medical treatments and the subjective nature of all of Batur's symptoms. Specifically with regard to Batur's medical treatment plan, Dr. Richter noted that there would normally be more documentation of the evaluation of the treatments prescribed to Batur and the ...


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