United States District Court, E.D. Wisconsin
KEITH A. ROBERTS, Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
William C. Griesbach, Chief Judge United States District
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 ...