Lurry v. Bowen

700 F. Supp. 1089, 1987 WL 49440
CourtDistrict Court, N.D. Florida
DecidedJuly 17, 1987
DocketNo. TCA 85-7242-WS
StatusPublished

This text of 700 F. Supp. 1089 (Lurry v. Bowen) is published on Counsel Stack Legal Research, covering District Court, N.D. Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lurry v. Bowen, 700 F. Supp. 1089, 1987 WL 49440 (N.D. Fla. 1987).

Opinion

ORDER AND FINAL JUDGMENT

STAFFORD, Chief Judge.

This cause is before the Court upon the Magistrate’s Report and Recommendation dated June 25,1987. All parties have been furnished copies of the Report and Recommendation and have been afforded an opportunity to file objections pursuant to 28 U.S.C. Section 636(b)(1). Having considered the Report and Recommendation and all objections thereto timely filed by the parties, the Court has determined that the Report and Recommendation should be adopted.

Accordingly, it is

ORDERED:

1. The Magistrate’s Report and Recommendation is adopted and incorporated by reference in this order of the Court.

[1090]*10902. The Secretary’s decision is hereby REVERSED and this case is REMANDED to the Secretary for the limited purpose of supplementing the record with medical reports of Drs. Cook, Adolphson and Ka-proth.

3. The Secretary is directed to award the claimant a period of disability benefits commencing 8 May 1984 and disability insurance benefits pursuant to Section 216(i) and 223 of the Social Security Act, as well as supplemental security income based upon Claimant’s application filed July 3, 1984, pursuant to Section 1602 of the Social Security Act, as amended.

DONE AND ORDERED.

REPORT AND RECOMMENDATION

EVERETT P. ANDERSON, United States Magistrate.

Plaintiff, Earnest Lurry, filed a timely complaint for review of a final decision of the Secretary of Health and Human Services, 42 U.S.C. Section 405(g), denying him' disability benefits. The Secretary filed a Memorandum in Support of the decision, to which the Plaintiff responded. Having studied the memoranda and their cited authorities, together with the extensive record of the proceedings before the Secretary, I recommend REVERSAL of the Secretary’s decision denying benefits and entry of Judgment directing the Defendant Secretary to award a period of disability and disability insurance benefits retroactive to the disability onset date of May 8, 1984.

The dates in this case are critical. They are as follows:

DATE EVENT

8 May 1984 Plaintiff’s alleged disability onset date. Special earning requirements are met.

16 June 1984 Plaintiff undergoes total pan-createctomy followed by diabetes, chronic abdominal discomfort, and no return to regularly sustained employment.

3 July 1984 Plaintiff files application for SSI benefits.

Mid-July 1984 Plaintiff’s insured status terminates.

2 Aug 1984 State agency determines that Plaintiff’s condition is not expected to restrict him from working for a period of twelve continuous months, the minimum required for a “period of disability.”

11 Oct 1984 Motion for Reconsideration of 2 August determination is denied.

16 Oct 1984 Plaintiff files request for hearing before an Administrative Law Judge.

16 Jan 1985 Hearing is conducted before Administrative Law Judge Nelson J. Carp.

12 April 1985 After reviewing the three-month-old medical evidence, AU determines that Plaintiff is not entitled to a period of disability or disability insurance benefits nor to SSI benefits, since continuation of Plaintiff’s acknowledged post-surgery limitations is deemed not probable. The AU never finds Plaintiff “not disabled.”

8 May 1985 Expiration of 12-month period that began with Plaintiff’s disability onset date of 9 May 1984.

1 July 1985 Appeals Council denies request for review and lets AU decision stand as the final decision of the Secretary.

2 Sept 1985 Plaintiff files the present federal action seeking review of the Secretary’s decision. Shortly thereafter, he files another Petition for SSI benefits.

12 Sept 1985 Notice of initial determination denies plaintiff SSI and disability insurance benefits.

26 Dec 1985 On the basis of new medical evidence, The Secretary, through Disability Determination section, finds Plaintiff disabled as of 1 August 1985, “the first day of the first month after the Appeals Council decision refusing review of the AU decision denying benefits.”

In setting the disability onset date at 1 August 1985, the DDS stated:

You have stated you became disabled on May 9, 1984. Your file has been reviewed. Because of recently obtained medical evidence, we have decided that you are disabled. However, it is noted that you were denied benefits by the Appeals Council in July of 1985. We are unable to establish the beginning of your disability prior to the denial decision made by the Appeals Council. Therefore, the beginning of your disability will be established as of August 1, 1985, the first day of the first month [1091]*1091after the Appeals Council decision, (emphasis supplied).

From the foregoing, it is clear that the Secretary’s disability onset date decision was not based upon medical evidence. Rather, it was based upon Social Security Administration policy.

The disability onset date is controlling in this case. If Plaintiff’s disability began before and continued beyond termination of his insured status in July, 1984, then he is entitled to a period of disability and disability insurance benefits. If the disability began thereafter, he is limited to substantially reduced SSI benefits.

The issue before this Court is a narrow one. It is whether “good cause” exists to reopen the prior proceedings. “Good cause” turns on whether Plaintiffs justifiably failed to offer into the record of the January, 1985 administrative proceedings medical evidence that might reasonably have changed the outcome. See 42 U.S.C. Section 405(g); Wright v. Heckler, 734 F.2d 696, 697 (11th Cir.1984) (per curiam); Allen v. Schweiker, 642 F.2d 799, 802 (5th Cir. Unit B 1981) (per curiam); Cherry v. Heckler, 760 F.2d 1186 (11th Cir.1985).

The Plaintiff has met his “good cause” burden. The continuous-disability-probative evidence was not introduced at or immediately following the January, 1985 proceedings because, for the most part, it did not yet exist. The dates of the reports cited in the Secretary’s later disability determination are as follows:

DATES REPORTING DOCTOR

30 Jul 84 — 19 Aug 85 Dr. Adolphson

3 Dec 85 Dr. Cook

5 Aug 85 — 11 Nov 85 Dr. Kaproth

The Eleventh Circuit has held that “good cause” for failing to present evidence earlier may be found where it did not exist at the time of the administrative proceeding. Cherry v. Heckler, supra, 760 F.2d at 1192. Such is precisely the situation here.

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700 F. Supp. 1089, 1987 WL 49440, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lurry-v-bowen-flnd-1987.