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Roberts v. Berryhill

United States District Court, E.D. Wisconsin

February 13, 2017

KEITH A. ROBERTS, Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          William C. Griesbach, Chief Judge United States District Court

         Pro se Plaintiff Keith Roberts filed this action challenging the decision of the Commissioner of Social Security denying him disability benefits. For the reasons given below, the Commissioner's decision will be affirmed.

         BACKGROUND

         A. Procedural History

         This is a strange case with an even stranger procedural history. On January 6, 1993 Roberts filed an application for supplemental security income (SSI). R. 326. Applications for SSI are also deemed applications for disability insurance benefits (DIB) under the Social Security Act. R. 321. and Eligibility for DIB and SSI are similar in that both require a finding of disability. They differ, however, in that DIB requires that the claimant meet the earnings requirement for insured status under the Social Security Act on the date of the onset of disability in order to qualify. In addition, a person who qualifies for DIB is entitled to benefits regardless of income or assets. To receive SSI, a claimant must be indigent.

         On June 5, 1993, SSA notified Roberts' that his application for SSI was denied because it had determined that his condition was not severe enough to keep him from working. R. 321. At the same time, Roberts was notified that he was not eligible for Social Security DIB apparently because his insured status had expired. He was also told that if he disagreed, he had the right to appeal. R. 321.

         Roberts sought further review of the decision denying his application for SSI, and on May 2, 1994, ALJ Eric Curtis found that Roberts was disabled as of January 6, 1993, and awarded SSI benefits. R. 326-29. ALJ Curtis found that Roberts' coronary artery disease, shortness of breath, back pain, dysthymia, and a personality disorder were severe impairments that prevented him from performing the full range of sedentary work. With a limited RFC and considering his age, education and work experience, ALJ Curtis concluded that Roberts could not perform past relevant work and any other jobs that existed in significant numbers. R. 327. Roberts was thereafter awarded SSI benefits, but he did not appeal the denial of his claim for DIB.

         On March 8, 2002, Roberts filed another application for Social Security DIB, alleging a disability onset date of October 15, 1981. R. 65. Following the denial of his application initially and on reconsideration, Roberts requested a hearing before an administrative law judge (ALJ). R. 37-45. ALJ Ira S. Epstein conducted a hearing on March 23, 2004. R. 401-31. On May 27, 2004, ALJ Epstein found in Roberts' favor. R. 302-06. After reviewing Roberts' earning records, ALJ Epstein concluded he was insured from July 1, 1965 through September 30, 1982, and from July 1, 1983, through June 30, 1985. R. 302. The ALJ noted the medical records and testimony document a long history of PTSD intertwined with depression, an explosive personality disorder, and a mixed personality disorder with antisocial and borderline features. R. 303. Although the ALJ found that Roberts' mental problems were severe prior to 1980, he determined Roberts had not been under a disability until January 27, 1984, but was nevertheless entitled to a period of disability from that date based on the last insured date he had calculated. R. 306.

         On July 9, 2004, Roberts asked the Appeals Council to review ALJ Epstein's favorable decision, claiming that while ALJ Epstein had awarded him benefits based on his March 2002 application, he should have reopened his January 1993 application. Roberts claimed that SSA erred in denying his January 1993 application for DIB because it did not have his earnings correctly posted when it denied his claim on the ground that his insured status had expired. R. 307. Reopening his January 1993 application would entitle Roberts to benefits back to January 1992, because DIB benefits can be paid up to 12 months before the application is filed. 42 U.S.C. § 423(b). R. 307.

         On September 16, 2004, ALJ Epstein issued an amended decision in which he noted that it had recently been brought to his attention that the date he calculated that Roberts was last insured in his earlier decision was incorrect. Updated calculations established that Roberts was last insured on September 30, 1982, some sixteen months before the January 27, 1994 onset date of disability ALJ Epstein had found. This meant that Roberts was not entitled to DIB. “[A]fter careful review of the evidence and the previous testimony of the medical and vocational experts, ” ALJ Epstein determined in his amended decision that “[Roberts'] disability actually commenced on January 27, 1981, a date prior to [Roberts'] date last insured.” R. 347.

         On March 5, 2005, Roberts wrote to the SSA's Appeals Management Center, again claiming that his award of DIB should relate back to his January 1993 application. R. 318-19. Roberts charged that SSA had “obviously miscalculated my Social Security credits and had determined the incorrect onset date as being January 6, 1993 instead of January 1981.” R. 319. Roberts requested that he be awarded DIB “starting back to at least 1975.” R. 318.

         On April 15, 2005, the Appeals Council vacated ALJ Epstein's decision and remanded the case for further proceedings. R. 336-37. The Appeals Council concluded there was “no basis for granting the claimant's request for review of the Administrative Law Judge's decision.” R. 336. At the same time, however, the Appeals Council found that there was good cause to reopen the favorable decision on Roberts' March 2002 application because it contained an error on its face as defined in 20 C.F.R. § 404.989(a)(3). Apparently unaware that ALJ Epstein had already corrected his error and amended his original decision, the Council noted that he had erroneously calculated Roberts' last insured date based on an incorrect date of birth and that in fact, he was not insured as of January 27, 1984, when ALJ Epstein had originally determined his disability commenced. The Council also acknowledged Roberts' claim that in 1993 the SSA had miscalculated his Social Security credits because wages he received for employment at Continental Building Services in 1981 were not reported to his earnings record. The Council concluded that “further investigation is needed to complete the administrative record and properly determine the correct date for which claimant was last insured for Social Security disability benefits.” R. 336-37. It therefore vacated ALJ Epstein's decision and remanded the case so that a determination could be made whether Roberts was under a disability at any time when he met the special earnings requirements of the Social Security Act. R. 337.

         The case then went to ALJ Robert Milton Erickson, who conducted a hearing on July 24, 2006. R. 432-84. Roberts testified at the hearing that he had worked for four to five months until approximately October 1981 for Continental Building Supplies as a supervisor for asphalt maintenance of a parking lot. If true, the additional credited quarters of earnings would have extended Roberts' insured status past September 30, 1982. ALJ Erickson rejected Roberts' testimony, however, because there were no records to support it. Roberts did not receive a W-2 form, nor did he file a tax return in 1981. Both Roberts and his wife were also vague in their testimony as to when he performed such work. R. 22.

         Upon rejecting their testimony, the ALJ confirmed that Roberts' last insured date was September 30, 1982. R. 22. ALJ Erickson also concluded there was no basis for reopening 1993 decision denying his application for DIB because he never appealed the ruling and the time to do so had long expired. R. 22. With Roberts' last insured date long past and no basis for reopening the denial of his 1993 application for DIB, ALJ Erickson concluded that Roberts was not entitled to DIB based on his March 2002 application. The Appeals Council denied Roberts' request for review of the ALJ's decision, making ALJ Erickson's decision the final decision of the Commissioner. R. 10-12.

         Having exhausted his administrative remedies, Roberts filed a complaint in October 2011 in the United States District Court for the Eastern District of Wisconsin, seeking judicial review of the ALJ's decision. Both parties consented to have the case decided by a magistrate judge, and on December 17, 2012, Magistrate Judge William E. Callahan reversed the Commissioner's decision. R. 521-27. Magistrate Judge Callahan affirmed ALJ Erickson's finding that Roberts' date last insured was September 30, 1982, and left undisturbed ALJ Erickson's finding that there were no grounds for reopening the decision denying the 1993 application for DIB. R. 524-25. The court ...


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