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Potocki v. Berryhill

United States District Court, N.D. Illinois, Eastern Division

September 11, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.



         Plaintiff Cynthia Potocki ("Ms. Potocki"), on behalf of Robert S. Potocki ("Mr. Potocki"), seeks reversal or remand of the decision of the Acting Commissioner of Social Security ("Commissioner") denying Mr. Potocki's claim for Disability Benefits Insurance ("DIB") (doc. #13: PL's Br. in Supp. of Reversing or Remanding the Decision of the Comnvr). The Commissioner has filed a motion for summary judgment and memorandum in support asking the Court to affirm its decision (doc. # 15: Commr's Mot. for Summ. J.; doc. # 16: Def's Mem. in Supp. of Mot. for Summ. J.). For the reasons that follow, we remand the case on the basis that the Appeals Council erred by not considering the new and material evidence of Mr. Potocki's Naval Reserve records.


         Ms. Potocki filed two applications for Child's Insurance Benefits[3] on behalf of her brother, Mr. Potocki, on January 31, 2013, alleging disability beginning on July 15, 1968 (R. 270-75).[4] The Child's Insurance Benefits claims were denied initially on June 26, 2013, and upon reconsideration on April 25, 2014 (R. 140-47, 156-61). Mr, Potocki then received a hearing, appearing via telephone, before an Administrative Law Judge ("ALJ") on October 28, 2015 (R. 28-74). On January 25, 2016, the ALJ issued an opinion finding that Mr. Potocki was not disabled prior to attaining the age of 22 (R. 10, 13). The Appeals Council denied the request for review, making the ALJ's determination the final decision of the Commissioner (R. 1-6). See 20 C.F.R. § 404.981; Shauger v. Astrue, 675 F.3d 690, 695 (7th Cir. 2012).


         Mr. Potocki was born on June 17, 1950 (R. 75). To qualify for Child's Insurance Benefits, Mr. Potocki needed to establish a disability on or before the age of 22, which was June 16, 1972 (R. 32, see 20 C.F.R. § 404.350(a)(5)). He graduated from high school (R. 55-56, 299) and attended one semester of college (R 424). Thereafter, on January 14, 1970, Mr. Potocki enlisted in the Naval Reserve (R. 446). Mr. Potocki graduated from boot camp and was then on reserve duty, reporting once a week as a seaman apprentice for almost a year (R. 52). Mr. Potocki was honorably discharged from the Naval Reserve on November 19, 1970, "by reason of being not physically qualified for retention in the Naval Reserve: (schizophrenic reaction, chronic, undifferentiated)" (R. 325, 454). After he was discharged, the only job Mr. Potocki ever held was at his father's furniture store where he was a helper and delivered furniture until 1976 (R. 55, 60-61, 299). He has not worked since that time (R. 299).

         On April 3, 2013 and May 29, 2013, Ms. Potocki submitted Third Party Function Reports addressing how Mr. Potocki's illnesses, injuries or conditions limit his activities (R. 316-26, 347-57). On May 30, 2013, Mr. Potocki also completed a Function Report addressing how his conditions limit his activities (R. 337-46).[5] The Reports described Mr. Potocki as a recluse who lived under the shelter of his parents since before he turned 22 years of age (R. 45, 319-322, 325, 343, 350-351). He is fearful of doctors and leaving the house (R. 45, 325, 350). Ms. Potocki cares for him long distance (she resides in California) by arranging for Meals on Wheels and other caretakers, and holds a power of attorney for him (R. 316-26, 347-57). Mr. Potocki was diagnosed with schizophrenia when he was 17 or 18 years old (R. 325, 338, 354). At that time, Dr. Marvin Ziporyn and a doctor at Ridgeway Hospital placed Mr. Potocki on medication (R. 325).[6] He experienced seizures and was hospitalized although the record is not clear when this occurred (R. 325).


         The ALJ held a hearing on October 28, 2015. The administrative record does not contain medical reports other than those from Mr. Potocki's time in the Naval Reserves, which were obtained only after the ALJ issued his opinion. However, at his hearing, Mr. Potocki testified that prior to his time in the Navy, he was under the psychiatric care of four or five doctors including: Dr. Phillips, Dr. Rogers, Dr. McLaughlin, and Dr. Marvin Ziporyn (R. 55).[7] While the record is devoid of any medical documents from these doctors, the record contains several cancelled checks payable to Robert L. Phillips, Ph.D. and Dr. Michael Rogers from 1967 to January 1970 (R. 280-83, 404).

         Mr. Potocki was in the Naval Reserves and graduated from boot camp at Great Lakes (R. 51-52). He then attended reserve duty once a week for about a year at the Armory as a seaman apprentice (R. 52). During this time, Mr. Potocki reported experiencing "profound memory loss" and being "handicapped" and not functional (R. 52-53). He stated he was "walking around in a daze" and "couldn't remember anything" (R. 53). Mr. Potocki testified that people noticed he had problems, that he was "unreachable, " "want to battle" him, said things like "there's no use telling you nothing or to try to teach you anything because you're going to forget it anyway, " and "you better get this guy out of here before he gets hurt" (R. 63).

         Mr. Potocki's father took him back to Great Lakes to the psychiatric ward where he was interviewed by a psychiatrist (R, 52, 54). At the time of the ALJ hearing, Mr. Potocki did not have a copy of the psychiatric report (R. 54). The ALJ referred to the report as "key" (R. 54). Plaintiff was able to obtain a copy of it after the ALJ wrote his opinion and submitted it as new and material evidence to the Appeals Council on March 4, 2016 (R. 7-9, 422-479). Mr. Potocki was honorably discharged from the Navy when he was 19 years old in 1970 (R. 51, 55).

         Mr. Potocki worked for his father at his furniture store for about five or seven years, until 1976 or 1977 performing menial tasks such as washing windows, wrapping packages, loading the furniture on the truck, helping the driver and delivering furniture but "nothing mental" (R. 60-61). If his father was not the boss, Mr. Potocki would not have been able to work for anybody

         (R. 60). Mr. Potocki testified that he "couldn't remember nothing, " he could not think logically and he was "always in a daze" (R. 60). The truck driver told Mr. Potocki what to do because he knew something had happened to him and he was a nice guy (R. 61). His co-workers told Mr. Potocki that he was lucky he had his father, because if it wasn't for his father, nobody else would hire him (R. 65). His co-workers always helped him and spoon fed him how to perform tasks over and over again (R. 65). Mr. Potocki testified that he was "weird" in the way that he talked; people said to him that "you're on Mars" and that "you live in your own private world" (R. 65). Mr. Potocki stopped working at the furniture store because his mental ability to function was getting worse and he could not function (even in a limited way) anymore (R. 61).

         In November 2015, three of Mr. Potocki's first cousins filed unsworn statements describing their recollections of Mr. Potocki prior to the age of 22, Mr. Thomas Korzenecki wrote that it was commonly understood in the family that Mr. Potocki was depressed, withdrawn, non-social and in general, "not normal" (R. 400). It was also common knowledge that Mr. Potocki's father gave him "make work" in order to get Mr. Potocki out of the house and keep an eye on him during the day because he would not have been able to work for an employer in the normal competitive job market (R. 400).

         Ronald Koch recalled that Mr. Potocki was always under close supervision of his family because he demonstrated odd behaviors; he acted in a paranoid way, thinking that someone was always watching him, listening in on his conversations, or spying on him (R. 421). He would say things like, "[d]on't talk so loud because 'they' might be listening" (R. 421). He even would cover the walls in his room with "tin foil" so "they" would not be able to listen (R.421). Mr. Potocki worked at his father's furniture store for a while but it "was not considered a serious job;" rather, it was a way to get Mr. Potocki out of the house in a closely supervised setting (R. 421). Mr, Koch observed that Mr. Potocki did not trust people outside his extended family and this lack of trust extended to medical personnel (R. 421).

         Mark Lindhurst wrote that Mr, Potocki was obsessed with the imaginative world, did not have very many friends and, after his semester at Northern Illinois University (NIU), "he was not the same person" and no longer got together with the family at holiday reunions (R. 423-24). Mr. Potocki told his cousin stories of NIU being in the "wilderness, surrounded by wolves howling in the night, and that the student body was entirely composed of bullying meat-eaters whose sole purpose in life was to make [Mr. Potocki] see how worthless his life was" (R. 425). He reported meeting similar people in the Navy as he did at NIU (R. 426). In Mr. Potocki's view, people "only hurt you, humiliated you [or] are out to get you" (R. 426). While working for his father, Mr. Potocki would only do the "lifting and moving, and absolutely refused to have any dealings with the customer" (R. 426).

         Mr. Lindhurst went on to describe various incidents that occurred over the years showing Mr. Potocki's instability (R. 427-29). One such incident occurred after Mr. Potocki's dog, Duncan, died (R. 428). The cousins received a call from their aunt asking them to come over to console Mr. Potocki (R. 428). They held a burial service in the back yard (R. 428). A year later, Mr. Potocki dug up the grave, retrieved the remains of the dog and reassembled it on the kitchen table (R. 428). His parents came home "to be greeted by this gruesome vision" and he would not rebury it until Mr. Lindhurst and his brother came over to help convince him it was the right thing to do (R. 428). ...

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