Marble v. Astrue
Filing
35
MEMORANDUM Opinion and Order Signed by the Honorable John A. Nordberg on December 9, 2013.(mr, )
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
BRENDA MARBLE,
Plaintiff,
No. 12 C 3035
v.
Judge John A. Nordberg
CAROLYN COLVIN, Acting Commissioner of
Social Security,
Defendant.
MEMORANDUM OPINION AND ORDER
This is an appeal of the denial of social security disability benefits pursuant to 42 U.S.C.
a05(g). Plaintiff Brenda Marble, who is now 51, suffers from (among other things)
hypertension, anemia, depression, anxiety, and chronic post-traumatic stress disorder ("PTSD"),
the latter condition resulting in part from witnessing a murder.
g
Plaintiff initially applied for benefits on July 27 ,2007 . After various procedural delays, a
hearing was held before administrative lawjudge Helen Cropper on May 6,2010. On September
22,2010,the ALJ issued a2Z-page opinion finding that Ms. Marble was not disabled. The ALJ
gave lesser weight to certain doctor's opinions and concluded that plaintifPs experience in
babysitting for her grandchildren in her home showed that she had the physical and mental
abilities to go out and perform this type ofjob in the job market.
Plaintiff appealed the ALJ's decision to the Appeals Council. On November 23,2010,
before the Appeals Council had made any ruling, plaintiff s attorney wrote a letter to the Appeals
Council stating that it had just come to her attention that on May 30, 2010, plaintifPs youngest
son had murdered her eldest son. (Pl. Mem. at 9; R. 371,834.) The letter further stated: 'Not
surprisingly Ms. Marble who alleged depression and post traumatic stress as disabling
impairments is even more depressed now." (R. 371.)
On February 24,2012,the Appeals Council issued a final decision denying plaintiff s
appeal. The decision is 3 pages long, but appears to be a form document with no explanation
other than the following statement:
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In looking at your case, we considered the reasons you disagree with the decision
and additional evidence listed on the enclosed Order of Appeals Council. We
found that this information does not provide a basis for changing the
Administrative Law Judge's decision.
(R. l-2.) The additional evidence referred to was an October 15, 2010 intake evaluation by
Integrative Psyche Services, S.C. and a January 14,20ll Mental Impairment Questionnaire by a
therapist. (R. 823-841.) This evidence documented plaintiff s attempt to get therapy after her
son's murder.
Now before this Court are the parties' motions for summary judgment. Plaintiff s main
argument is that the evidence relating to her mental deterioration resulting from the murder of
one of her sons by her other son was new and material evidence that should have been considered
by the Appeals Council. She also argues that the ALJ's decision (which did not consider this new
evidence) contains a number of specific errors regarding how the evidence was weighed and
evaluated.
In analyzing the first argument, we turn to Farrell v. Astrue,692F.3d767 (7thCir.
o'new
and material" standard regarding evidence
2012). There, the Seventh Circuit analyzedthe
submitted to the Appeals Council after the ALJ decision was already issued. The Appeals
Council in that case had summarily denied the plaintiff s claim using the same conclusory
paragraph we just quoted above. Id. at770. The Seventh Circuit noted that, under 20 C.F.R. $
404.970(b), the Appeals Council must evaluate any evidence that is "new and material." Id. at
TTl.llnder earlier Seventh Circuit precedent, if the Appeal Council finds that evidence is new
and material but then goes on to hold that the new evidence does not change the conclusion
reached by the ALJ, then the plaintiff later on appeal may not seek review of this determination
regarding the new evidence. However, if the Appeals Council finds the evidence is not new and
material, then the plaintiff may challenge this decision in court. Id. ln Farrell, the Seventh
Circuit noted that the conclusory language quoted above was ambiguous regarding which of
these two scenarios applied. Id. The Seventh Circuit concluded that the best interpretation of the
conclusory language was to assume that the Appeals Council had concluded that the evidence
was not new or material - i.e. the second scenario. Accordingly, the Seventh Circuit in Farrell
went on to review whether the proffered new evidence was new and material and found that it
was because it "fills in [an] evidentiary gap" in the ALJ's opinion. 1d
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Based on Farrell, we must determine whether the evidence relating to this tragic
frahicide and its effect on plaintiffis new and material. We conclude it is. The parties do not
point to any specific legal test for assessing whether evidence is new. It undisputed that the
evidence was not reviewed by the ALJ. The Commissioner argues that although these events
(both the murder of the one son and the subsequent imprisonment of the other son) are tragic,
also Calderonv. Astrue,20l3 WL 139698, *2 (S.D. Ind. Jan. ll,20l3) (following
Farrell and concluding that a Migraine Report was new and material justifring a remand).
lSee
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they "do not excuse [plaintiff s] counsel's failure to produce evidence in a timely manner." (Def.
Mem. at 10.) The Commissioner questions why plaintiff s counsel would have been unaware of
the murder and of plaintiff s deteriorating mental condition. Id. at ll.
In her reply brief, plaintiff explains that she did not immediately inform her counsel
because she was grief-sficken. Here is the full explanation:
The plaintiff was living a nightrnare and had enough difficulty getting through the
day. She did not think to call counsel and tell counsel that her youngest son was
incarcerated for killing her eldest son and that there were additional medical
records [that] counsel should request. Defendant doesn't explain why counsel
should have been aware of these events. It was not until the Plaintiff received her
ALJ denial that she spoke with counsel. It was at that time that counsel was
informed about the tragic events and how they had affected the Plaintiff and that
there was a new doctor and new medical evidence. To expect Ms. Marble to think
of calling counsel and explain that her younger son was incarcerated for killing
her eldest son while her mental state was deteriorating is not reasonable.
(Pl. Repl. at l-2.) We agree. We have no reason to question this explanation. There is no
indication in the record to suggest that counsel, once informed, was dilatory in bringing the
evidence to the attention of the Commissioner.
We turn next to materiality. Evidence qualifies as material if there is "a 'reasonable
probability' that the Commissioner would have reached a different conclusion had the evidence
been considered." Perkins v. Chater,l0T F.3d 1290, 1296 (7th Cir. 1997). The new evidence
here meets this standard for two basic reasons. First, based solely on the calamitous and unusual
nature of these events, it is reasonable to assume (absent evidence to the contrary) that a person
already depressed would become more depressed and suffer a deterioration in her mental
condition. (Plaintiff has also alleged she suffers from PTSD after having seen a different murder
several years before.) The Commissioner questions why plaintiff waited several months to see a
therapist. (Def. Mem. at 15.) But we do not find that this fact by itself undermines a finding of
materiality. There is no dispute that this tragic event took place. How a particular person should
react under these circumstances - and whether she would immediately seek relief with a
professional therapist - are not questions which have easy or automatic answers. In sum, we
have no basis now to question the assertion that these events caused plaintiff to become more
depressed.
Second, in her reply brief, plaintiff informed the Court that, in addition to filing this case,
she had separately filed a second application for disability benefits covering the time period after
the ALJ's decision and that, on November 17,2012, the Commissioner issued a "fully favorable
decision" on this second application finding plaintiff disabled as of September 23, 2010 - i.e. the
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day after the ALJ's decision. (Pl. Reply at2.)2 Plaintiff argues that this second determination
proves that if the Commissioner "had in fact considered the new evidence he would have
reversed the ALJ's decision based on that evidence." We find this argument persuasive.
Although we do not have any details before us about the specific reasons why the Commissioner
found plaintiff disabled, it is a reasonable inference that the new evidence tipped the balance
leading the Commissioner to find plaintiff disabled. In sum, we find that the new evidence must
be evaluated by the Commissioner on remand and that it would be unproductive at this point to
further analyze plaintiff s second argument regarding the adequacy of the ALJ's decision, which
did not consider this evidence.
For all the above reasons, we grant plaintifPs motion for summary judgment [Dkt. # 14]
and deny the Commissioner's motion for summary judgment [Dkt. # 28]. This case is remanded
for an evaluation of this new evidence. In any subsequent ruling, the Commissioner should also
provide an explanation for how its ruling in the present case is consistent with its later finding
that plaintiff is disabled.
ENTER:
A.IIORDBERG
ior United States District
DArED:
P-, ,,1*t 1t,0,-rs
'Plaintiffis thus now receiving monthly disability benefits, meaning that this
focuses only on the time period before September 23,2010.
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case now
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