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Tony J. Boone v. Michael J. Astrue

February 22, 2011

TONY J. BOONE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Proud, Magistrate Judge:

MEMORANDUM and ORDER

In accordance with 42 U.S.C. § 405(g), plaintiff Tony J. Boone is before the Court, represented by counsel, seeking review of the final decision of the Commissioner of Social Security denying him Disability Insurance Benefits (DIB).*fn1

Procedural History

This case has a somewhat complicated procedural history.

Plaintiff first applied for DIB on July 29, 1999, alleging disability beginning on April 17, 1998. (Tr. 98). The application was denied initially and on reconsideration. After holding a hearing, ALJ James M. Mitchell denied the application for benefits in a decision dated March 28, 2001. (Tr. 54-61). At that time, Mr. Boone was represented by attorney Bertram Potter. Mr. Potter filed a late request for review based on the fact that neither he nor plaintiff received the March 28, 2001, decision until January of 2002. Plaintiff had moved from California to Texas in the interim. (Tr. 49). Mr. Potter withdrew from representing plaintiff on May 9, 2005,and plaintiff designated his present attorneys as counsel of record shortly thereafter. (Tr. 48 -48A). Present counsel requested Appeals Council review of the 2001 decision in January, 2006. (Tr. 201-203). By that time, as indicated in counsel's letter, plaintiff had moved to 4106 South Park Drive, Belleville Illinois, 62226. The Appeals Council denied the request for review on the merits, i.e., not because it was untimely, on April 21, 2006, and the 2001 decision of the ALJ became the final agency decision on the 1999 application. (Tr. 38-40). The Notice of Appeals Council Action was mailed to plaintiff at his Belleville address, and to plaintiff's former counsel, but not to the attorneys who were then representing him. Plaintiff did not file a timely complaint seeking judicial review of that decision.

Mr. Boone filed a second application for DIB on April 16, 2004. He was last insured for DIB as of December 31, 2003. (Tr. 1009). Again, he alleged disability as of April 17, 1998. (Tr. 16, 104). The application was denied initially and on reconsideration. After holding a hearing, ALJ Thomas C. Muldoon denied the application for benefits in a decision dated April 11, 2007. (Tr. 16-30). On May 30, 2007, plaintiff's counsel requested Appeals Council review. In his letter, counsel requested that the review of the April, 2007, decision be consolidated with any other appeals pending for Mr. Boone. According to the Court Transcript Index, this letter was located at Tr. 11, but page 11, among other pages, is "not available for inclusion." See, Index, p. 1 & 3.

The Appeals Council denied review in a letter dated July 27, 2007. (Tr. 8-10). The notice also denied the request to consolidate the request for review of the 2001 decision with the request for review of the 2007 decision because the Appeals Council had previously denied review of the 2001 decision on April 21, 2006. (Tr. 8). Once again, this correspondence was mis-addressed. This time, the agency attempted to mail the notice to the correct attorney, Dennis Fox, but the address consisted only of a suite number without a street name or number. See, Tr. 10. However, the notice was directed to plaintiff's correct address on South Park in Belleville. (Tr. 8).

Through counsel, plaintiff filed a complaint seeking review in this Court on December 19, 2007. That case was assigned Case Number 07-878-CJP. Without raising any issue as to timeliness, the Commissioner filed an Agreed Motion to Remand. (Doc. 24). That motion was granted and the case was remanded pursuant to sentence four of 42 U.S.C. §405(g). (Doc. 26). Thereafter, the Appeals Council vacated the ALJ's decision of April 11, 2007, and remanded the case to the ALJ for further proceedings. The Appeals Council's order directed the ALJ to give further consideration to whether plaintiff's impairments meet or equal a listed impairment and to obtain evidence from a medical expert. In addition, if warranted, the ALJ was to give additional consideration to plaintiff's RFC, and to obtain evidence from a vocational expert. (Tr. 993-994).

Updated medical records were submitted, and ALJ Muldoon held a supplemental hearing on November 9, 2009. (Tr. 1146-1157). The ALJ did not obtain evidence from a medical expert. In a decision dated December 3, 2009, the ALJ denied the application. Plaintiff did not request Appeals Council review, and the December 3, 2009, decision became the final agency decision. 20 C.F.R. §404.984(d). Plaintiff thus exhausted his administrative remedies and filed a timely complaint in this Court.

Applicable Legal Standards

To qualify for DIB, a claimant must be disabled within the meaning of the applicable statutes. For these purposes, "disabled" means the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A) and 1382c(a)(3)(A). A "physical or mental impairment" is an impairment resulting from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3) and 1382c(a)(3)(C). "Substantial gainful activity" is work activity that involves doing significant physical or mental activities, and that is done for pay or profit. 20 C.F.R. §§ 404.1572.

Social Security regulations set forth a sequential five-step inquiry to determine whether a claimant is disabled. It must be determined: (1) whether the claimant is presently unemployed;

(2) whether the claimant has an impairment or combination of impairments that is serious; (3) whether the impairments meet or equal one of the listed impairments acknowledged to be conclusively disabling; (4) whether the claimant can perform past relevant work; and (5) whether the claimant is capable of performing any work within the economy, given his or her age, education and work experience. Schroeter v. Sullivan, 977 F.2d 391, 393 (7th Cir. 1992); see also, 20 C.F.R. §§ 404.1520(b-f).

A negative answer at any point in the five-step analytical process, except at the third step, stops the inquiry and leads to a determination that the claimant is not disabled. Garfield v. Schweiker, 732 F.2d 605 (7th Cir. 1984). If a claimant has satisfied steps one and two, he or she will automatically be found disabled if he or she suffers from a listed impairment, determined at step three. If the claimant does not have a listed impairment at step three, and cannot perform his or her past work (step four), the burden shifts to the Secretary at step five to show that the claimant can perform some other job. Rhoderick v. Heckler, 737 F.2d 714, 715 (7th Cir. 1984).

This Court reviews the Commissioner's decision denying plaintiff benefits to ensure that the decision is supported by substantial evidence, and that no mistakes of law were made. "The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive. . . ." 42 U.S.C. ยง 405(g). Thus, this Court must determine not whether Plaintiff is, in fact, disabled, but whether the ALJ's findings were supported by substantial evidence and whether any errors of law were made. See, Books v. Chater, 91 F.3d 972, 977-78 (7th Cir. 1996) (citing Diaz v. Chater, 55 F.3d 300, 306 (7th Cir. 1995)). "Substantial evidence" has been ...


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