David SEARS, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee

840 F.2d 394
CourtCourt of Appeals for the Seventh Circuit
DecidedJanuary 26, 1988
Docket87-1382
StatusPublished
Cited by79 cases

This text of 840 F.2d 394 (David SEARS, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
David SEARS, Plaintiff-Appellant, v. Otis R. BOWEN, Secretary of Health and Human Services, Defendant-Appellee, 840 F.2d 394 (7th Cir. 1988).

Opinion

COFFEY, Circuit Judge.

David Sears appeals the district court’s order upholding the final determination of the Secretary of Health and Human Services that he is not disabled and denying a remand to the Secretary to consider additional evidence. We reverse the district court's order in part and remand this case to the Secretary.

A. Background

1. Prior Proceedings

This is a difficult case. A review of its procedural background is necessary. David Sears suffers from glaucoma. He applied for benefits claiming to have been disabled as a result of the glaucoma and its effects. After Sears’ application was denied on two separate occasions at the administrative level, he requested and received a hearing before an Administrative Law Judge in September 1984. He was represented at the hearing by a lay advocate. At the close of the hearing, the AU agreed with the advocate’s request to keep the record open in order that an additional report from a Dr. Ridley might be considered when filed.

Dr. Ridley’s report was never filed. Another extension of time was granted, and the AU subsequently wrote to another lay advocate assigned to Sears’ case (a different advocate from the same organization) reminding him that the extension of time had expired and giving him an additional ten days to file the evidence. A copy of the letter was sent to Sears, but Sears’ vision is so poor that he is unable to read even ordinary type.

In April 1985, the AU denied benefits finding that Sears’ glaucoma was a severe impairment, but that he was able to do light work if he was not exposed to bright light and was also free of undue stress. The AU also found Sears was able to perform his past relevant work as a teacher’s aide.

Sears sought review before the Appeals Council. He filed a form statement with the Appeals Council requesting that they attempt to obtain additional medical (psychiatric) evidence from a Dr. Ulrich, who had begun treating him for “nerves” (biweekly since October 1984 and weekly since February 1985) after the hearing before the AU. The statement also informed the Appeals Council that Dr. Ulrich had prescribed an unspecified medicine which Sears ingested two times per day. The Appeals Council sent Sears a letter informing him that he bore the burden of submitting additional reports. A copy of that letter was forwarded to his advocate, but no report from Dr. Ulrich was ever submitted. On September 20, 1985, the Appeals Council denied review, concluding that the AU had neither abused his discretion nor committed an error of law, and that the AU’s conclusions were supported by substantial evidence. A report from Dr. Baliff, an opthamologist, on the status of Sears’ glaucoma that was apparently to *397 have been submitted to the ALJ 1 was then submitted to the Appeals Council. The Council ruled that the information contained in the report had previously been considered and affirmed its prior decision.

At this time Sears obtained counsel rather than a lay advocate; his attorney requested an extension of time from the Appeals Council to appeal its decision to the district court. The request was attached to an affidavit from Sears stating that he had been represented by three different advocates from the same office during the course of the proceedings; he did not understand the difference between an appeal to the Appeals Council and one to a federal court or the timing requirements for appeals, but believed that the advocates were handling his appeal; he thought that he had been granted an extension of time to appeal based both on new evidence to be submitted following additional eye surgery and on unspecified evidence which had been previously submitted; and, because of his visual impairment, he explained that he relied on others (his advocates) to read and interpret the notices he received from the Secretary. When the Appeals Council granted the request for the extension of time to appeal, Sears filed suit in the district court. The court granted summary judgment to the Secretary and further denied Sears’ request for a remand to consider the contents of Dr. Ulrich’s report. This appeal followed.

2. Dr. Ulrich’s Report

Dr. Ulrich filed a psychiatric report dated July 2, 1986, some ten months after the Appeals Council decision of September 20, 1985 which denied review. The report reveals that in addition to glaucoma, Sears suffers from a myriad of serious and chronic psychiatric problems which cast significant doubt on his ability to work. In the report, Dr. Ulrich details Sears’ mental impairments and concludes that Sears is unable to work and is totally disabled as a result of the “severity of his current symptoms and the profundity of their origins.” Dr. Ulrich’s clinical findings state that Sears suffers from a “severe dysthymic disorder,” including low self-esteem, intense emotional conflict, poor concentration, obsessional thought patterns, and marked anxiety combined with “persecuto-ry ideation” and reclusive behavior.

Dr. Ulrich’s report also reviews Sears’ familial, medical, and placement history, the majority of which had not been presented to the AU. In addition to Dr. Ulrich’s opinion that Sears is disabled due to the severity of his current symptoms, the report also contains a wealth of case history information about Sears. For example, it states that Sears lived in a children’s home from ages 3-6, experienced physical and sexual abuse from relatives, was misdiagnosed as “mentally deficient,” and was improperly institutionalized from ages 13-22, during which time he was frequently beaten and kept in isolation for long periods of time. Dr. Ulrich also reports that Sears has a “dull-normal” I.Q. of about 79 and that his reading and math skills are at the third grade level. 2 The report also reflects that Sears was the victim of a near-fatal mugging/stabbing in 1977. Sears’ prognosis is listed as “guarded” due to his severe symptoms, the chronic nature and severity of his psychiatric problems, and the very nature of his developmental deprivations. The report indicates that Sears’ impairment has lasted or is expected to last twelve months. This information was neither presented to the AU nor to the Appeals Council. It is this report which Sears seeks to have the Secretary consider.

B. Discussion

On appeal Sears argues that the district court erred in failing to remand the case to the Secretary for consideration of Dr. Ul-rich’s psychiatric report. Sears also contends that the Secretary’s conclusion that *398 his glaucoma is not disabling is not supported in the record with substantial evidence and that the Secretary denied him a fair hearing.

1. Substantial Evidence

Sears argues that the AU’s conclusion that he is not disabled on the basis of his glaucoma is not supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means “ ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion,’ ” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Bertaud v. Kijakazi
E.D. Wisconsin, 2022
BELVIY v. KIJAKAZI
S.D. Indiana, 2022
GREENWELL v. SAUL
S.D. Indiana, 2019
Bancolita v. Berryhill
312 F. Supp. 3d 737 (E.D. Illinois, 2018)
Bancolita v. Colvin
N.D. Illinois, 2018
Bahler-Kuhle v. Colvin
N.D. Illinois, 2018
Albrecht v. Astrue
793 F. Supp. 2d 473 (D. Massachusetts, 2011)
STALKUP v. Astrue
662 F. Supp. 2d 1122 (S.D. Iowa, 2009)
Henning v. Astrue
578 F. Supp. 2d 996 (N.D. Illinois, 2008)
Bush v. Astrue
571 F. Supp. 2d 866 (N.D. Illinois, 2008)
Roberta Skinner v. Michael J. Astrue, Commissioner
478 F.3d 836 (Seventh Circuit, 2007)
Felver v. Barnhart
243 F. Supp. 2d 895 (N.D. Indiana, 2003)

Cite This Page — Counsel Stack

Bluebook (online)
840 F.2d 394, Counsel Stack Legal Research, https://law.counselstack.com/opinion/david-sears-plaintiff-appellant-v-otis-r-bowen-secretary-of-health-and-ca7-1988.