United States District Court, N.D. Illinois, Eastern Division
CYNTHIA POTOCKI O/B/O ROBERT S. POTOCKI, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
MEMORANDUM OPINION AND ORDER 
I. SCHENKIER, UNITED STATES MAGISTRATE JUDGE.
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.
Potocki filed two applications for Child's Insurance
Benefits on behalf of her brother, Mr. Potocki, on
January 31, 2013, alleging disability beginning on July 15,
1968 (R. 270-75). 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).
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).
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). 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). He experienced
seizures and was hospitalized although the record is not
clear when this occurred (R. 325).
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). 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,
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).
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).
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
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).
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.
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).
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).
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). ...