Shakari v. Astrue
Filing
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MEMORANDUM Opinion and Order Signed by the Honorable Milton I. Shadur on 11/10/2011:Mailed notice(srn, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TUNU SHAKARI,
)
)
Plaintiff,
)
)
v.
)
)
COMMISSIONER OF SOCIAL SECURITY )
MICHAEL ASTRUE,
)
)
Defendant.
)
No. 11 C 2669
MEMORANDUM OPINION AND ORDER
Tunu Shakari (“Shakari”) seeks judicial review, pursuant to
Social Security Act (“Act”) §405(g),1 of the final decision of
Commissioner of Social Security Michael Astrue (“Commissioner”)
that denied Shakari’s claim for widow’s insurance benefits
(“Benefits”).
Shakari has moved for summary judgment under Fed.
R. Civ. P. (“Rule”) 56.
For the reasons stated here, her motion
is denied, Commissioner’s decision is affirmed and this action is
dismissed with prejudice.
Procedural Background2
Shakari, formerly known as Patricia Evans, filed an
application for Benefits on December 26, 2006 (R. 17).
On
March 28, 2007 her application was initially denied, and it was
1
Further statutory references will take the form
“Section --,” using the Title 42 numbering rather than the Act’s
internal numbering. All 20 C.F.R. provisions are cited “Reg.
§--.”
2
What follows in the next sections of text is drawn from
the administrative record (cited “R.--”).
again denied upon reconsideration (id. 17-18).
After she filed a
timely request for hearing, on May 28, 2009 Shakari appeared
before Administrative Law Judge (“ALJ”) Michael McGuire (id. 1214).
ALJ McGuire’s June 15, 2009 decision concluded that because
Shakari had been convicted of voluntary manslaughter in
connection with the death of the wage earner, her estranged
husband Johnny Evans (“Evans”), she was not entitled to Benefits
despite the fact that she had later been pardoned (id. 14).
Shakari’s request for review of the ALJ’s decision by the
Appeals Council was denied on February 25, 2011 (R. 3-6).
On
April 21, 2011 Shakari filed her Complaint for judicial review by
this Court.
Factual Background
Shakari was born on December 25, 1946 and was thus 62 years
old at the time of the ALJ’s decision (R. 17).
Evans in November 1971 (id. 42).
She had married
Sometime thereafter Shakari
separated from Evans and obtained a restraining order against him
(id. 43).
On September 25, 1975 Evans came to Shakari’s apartment in
violation of the restraining order (R. 43).
He beat Shakari with
his fists, a dog chain and a pistol while their children and
several of his friends watched (id. 44).
He also stated that
Shakari and the children belonged to him and that if he could not
have them then no one else would either (id. 43).
2
Finally Shakari told Evans that she would consider letting
him come back after their next court appearance, whereupon he
gave her the gun and left the apartment (R. 44).
Shakari went
into the hallway outside the apartment to ensure that Evans was
gone, but she discovered that he had not in fact left the
building (id. 45).
Instead he was “coming back up the stairs
full speed” (id.).
Shakari fired a single shot at Evans, killing
him (id.).
Shakari was convicted of voluntary manslaughter and
sentenced to a term of two to six years’ imprisonment (R. 31).
On December 6, 1977, after Shakari had served eight months of her
sentence, then Illinois Governor James Thompson commuted the
sentence to time served and Shakari was released (id.).
Governor
Thompson officially pardoned Shakari on December 22, 1982,
stating that she “is hereby acquitted and...restored to all her
rights of citizenship which may have been forfeited by her
conviction” (id. 29)--but the pardon was silent as to the reason
it was granted (id.).
Standard of Review and Applicable Law
This Court reviews the ALJ’s decision as Commissioner’s
final decision, considering its legal conclusions de novo (Haynes
v. Barnhart, 416 F.3d 621, 626 (7th Cir. 2005)).
Because factual
determinations receive deferential review, courts “are not to
reweigh the evidence or substitute [their] own judgment for that
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of the ALJ” and will affirm Commissioner’s decision “if it is
supported by substantial evidence” (id.).
Substantial evidence
is “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion” (Richardson v. Perales, 402
U.S. 389, 401 (1971) (internal quotations marks omitted)).
As Haynes, 416 F.3d at 626 (internal quotation marks
omitted) teaches:
In rendering a decision, the ALJ must build a logical
bridge from the evidence to his conclusion [but] need
not, however, provide a complete written evaluation of
every piece of testimony and evidence.
Hence “[i]f the Commissioner’s decision lacks adequate discussion
of the issues, it will be remanded” (Villano v. Astrue, 556 F.3d
558, 562 (7th Cir. 2009)).
Reversal is also required if the ALJ
has committed an error of law, regardless of how much evidence
supports his or her determination (Binion on Behalf of Binion v.
Chater, 108 F.3d 780, 782 (7th Cir. 1997)).
To qualify for Benefits, a claimant must be unmarried, at
least 60 years old (or at least 50 years old if she is disabled)
and must have been married to the insured for at least nine
months immediately before his death (Section 402(e), Reg.
§404.335).3
No claimant may be entitled to Benefits if she was
“convicted of a felony or an act in the nature of a felony of
intentionally causing [the insured’s] death” (Reg. §404.305(b)).
3
Other possibilities for qualifying exist under Reg.
§404.335, but they are not relevant here.
4
Effect of Pardon
It is undisputed that Shakari meets the criteria for
Benefits under the Act.
That being so, her eligibility or lack
of eligibility for payment of Benefits turns solely on whether
her conviction of voluntary manslaughter in Evans’ death
precludes her receipt of Benefits even though Governor Thompson
pardoned her.4
Under Illinois law “[a] pardon implies guilt; it
does not obliterate the fact of the commission of the crime and
the conviction thereof” (Bowens v. Quinn, 561 F.3d 671, 674 (7th
Cir. 2009), quoting Talarico v. Dunlap, 177 Ill.2d 185, 190, 685
N.E.2d 325, 327 (1997)).
Indeed, unless a pardon explicitly
authorizes expungement of the conviction (which is still
ultimately a court decision) or is based on the defendant’s
innocence--neither of which is the case here--the recipient still
stands convicted of the crime in question (Bowens, 561 F.3d at
674-75).
It is of course conventional wisdom, and our Court of
Appeals periodically (and properly) reminds us, that judges who
4
In rejecting Shakari’s claim ALJ McGuire relied in part
on Social Security Agency (“SSA”) Program Operations System
Manual (“Manual”) GN 304.075, which provides that a claimant who
is pardoned after a conviction for having killed the wage earner
is entitled to Benefits only if the basis for the pardon is
factual innocence. But the Manual “has no legal force, and it
does not bind the SSA” (Schweiker v. Hansen, 450 U.S. 785, 789
(1981)). To the extent then that the ALJ relied upon the Manual,
his decision would be suspect. But because, as the ensuing
discussion reflects, Commissioner’s rejection is solidly based on
other grounds, any error in that respect is harmless.
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labor in the District Court vineyards--including this Court--do
not make precedent.
Hence District Judges’ opinions carry weight
only to the extent that the reader finds them persuasive on their
own terms.
But that said, it remains worthwhile to quote from
Walden v. City of Chicago, 391 F.Supp.3d 660, 671 (N.D. Ill.
2005), which (also quoting Talarico) held as to a pardon
identical to Shakari’s that, absent a statement as to the
defendant’s innocence, “a general pardon merely releases an
inmate from custody and supervision, and it does not act to erase
or negate an offender’s conviction.”
Illinois law compels this
Court to concur in that analysis.
Conclusion
Unfortunately for Shakari, the battered spouse syndrome had
not been judicially recognized in Illinois at the time of her
1977 conviction (Lenore Walker, Battered Woman (1st ed. 1979)).5
Given the short time span between the beginning of Shakari’s time
in custody and her pardon, it may well be that Governor Thompson
viewed her as innocent in the light of the law’s developing
perspective.
But this Court is not permitted to speculate in the
face of the unequivocal and unambiguous caselaw.
Accordingly,
Shakari’s motion for summary judgment is denied and
5
In fact, the “battered woman syndrome” was first
mentioned in any appellate court opinion in Illinois (federal or
state) in People v. Minnis, 118 Ill.App.3d 345, 355-57, 455
N.E.2d 209, 217-18 (4th Dist. 1983).
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Commissioner’s decision is affirmed.
This Court dismisses this
action with prejudice.
________________________________________
Milton I. Shadur
Senior United States District Judge
Date:
November 10, 2011
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