author: ROVNER, District Judge.

text:
    Emilia PREDKI, Plaintiff, v. Margaret HECKLER, Secretary of Health and Human Services, Defendants.
    No. 83 C 4482.
    United States District Court, N.D. Illinois, E.D.
    Sept. 10, 1985.
   MEMORANDUM OPINION AND ORDER

ROVNER, District Judge.

Plaintiff-appellant, Emilia Predki, has appealed for judicial review of the final decision of the defendant-appellee, Margaret Heckler, Secretary of Health and Human Services (“Secretary”), denying the plaintiff’s application for disability and disability insurance benefits pursuant to Title II, sections 216(i) and 223 of the Social Security Act, 42 U.S.C. §§ 416(i), 423 (1982). The parties have filed cross motions for summary judgment.

For the reasons set forth below, this Court reverses the decision of the Secretary and remands the case for further fact findings.

I. History of Proceedings

On November 3, 1981, the plaintiff applied to the Social Security Administration (“SSA”) for a period of disability and for disability insurance benefits. Plaintiff claims that she suffers from lupus syndrome, ventricular tachycardia, and Barlow’s Syndrome, and that she lives under the threat of severe ventricular arhythmias and the possibility of sudden death. The plaintiff’s application was denied initially on March 9, 1982 (R. 65), and again on reconsideration on April 28, 1982. A hearing was conducted on January 10, 1983 before an administrative law judge (“ALJ”). The AU denied plaintiffs claim on February 22, 1983.

In his decision denying disability benefits, the ALJ determined initially that the claimant is unable to perform her past relevant work. The ALJ also found, however, that the plaintiff was not under a disability and that she maintains the capacity to perform a full range of light work. The plaintiff sought review of the ALJ’s decision by the Social Security Administration Appeals Council. The Appeals Council denied review, which renders the AU’s opinion the final decision of the Secretary. The plaintiff then filed a timely request for federal judicial review pursuant to 42 U.S.C. § 405(g) (1982).

II. Review of the Evidence

The plaintiff, Emilia Predki, was fifty years old at the time of the hearing. She was born in Poland and received a high school education in Africa. The plaintiff came to the United States in 1952 and thereafter learned English by listening. Although she can read and write, the plaintiff testified that she misses a few words and that she has trouble spelling. The plaintiff was employed first in quality control at a television factory and later she worked as a bindery worker. The defendant’s vocational expert characterized these jobs as semi-skilled (R. 9).

Plaintiff claims that she has been disabled since April of 1981 because she suffers from several serious diseases. First, plaintiff claims that she has lupus syndrome, because she suffers pain and swelling in her arms and hands. Systemic lupus erythematosus is an inflammatory connective tissue disorder. The Merck Manual at 1207 (14th ed. 1982). As the medical evidence shows, however, plaintiff does not suffer from systemic lupus erythematosus but rather she suffers only from drug-induced lupus syndrome (R. 104, 112, 133, 134, 137). Next, plaintiff complains that she suffers from Barlow’s syndrome, or mitral prolapse syndrome. Prolapse of the mitral valve is a chronic heart valve disease “now recognized as a common and sometimes serious and progressive lesion.” The Merck Manual at 526 (14th ed. 1982). Plaintiff also suffers from ventricular tachycardia. This disease is defined as “an abnormal rapid beat of the heart, from 150 to 200 beats per minute, associated with minor irregularities of the rhythm.” 3 Schmidt’s Attorney’s Dictionary of Medicine at V-50 (1979). Finally, plaintiff claims that she lives “under the threat of severe ventricular arhythmias and the incidence of sudden death.” Arhythmia is the loss of or variation in the normal rhythm of the heart beat, resulting in, inter alia, fast beats. 3 Schmidt's A ttorney’s Dictionary of Medicine at A-274 (1979).

The medical evidence begins with the records of Memorial Hospital of Elmhurst. The plaintiff was hospitalized on January 16, 1979. She complained of syncope (fainting) preceded by moments of dizziness. An electrocardiogram given to the plaintiff confirmed the presence of ventricular tachycardia. The plaintiff was released on January 23, 1979, put on medication, and advised to avoid excessive activity (R. 130).

The plaintiff was again hospitalized at Memorial Hospital in July of 1979 due to complaints of syncope (R. 126). The treating physician at Memorial Hospital, Dr. J.M. Stoker, M.D., diagnosed the plaintiff as having ventricular tachycardia, documented at a rate of 210, and possibly having Barlow’s Syndrome. Dr. Stoker then advised that the plaintiff be transferred to the Arhythmia Unit of Northwestern University Medical Center for evaluation and therapy by Dr. Martin Grais, M.D., a cardiologist (R. 126-127, 129).

The records at Northwestern Hospital noted that the plaintiff continued to have persistent syncopal episodes while on antiarhythmic therapy. She was suffering from paroxysmal ventricular tachycardia (R. 98). While at Northwestern Hospital, the plaintiff underwent an echocardiographic test which showed that plaintiff also suffered from Barlow’s syndrome (R. 101). In a letter to Dr. Stoker, dated August 9, 1979, Dr. Grais reported that the plaintiff remains asymptomatic and has no augmentation of arhythmia (R. 101). Dr. Grais also noted the possibility of lupus in view of the plaintiff’s intake of Pronestyl. Dr. Grais determined that the plaintiff could be discharged for outpatient follow up. The plaintiff subsequently was discharged but remained on medication, including Pronestyl and Inderal, in order to control her tachycardia (R. 99).

The plaintiff was hospitalized again at Northwestern Hospital on April 5, 1981, complaining of transient joint symptoms in the knees, wrists, and. shoulders (R. 103, 112). Dr. Grais determined that the plaintiff had a reaction to the drug Pronestyl, which caused the plaintiff to develop a lupus-like syndrome (R. 104). This lupus-like syndrome was documented by a positive ANA test. Consequently, she was taken off Pronestyl in April of 1981 (R. 103).

In November of 1981, Dr. Stoker reported that the plaintiff had been free of significant syncope episodes (R. 104). Furthermore, Dr. Stoker noted that the plaintiff had tolerated the omission of the drug Pronestyl but “subsequently has had a general fatigue feeling and has some residual arthritic symptoms although the Lupus status is gradually clearing”. He also noted, however, that plaintiff carries a continual long-term risk of syncope or serious cardiac arhythmia. She is on high doses of Inderal which has a sedative and depressing effect, but the use of adequate medication is extremely important. Dr. Stoker also noted that there is a potential risk that heavy physical or stressful situations would subject plaintiff to serious arhythmias. In his November, 1981 letter, Dr. Stoker concluded that “the only practical employment situation for her would be near her home ... in situations of strictly office or clerical and minimum stress activity” (R. 104).

In December of 1981, the Illinois Bureau of Disability Adjudication Services referred plaintiff to a Dr. Bacalla, M.D. (R. 105). After examining plaintiff, Dr. Bacalla reported that the heart rate was normal and that there were no gross cardiomegaly or murmurs (R. 107). Dr. Bacalla did find sinus bradycardia, which is a slowness of the heart beat due to a disturbance in the right atrium of the heart; 3 Schmidt’s Attorney’s Dictionary of Medicine at B-76 (1979). While he observed some soft tissue swelling and tenderness of the hands, there were no joint deformities noted. Dr. Bacalla did not diagnose arhythmia. Moreover, Dr. Bacalla did not offer any evidence or make any statements regarding the plaintiff’s functional capacity to work.

The administrative record also includes a letter written by Dr. Stoker on January 18, 1983, which the AU did consider in making his determination (R. 135-136). For four years, Dr. Stoker was plaintiff's treating physician. Dr. Stoker reported that the plaintiff is subject to increasing or changing susceptibility to ventricular irritability even though at times in the past her condition has been under control, Dr. Stoker further reported:

At this time, she is manifesting increased ventricular extrasystoles and the history strongly supports an episode of fainting with symptoms compatible with a return of at least short bouts of tachycardia. Mrs. Predki continues on extremely high doses of the beta-blocker medication called ... Inderal, and this continues to have a sedative effect and has a slowing effect on her basic heart rate and a tendency to drop her blood pressure. All of the above side effects must be accepted in the treatment program and contribute to her reduced functional status (R. 135).

Dr. Stoker further advised that the only kind of work situation of which plaintiff is capable would be clerical-type work in her home. The basis of this evaluation is that the plaintiff lives under the threat of severe ventricular arhythmias and the incidence of sudden death (R. 135). The risk of sudden death is enhanced by increased heart irritability “which could be a result of unusual physical activity, increased metabolic changes such as high fever or even the stress of mental aggravation or strain” (R. 135). In other words, in order to prevent and control the risk of these serious illnesses, not only does the plaintiff have to be on high dosages of medication, but her physical environment must be strictly controlled. Finally, Dr. Stoker also stated that the plaintiffs condition “has to do with a possible gradual degeneration of the collagen disease in the heart muscle and valves,” and that with the passage of time, the plaintiff will need regular follow-up examinations and “possibly the use of more and newer suppressive medication” (R. 135).

In addition, the plaintiff testified regarding her symptoms and diseases at the administrative hearing. The plaintiff stated that she was unable to work after April of 1981 (R. 38). She testified that she had pain in her chest and that her arm was swollen. She was unable to walk because her entire body was in pain. She stated that although she could move her arm, if she reached for too long a period of time, she would get dizzy (R. 39). Plaintiff also testified that she suffered fatigue because of her chest pains. In a period of six months, the plaintiff stated that she had fainted twenty times.

With regard to her residual functional capacity, the plaintiff testified that she was told by her doctor not to lift heavy articles or shovel snow and that she was to rest (R. 45). Plaintiff also stated that she can do only some housework for ten to fifteen minutes before she becomes fatigued and must sit or lie down. Furthermore, during the summertime, she can do housework for only five minutes at a time (R. 46). Plaintiff testified that she cannot work at all because she gets tired very fast and gets dizzy soon afterwards (R. 47). Finally, the plaintiff stated that the medication she takes makes her drowsy (R. 48).

III. Establishment of Disability

In order to qualify for a period of disability and for disability insurance benefits, an applicant must:

a. be insured for disability insurance benefits;
b. not have attained the age of 65;
c. have filed an application for disability insurance benefits; and
d. must be under a disability as defined in the Act.

42 U.S.C. § 416(i), 42 U.S.C. § 423 (1982). Plaintiff met the necessary earnings requirements for disability insurance at the time of her application in April of 1981 and continued to meet them at least through December, 1984 (R. 8). Since the plaintiff has fulfilled the requirements listed under a, b, and c, the only issue is whether the plaintiff is disabled.

To be found disabled under the Social Security Act, a claimant must prove the existence of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous twelve month period. 42 U.S.C. § 423(d)(1)(A) (1982). Furthermore, the claimant must prove that because of the impairment, she is unable to engage in any substantial gainful activity. 42 U.S.C. § 423(d)(2)(A); Lovejoy v. Schweiker, No. 80 C 5295, Mem. Op. at 7 (N.D.Ill. June 9, 1983).

The Secretary has issued regulations which provide a five-step sequential evaluation procedure to determine whether a claimant is eligible for disability benefits. 20 C.F.R. § 404.1520 (1985); Krapfl v. Heckler, No. 83 C 7188, slip op. at 3 (N.D.Ill. May 9, 1985), appeal filed, No. 85-1968 (7th Cir. June 21, 1985). The five inquiries of this evaluation are:

1. whether the claimant is currently engaged in substantial gainful employment. If it is found that the claimant is currently working, then he will not be found disabled. If the claimant is not currently working, then the second inquiry is considered.
2. whether the claimant does not suffer from such an impairment. If the claimant does not suffer from such an impairment, the claim is denied. If a severe impairment is present, then the third part is,
3. whether the impairment meets or equals one of the impairments listed in Appendix 1, .20 C.F.R. part 404, subpart P, Appendix 1 (1985). If it does meet or equal one of the impairments, then the claimant will be considered disabled. If it does not, then the fourth inquiry is,
4. whether the claimant’s impairment prevents him from performing his past work. If the claimant is capable of returning to his past relevant work, then the claim is denied. If the claimant is not capable of returning to his past work, then the fifth and final inquiry must be examined.
5. whether the claimant is capable of performing some other type of substantial gainful activity considering his age, education, and prior work experience. If he is not, then the claim is approved.

Krapfl v. Heckler, No. 83 C 7188, slip op. at 3.

In his sequential evaluation of the plaintiff’s claim, the ALJ found that 1) the plaintiff suffered from ventricular tachycardia with Barlow’s Syndrome; 2) the plaintiff’s testimony and medical records indicate that the plaintiff’s arthritic problems are not serious and that the plaintiff’s complaints of weakness, chest pain, tiredness and nervousness are not credible and are not borne out by the necessary medical documentation; 3) the plaintiff is unable to return to her past relevant work; 4) the plaintiff, however, has the residual functional capacity to perform a full range of light work; and 5) considering her residual capacity, age, education, and work experience, the plaintiff is not disabled (R. 12). Therefore, the ALJ found that the plaintiff was not under a disability as defined in the Social Security Act (R. 12).

The final decision of the Secretary is reviewable under 42 U.S.C. § 450(g) (1982). The reviewing court, however, does not decide the case de novo. Krapfl v. Heckler, No. 83 C 7188 slip op. at 2. Rather, the issue before the court is whether the Secretary’s findings of fact are supported by substantial evidence. Whitney v. Schweiker, 695 F.2d 784, 796 (7th Cir.1982); Krapfl v. Heckler, No. 83 C 7188, slip op. at 2. In order to determine if substantial evidence exists to support the AU’s conclusions, the court must examine the record as a whole. Zblewski v. Schweiker, 732 F.2d 75, 78 (7th Cir.1984); Jackson v. Heckler, 592 F.Supp. 1124, 1127 (N.D.Ill.1984), quoting Strunk v. Heckler, 732 F.2d 1357, 1369 (7th Cir.1984). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Garfield v. Schweiker, 732 F.2d 605, 607 (7th Cir.1984). If the court finds an error of law or that the record lacks substantial evidence to support the factual findings, then the court need not uphold the Secretary’s decision. Taylor v. Schweiker, 739 F.2d 1240, 1241 (7th Cir.1984).

Having reviewed the decision of the ÁLJ and the record as a whole, this Court finds that the ALJ’s decision is not supported by substantial evidence.

A. Appendix 1 Listings

Since the plaintiff is not currently working and the ALJ found that she does suffer from a severe physical impairment, the Court's initial inquiry is whether the impairment meets or equals one of the impairments listed in Appendix 1. Appendix 1 of the Secretary’s Regulations provides a Listing of Impairments which are considered severe enough to automatically qualify a person as disabled. 20 C.F.R. part 404, subpart P, app. 1 (1985). The required level of severity for each impairment is also shown. 20 C.F.R. § 404.1525(c) (1985). Furthermore, in each section of the Listing of Impairments, certain specific medical findings are required to establish the existence of each impairment. 20 C.F.R. § 404.1525(c) (1985). Section 404.1520(d) of the Regulations provides that claimants may be found disabled if their impairments are either listed in Appendix 1, or are determined to be medically equivalent to a listed impairment. 20 C.F.R. § 404.1520(d) (1985).

Plaintiff argues that several of her impairments meet or equal impairments listed in Appendix 1. First, plaintiff claims that she suffers from mitral prolapse or Barlow’s syndrome, which is listed at section 4.02(C) of Appendix 1. To satisfy section 4.02(C) of the Listing of Impairments, a claimant must have both congestive heart failure and “persistent mitral type heart involvement.” Plaintiff, however, has denied having congestive heart failure (R. 105), and no medical findings were submitted to support a diagnosis of congestive heart failure.- Thus, plaintiff is not disabled under section 4.02(C) because of her Barlow’s syndrome.

Second, plaintiff complains that she suffers from lupus syndrome and therefore is disabled under section 10.04 of the Listing of Impairments, 20 C.F.R. part 404, subpart P, Appendix 1, Part A (1985). Section 10.04 lists the impairment “disseminated lupus erythematosus,” which is a connective tissue disorder. As the Secretary appropriately noted, however, plaintiff’s physician has described her condition as a “Pronestyl (drug) induced lupus syndrome” or a “Pronestyl lupus-like reaction.” (R. 104, 112, 133, 134, 137). Medical sources distinguish drug-induced lupus from the inflammatory connective tissue disorder systemic (disseminated) lupus erythematosus, which is listed in Appendix 1. The Merck Manual at 1207 (14th ed. 1982). There: fore, although plaintiff had a positive ANA reading in 1980 which establishes a diagnosis of lupus (R. 120), her condition does not meet the Listing of Impairments under Appendix 1 because she has not been diagnosed as having disseminated lupus erythmatosus.

Section 4.05 of Appendix 1 addresses another of plaintiffs impairments: arhythmias. Section 4.05 requires recurrent arhythmias resulting in uncontrolled episodes of cardiac syncope and documented by resting or ambulatory (Holter) electrocardiogram. 20 C.F.R. part 404, sub-part P, Appendix 1, § 4.05 (1985). The evidence contains a great deal of medical opinion that the plaintiff lives under the severe threat of arhythmias (R. 104, 135). But although Dr. Grais notes that plaintiff takes medication to control her arhythmatic condition (R. 103), no formal diagnosis of this disease has been made. Furthermore, no arhythmias were noted on an electrocardiogram conducted by Dr. Bacalla (R. 107). Therefore, plaintiff cannot be disabled pursuant to section 4.05 of the Listing of Impairments.

In sum, none of plaintiff’s physical impairments meets or equals one of the impairments listed in Appendix 1. Thus, she is not automatically disabled under the Regulations and this Court must review the ALJ’s findings in the next steps of the sequential evaluation.

B. Residual Functional Capacity to do Light Work

Since the plaintiff’s impairments do not meet or equal the impairments listed in Appendix 1, according to the fourth step of the sequential evaluation, the next inquiry is whether the claimant’s impairment prevents her from performing her past work. Krapfl v. Heckler, No. 83 C 7188 Mem. Op. at 3. Although he gave no rationale, the ALJ did find that “the claimant is unable to perform her past relevant work as a bindery worker or in quality control” (R. 12). “Once such a determination is made, the burden shifts to the Secretary to prove that there is some other kind of substantial gainful employment available which the claimant would be able to perform,” considering the claimant’s age, education, and prior work experience. Smith v. Heckler, 582 F.Supp. 1529, 1530 (N.D.Ill.1984). The fifth and final inquiry of the sequential evaluation mandates approval of a disability claim if the claimant cannot otherwise be gainfully employed. 20 C.F.R. § 404.1520 (1985).

The ALJ held that while the plaintiff could no longer perform her past relevant work, she could perform a full range of light work (R. 12). The light work definition in the regulations provides that:

Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.

20 C.F.R. § 404.1567(b) (1985).

After finding the plaintiff capable of performing a full range of light work, the ALJ applied the Appendix 2 grids to this case and held that Rule 202.11 dictates a finding that the claimant is not disabled (R. 12); see 20 C.F.R. part 404, subpart P, Appendix 2 (1985). “The Appendix 2 Guidelines indicate in grid form whether a significant number of jobs exist in the national economy for individuals with various impairments of physical capacity, ages, education, and work experience.” Smith v. Schweiker, 735 F.2d 267, 270 (7th Cir.1984). An individual’s characteristics correspond to the factors listed on the grids or charts, and by reading the grid under the appropriate work limitation, the guidelines will direct a finding of disabled or not disabled. Id. at 270. Thus, the reasonableness of a determination of disability based on the grids is only as correct as the accuracy of the underlying criteria, including work capacity.

Based upon the record, however, this Court is compelled to hold that the AU’s finding that the plaintiff has the residual functional capacity to perform light work is not supported by substantial evidence.

Courts have held that where the treating physician states that the plaintiff is disabled as a result of his or her impairments, and no other physician makes any assessment of the plaintiff’s residual functional capacity, then an AU’s determination that plaintiff is capable of light or sedentary work is not supported by substantial evidence and must be reversed. E.g., Kail v. Heckler, 722 F.2d 1496 (9th Cir.1984); Carroll v. Secretary, 705 F.2d 638 (2d Cir.1983); Perez v. Schweiker, 653 F.2d 997 (5th Cir.1981). See also Spencer v. Schweiker, 678 F.2d 42 (5th Cir.1982) (medical opinion on which ALJ relied was ambiguous regarding the plaintiff’s residual functional capacity). In Kail, for example, it appeared that the ALJ had relied primarily on a report by a Dr. Weese, who made a thorough diagnosis of the claimant’s condition but expressed no opinion regarding the claimant’s residual functional capacity. One of the claimant’s treating physicians had rendered an opinion that the claimant was permanently disabled due to his lung condition. Kail, 722 F.2d at 1497. The court held that the ALJ's finding that the claimant was capable of sedentary work was not supported by substantial evidence.

In the instant case, Dr. Stoker, Mrs. Predki’s treating physician for four years, has stated his opinion that, given her medical condition, the plaintiff is permanently disabled for any work situation except perhaps clerical work in her home. Neither Dr. Grais, her treating cardiologist, nor Dr. Bacalla, the consulting physician, gave any opinion at all regarding plaintiffs residual functional capacity or whether she is disabled by her impairments. The ALJ, apparently relying on the diagnoses of Dr. Grais and Dr. Bacalla, found that the plaintiffs arthritic symptoms are not a serious impairment and that her heart condition is well controlled by medication. The ALJ further found, based solely on his own interpretation of the plaintiffs medical history, that she retains the capacity for a full range of light work.

Because the only medical evidence in the record regarding plaintiffs residual functional capacity is found in Dr. Stoker’s letters, this Court holds that the ALJ’s decision is not supported by substantial evidence. As described above, the ALJ proceeded to the fifth and final step of the sequential evaluation, and found Mrs. Predki disabled by applying the light work grid to her age, education and past employment. Application of the grids is useful only where each of the underlying criteria listed in the grid used match up to the plaintiffs characteristics and capacity. Perez, 653 F.2d at 1001. Because the ALJ’s decision that plaintiff is capable of performing the full range of light work is not supported by substantial evidence, the Secretary’s determination that plaintiff is not disabled must be reversed.

Remand for Introduction of New Evidence

The final question for this Court is whether to remand this case to the Secretary for further development of the medical evidence. Under 42 U.S.C. § 405(g),

The court may, on motion of the Secretary made for good cause shown before he files his answer, remand the case to the Secretary for further action by the Secretary, and it may at any time order additional evidence to be taken before the Secretary, but only upon a showing that there is new evidence which is material and there is good cause for failure to incorporate such evidence into the record in a prior proceeding____

Despite these apparent limitations on the court’s remand power, courts frequently remand social security disability cases for additional evidence. See, e.g., Strittmatter v. Schweiker, 729 F.2d 507 (7th Cir.1984); Perez, 653 F.2d at 1002.

In Strittmatter, the AU had ended his inquiry at the third stage; relying solely on one doctor’s statement that the patient could work while sitting down, he found that the claimant was able to perform her past relevant work. The Seventh Circuit held that the AU was required to determine the physical demands of the particular type of sedentary work that the claimant had done and then compare those demands to her present capabilities. Therefore, the court directed the district court to remand the case to the Secretary for additional findings on Mrs. Strittmatter’s capability to do her former work. Id. at 509.

While there are cases which hold that 42 U.S.C. § 405(g) precludes a remand for additional evidence unless there is a showing of new material evidence and a good reason for its earlier omission, Carroll v. Secretary, 705 F.2d 638 (2d Cir.1983); Czubala v. Heckler, 574 F.Supp. 890 (N.D.Ind.1983), the Seventh Circuit recently explained its more liberal interpretation of the statutory remand provision. In Garfield v. Schweiker, 732 F.2d 605 (7th Cir.1984), the Seventh Circuit stated:

The Social Security Act, as amended in 1980, provides for remand of cases in several situations, none of which clearly apply in this case____ However, other courts have held and the legislative history indicates that remand is also proper when the findings of the Secretary are not supported by substantial evidence but do not provide sufficient evidence to support a reversal and a finding that the claimant is disabled. See Abeuf v. Schweiker, 649 F.2d 107, 115-116 (2d Cir. 1981); H.R.Rep. No. 96-100, 96th Cong., 1st Sess. 13 (1979).

Id. at 610 n. 8.

Under the standard set forth in Garfield, a remand of the instant ease is appropriate. There is no evidence in the administrative record to controvert Dr. Stoker’s opinion that the plaintiff is disabled. In Dr. Grais’ April 17,1981 letter to Dr. Stoker, however, he does state that Mrs. Predki’s heart condition is under control with Digoxin and Inderal and that she suffered no significant reactions to an exercise test (R. 103). Similarly, Dr. Bacalla found that plaintiff's chest pain is “unrelated to exertion and relieved with rest” (R. 105). Under these circumstances, additional evidence is necessary to determine the type of work, if any, of which plaintiff is capable, given her heart condition and drug side effects.

Furthermore, on remand the AU should adhere to the Seventh Circuit’s reminder in Strittmatter, supra, that where a claimant has non-exertional impairments as well as an exertional impairment, the AU should determine disability with the aid of the grid, but not limited to strict application of the grids. 729 F.2d at 508-09. The side effects of medication, such as drowsiness, are considered non-exertional impairments. Cowart v. Schweiker, 662 F.2d 731 (11th Cir.1981). Since the grids in Appendix II classify jobs according to their exertional impairments, the AU must determine if plaintiff’s non-exertional impairments significantly narrow the range of work for which plaintiff is qualified. 20 C.F.R. part 404, subpart P, appendix II, § 200.00(e)(1)(2) (1985).

As stated earlier, when the ALJ has reached the fifth stage of the sequential evaluation, the Secretary has the burden of producing evidence to show that the claimant is able to perform alternate substantial gainful work that exists in the national economy. On remand, the Secretary is directed to secure additional evidence regarding plaintiff’s residual functional capacity.

Reversed and remanded.


source: Caselaw Access Project

author: GETZENDANNER, District Judge:

license: Public Domain

text:
    Verdie BAILEY, Administratrix of the estate of George Bailey, Plaintiff, v. STATE OF ILLINOIS, D.A. Cobb, U. Price, E. Franklin, D. Scott, and D. Rosen, Defendants.
    No. 85 C 4114.
    United States District Court, N.D. Illinois, E.D.
    Sept. 11, 1985.

      Michael E. Deutseh, Janine Hoft, People’s Law Office, Chicago, 111., for plaintiff.
    James Anthony Coghlan, Moshe Jacobi-us, Asst. Atty. Gen., State of 111., Chicago, 111., for defendants.
   MEMORANDUM OPINION AND ORDER

GETZENDANNER, District Judge:

In this action under 42 U.S.C. § 1983, plaintiff Verdie Bailey, as administratrix of the estate of her son George Bailey, seeks damages for the deliberate indifference of prison guards D.A. Cobb, E. Franklin, D. Scott, U. Price, and David Rosen in allowing George Bailey, a prisoner incarcerated at Stateville, to be attacked and killed by a fellow inmate. The State of Illinois is joined as a defendant solely for the purpose of awarding attorneys’ fees. The matter is currently before the court on the motion of defendants to dismiss for failure to state a claim. For the reasons set forth herein, the motion is granted in part, and denied in part.

Facts

The events underlying this suit took place in June of 1981. On June 12, 1981, Stateville inmate Fred “Bobo” Collins, a member of the Black Gangster Disciples, attacked rival gang member George Bailey without provocation. Collins was sentenced to thirty days in disciplinary segregation, and pledged revenge against Bailey upon his release. According to plaintiffs complaint, defendants knew of the threat and knew of the animosity between the two gangs.

Collins was released fifteen days early by order of defendant Scott and was placed in the same cellblock area where Bailey was housed. Collins was permitted to be out of his cell after normal lock-up time, during which time he plotted with fellow gang members to attack Bailey. Defendants did nothing to prevent the attack. On the evening of June 29, 1981, Collins got hold of a steel bat, which had been kept in a nearby cell in violation of security rules for over five months. Collins attacked George Bailey and struck him repeatedly in the head with the bat, causing his death. Defendants failed to provide emergency assistance to Bailey after the attack.

Adequacy of State Law Remedies

As so frequently occurs in section 1983 actions, regardless of the underlying claim, defendants argue that plaintiffs action is barred under Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981). In that case, the Supreme Court held that the random and unauthorized deprivation of property by state officials did not state a claim for a deprivation of property without due process absent allegations that post-deprivation state remedies were constitutionally inadequate. Since Illinois provides an established tort claims procedure for filing a wrongful death claim against the state, defendants argue that plaintiffs complaint fails to state a claim for constitutional relief cognizable under § 1983.

This argument may be disposed of summarily. The Supreme Court recently applied Parratt to intentional deprivations of property, Hudson v. Palmer, — U.S.-, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984), and this court has recently applied the same to liberty deprivations, LeCuyer v. Weidenbach, 613 F.Supp. 509 (N.D.Ill.1985). It is well established, however, that Parratt applies only to claims of procedural due process and does not eliminate § 1983 claims for violations of substantive constitutional guarantees. Guenther v. Holmgreen, 738 F.2d 879, 882 (7th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 1182, 84 L.Ed.2d 329 (1985); Wolf-Lillie v. Sonquist, 699 F.2d 864, 871-72 (7th Cir.1983). Plaintiff alleges that her son’s death was caused by the deliberate indifference of defendants in responding to his safety and his medical needs. Such a claim arises under the eighth amendment as applied against .the states through the fourteenth amendment, and is not controlled by Parratt. See Jackson v. City of Joliet, 715 F.2d 1200, 1204 (7th Cir.1983), cert. denied, 465 U.S. 1049, 104 S.Ct. 1325, 79 L.Ed.2d 720 (1984) (dictum stating that jailers may be liable for deliberate indifference in condoning prisoner assaults under § 1983). Thus, while plaintiff states no claim for a denial of procedural due process, Parratt does not bar her federal suit.

Eleventh Amendment

The eleventh amendment forbids suits for monetary damages or other retroactive relief to be brought against a state in federal court. Pennhurst State School & Hospital v. Halderman, 465 U.S. 89, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984); Edelman v. Jordan, 415 U.S. 651, 666-67, 94. S.Ct. 1347, 1357, 39 L.Ed.2d 662 (1974). It is well settled, however, that the eleventh amendment does not bar federal tort actions under § 1983 for money damages against officials sued in their individual capacities. Scheuer v. Rhodes, 416 U.S. 232, 237-38, 94 S.Ct. 1683, 1686-87, 40 L.Ed.2d 90 (1974). This rule is based on the theory that a state official who acts unconstitutionally is “stripped of his official or representative character and is subjected in his person to the consequences of his individual conduct.” Ex parte Young, 209 U.S. 123, 159-60, 28 S.Ct. 441, 453-54, 52 L.Ed. 714 (1908) (emphasis supplied by Scheuer Court, 416 U.S. at 237, 94 S.Ct. at 1686). See generally Kolpak v. Bell, 619 F.Supp. 359, 370-373 (N.D.Ill.1985) (Getzendanner, J.).

Defendants suggest that the Supreme Court’s recent decision in Pennhurst requires the present suit to be brought in state court. This argument is misguided. The Court in Pennhurst held that a federal suit against state officials founded in state law violates the eleventh amendment where the requested relief would operate directly against the state. In this respect, it is relevant to note that the plaintiffs in Pennhurst sought a federal court injunction to require state officials to comply with state law. 104 S.Ct. at 903-06. The Court observed that while the fiction of Ex parte Young permits actions for prospective injunctive relief to be brought against state officers in their official capacity, that fiction is unavailable where the claim rests on a violation of state rather than federal law. Id. at 911. The circuits which have addressed the issue have unanimously concluded that Pennhurst does not bar federal court suits against state officials in their individual capacities, for the simple reason that the relief in such cases does not operate directly against the state. See Spruytte v. Walters, 753 F.2d 498, 512-513 (6th Cir.1985); Demery v. Kupperman, 735 F.2d 1139, 1150 (9th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 810, 83 L.Ed.2d 803 (1985).

Defendants argue that any judgment in the present case would operate against the state by virtue of Ill.Rev.Stat., ch. 127, ¶1302, under which Illinois indemnifies its employees for liability imposed in cases such as this one. A money judgment against state officials is barred by the eleventh amendment, only if the relief requested would necessarily “expend itself on the public treasury.” Dugan v. Rank, 372 U.S. 609, 620, 83 S.Ct. 999, 1006, 10 L.Ed.2d 15 (1963). That the state voluntarily chooses to indemnify its employees does not convert a judgment against individual state officers into one against the state. Otherwise, a state could manufacture immunity for its employees by agreeing to indemnify them. See Spruytte, 753 F.2d at 512 n. 6; Demery, 735 F.2d at 1146-47; Terry v. Burke, 589 F.Supp. 853, 856 (N.D.Ill.1984); McAdoo v. Lane, 564 F.Supp. 1215, 1217-20 (N.D.Ill.1983); Kolpak, at 372.

In the present case, plaintiff has sued defendants Cobb, Franklin, Scott, Price and Rosen in both their official and individual capacities. Unlike money judgments against state officials in their personal capacities, actions against these defendants in their official capacities is barred because any monetary relief would necessarily be paid from public funds. Edelman v. Jordan, 415 U.S. 651, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). In the recent decisions of Brandon v. Holt, 105 S.Ct. 873 (1985), and Kentucky v. Graham, — U.S. -, 105 S.Ct. 3099, 87 L.Ed.2d 114 (1985), the Supreme Court made clear that a judgment against a public servant in his official capacity imposes liability on the entity that he represents. Graham, 105 S.Ct. at 3105; Brandon, 105 S.Ct. at 878. Therefore, when public officers are sued in their official capacities, they have available to them any defenses of “sovereign immunity that the entity, qua entity, may possess, such as the Eleventh Amendment.” Graham, 105 S.Ct. at 3106. Under these principles, plaintiff’s claims against defendants in their official capacities are barred by the eleventh amendment.

Graham also makes clear that the State of Illinois may not properly be joined for purpose of a potential attorney’s fees determination. In Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978), the Supreme Court held that the eleventh amendment does not bar attorney’s fee awards under 42 U.S.C. § 1988 where state officials have been successfully sued in their official capacity. As explained in Graham, this holding was bottomed on the realization that suits properly brought against state agents in their official capacity are indistinguishable from suits against the state itself. Hutto was thus not intended to alter the basic philosophy of § 1988, under which fee and merits liability run together. 105 S.Ct. at 3108. Graham therefore held that § 1988 does not authorize attorney’s fee awards against the state when its agents are sued in their personal capacities only. The authority on which plaintiff relies, Glover v. Alabama Department of Corrections, 734 F.2d 691 (11th Cir.1984), petition for cert. filed, — U.S.-, 106 S.Ct. 40, 88 L.Ed.2d 33 (1985), squarely contradicts the Supreme Court’s subsequent decision in Graham, and will not be followed. The State of Illinois must be dismissed as a named party defendant, and the action will be treated as one against the individual defendants in their personal capacities only.

Statute of Limitations

Plaintiff’s complaint was filed on April 23, 1985, approximately three years and nine months after her claim accrued. Under the law of this circuit in effect up to April 17, 1985, plaintiff’s complaint would have been timely. Beard v. Robinson, 563 F.2d 331, 336 (7th Cir.1977), cert. denied, 438 U.S. 907, 98 S.Ct. 3125, 57 L.Ed.2d 1149 (1978). In Beard, the Seventh Circuit held that the applicable limitations period for § 1983 actions brought in this district would be the five year period of Ill.Rev. Stat., ch. 83, § 16, predecessor to Ill.Rev. Stat., ch. 110, § 13-205. The Beard Court reasoned that § 1983 actions are statutory claims distinct from common-law torts, and that the two-year Illinois limitations period for personal injury actions would therefore be inapplicable. The rule of Beard has been followed consistently in this Circuit since 1977. Kolar v. County of Sangamon, 756 F.2d 564, 567 (7th Cir.1985); Movement for Opportunity and Equality v. General Motors Corp., 622 F.2d 1235, 1242 (7th Cir.1980).

On April 17, 1985, however, the Supreme Court held that all § 1983 actions should henceforth be considered closely analogous to personal injury actions for purposes of determining the appropriate state limitations period. Wilson v. Garcia, — U.S. -, 105 S.Ct. 1938, 1947, 85 L.Ed.2d 254 (1985). The parties agree that, after Wilson, § 1983 claims in this district must henceforth be governed by the two-year period of Ill.Rev.Stat., eh. 110, § 13-202 instead of the five-year period previously held applicable. Under § 13-202, plaintiff’s claim would be untimely. In Shorters v. City of Chicago, 617 F.Supp. 661 (N.D.Ill.1985), my colleague Judge Milton I. Shadur thoughtfully and persuasively argued that the five-year period of § 13-205 still governs § 1983 actions after Wilson. Since the parties in this case briefed this motion on the assumption that the two-year period of § 13-202 applies, the court will rule based on that assumption. My decision, however, should not be taken as an affirmative ruling on the appropriate Illinois limitations period for § 1983 suits nor as a disagreement with Judge Shadur’s opinion.

Plaintiff argues that the decision in Garcia, by “overruling clear past precedent” in this Circuit, should not be retroactively applied so as to defeat her claim. Plaintiff notes that the Tenth Circuit, whose analysis in Garcia was affirmed by the Supreme Court, has declined to apply its ruling retroactively, and urges a similar result upon this court. Jackson v. City of Bloomfield, 731 F.2d 652 (10th Cir.1984). At least four district judges in this state have declined to apply Garcia retroactively: Shorters v. City of Chicago, 617 F.Supp. 661 (N.D.Ill.1985, Shadur, J.); Moore v. Floro, 614 F.Supp. 328 (N.D.Ill.1985); Antonelli v. Wahl, slip op. No. 82 C 3986 (N.D.Ill. May 17, 1985) (Marshall, J.); Winston v. Sanders, 610 F.Supp. 176 (C.D.Ill.1985) (Sharp, J.).

The seminal case for analysis of retroactivity problems in this context is Chevron Oil Co. v. Huson, 404 U.S. 97, 92 S.Ct. 349, 30 L.Ed.2d 296 (1971). In Chevron, the Supreme Court refused to apply retroactively its ruling that the Louisiana one-year statute of limitations rather than the admiralty doctrine of laches should govern a claim for personal injuries suffered while working on an offshore drilling rig. The Court noted that cases dealing with the nonretroactivity of new judicial rules have generally considered three separate factors. First, the decision to be applied nonretroaetively must establish a new principle of law, either by overruling clear past precedent on which litigants may have relied, or by deciding an issue of first impression whose resolution was not clearly foreshadowed. Second, courts must consider whether retrospective operation will further or retard the operation of the new rule. Finally, courts must weigh the inequity imposed by retroactive application. 404 U.S. at 106-07, 92 S.Ct. at 355. This approach has consistently been utilized in determining the retrospective operation of new judicial rules concerning aspects in the timeliness of a claim. See, e.g., Landahl v. PPG Industries, Inc., 746 F.2d 1312, 1314-16 (7th Cir.1984).

Applying those factors to the claim in Huson, the Supreme Court determined that the rule at issue had overruled a long line of decisions under which the plaintiffs suit would have been timely filed. The Court also found that it would serve no congressional purpose to terminate a lawsuit that had “proceeded through lengthy, and no doubt, costly discovery stages for a year.” 404 U.S. at 108, 92 S.Ct. at 356. The Court finally noted that it would produce the most “substantial inequitable results” to hold that the plaintiff had slept on his rights at a time when he could not have known the time limitations the law would have imposed on him. Id.

Plaintiff urges that proper application of these factors to the present case should result in a finding of nonretroactivity. The court agrees that Garcia should not be applied retroactively for the reasons set forth in Moore, Antonelli, and Winston. Unlike those cases, however, the present suit was filed after, not before, the Supreme Court’s decision in Garcia. In Jackson v. City of Bloomfield, the Tenth Circuit expressly declined to “bar plaintiffs’ right to their day in court when their action was timely under the law in effect at the time their suit was commenced.” 731 F.2d at 655 (emphasis added). In Antonelli, Judge Marshall expressly noted that almost three years had passed since Antonelli had filed his complaint, that motions for summary judgment had been denied, and that neither defendant had previously raised the statute of limitations as an affirmative defense. Similarly, in both Moore and Winston, judges were asked to apply Garcia to a case which had been filed at least several months before the Supreme Court’s decision. By contrast, the case at bar was untimely when filed.

Plaintiff has suggested that to apply Garcia to the present case would essentially rob her of her day in court despite justifiable reliance on the prior precedent of this Circuit in not filing suit beforehand. Given the concern in Chevron over protecting the reliance of litigants on existing limitations rule when they contemplate filing suit, 404 U.S. at 106, 92 S.Ct. at 355, this argument is not without merit. In many ways, it would be inequitable to apply Garcia to plaintiff’s claim when her decision would have been timely under the law of this Circuit up till one week before plaintiff filed suit. Moreover, the Supreme Court has often reasoned that amending statutes of limitation to affect existing rights would present constitutional problems unless a reasonable time is given for the commencement of an action before the new bar takes effect. Texaco, Inc. v. Short, 454 U.S. 516, 527 n. 21, 102 S.Ct. 781, 791 n. 21, 70 L.Ed.2d 738 (1982).

The court finds that it need not reach the issue whether Chevron would protect plaintiff’s right to be in court, however, since Illinois tolling rules, which are incorporated into § 1983 actions under § 1988, Board of Regents v. Tomanio, 446 U.S. 478, 100 S.Ct. 1790, 64 L.Ed.2d 440 (1980), would allow plaintiff’s action. Illinois follows the common rule that an amendment shortening the period in which a lawsuit may be filed will not be retroactively applied to terminate a claim unless the party has a reasonable amount of time after the amendment’s effective date in which to file his action. Moore v. Jackson Park Hospital, 95 Ill.2d 223, 69 Ill.Dec. 191, 193, 447 N.E.2d 408, 410 (1983); Jones v. Brill, 97 Ill.App.3d 943, 53 Ill.Dec. 261, 262, 423 N.E.2d 930, 931 (1st Dist.1981). There is no language in these decisions which could limit this judge-made rule to statutory as opposed to judicial amendments. Plaintiff’s filing of her lawsuit within one week of the Supreme Court’s decision more than satisfies reasonable promptness so as to render the above rule applicable. It would therefore be not only inequitable but contrary to Illinois law to bar plaintiff’s claims for failure to meet the two-year personal injury statute.

Conclusion

The defendants’ motion to dismiss is granted as to the State of Illinois and to any claims against defendants in their official capacities but is otherwise denied.

It is so ordered.

      . Two other circuits have applied Garcia retroactively, but their reasoning is inapposite to cases brought in this circuit. In Jones v. Preuit & Mauldin, 763 F.2d 1250, 1253 n. 2 (11th Cir. 1985), the Court applied Garcia retroactively to reinstate a case which would otherwise have been dismissed. The defendants did not argue that Garcia should be limited to prospective operation, and the Court’s discussion is therefore not a thorough treatment of the subject. In Smith v. City of Pittsburgh, 764 F.2d 188, 195 (3d Cir.1985), the Court applied Garcia retroactively and dismissed a claim of termination of employment without due process. The Smith Court stressed the absence of a definitive holding in that circuit as to the appropriate statute of limitations which would have made it reasonable to wait more than two years to file suit, and therefore distinguished Jackson, where the plaintiffs were found to have justifiably relied on prior precedent. Because prior precedent in this circuit was clear, Jackson rather than Smith suggests the proper analysis.


author: MOTLEY, Chief Judge.

text:
    Lorentz W. HANSEN, Plaintiff, v. PRENTICE-HALL, INC., Defendant.
    No. 84 Civ. 7540 (CBM).
    United States District Court, S.D. New York.
    Sept. 11, 1985.

      Lorentz W. Hansen, White Plains, plaintiff, pro se.
    Mailman & Gigante by Alexander Gigante, New York City, for defendant.
   MEMORANDUM OPINION

MOTLEY, Chief Judge.

Plaintiff, an attorney, has brought this action claiming that defendant, Prentice-Hall, Inc., has defamed him by republishing a Second Circuit slip opinion, Lyddan v. United States, Dkt. No. 83-6022, which according to plaintiff, contained a libelous statement as to plaintiff. Defendant has moved for summary judgment and seeks sanctions against plaintiff pursuant to Federal Rules of Civil Procedure, Rule 11. Defendant’s motion for summary judgment is granted. Its motion for sanctions is denied.

FACTS

On November 1,1983, the Second Circuit issued an opinion, Lyddan v. United States, Dkt. No. 83-6022. Plaintiff, who was counsel for the plaintiff-appellant in Lyddan, requested that the appellate court revise its opinion in that case to delete a certain statement he believed to be libelous as to himself as the attorney for Lyddan. The court deleted the statement on November 9, 1983, 721 F.2d 873.

Defendant, Prentice Hall, Inc., had received the original version of the opinion in issue on November 8, 1983. This version of the decision was published verbatim in advance sheet form by defendant on November 17, 1983 in its American Federal Tax Reports (2d Series) [“AFTR”]. On November 22, 1983, defendant was sent a copy of the Court of Appeals’ amendatory order, five days after the circulation of the advance sheets. When the opinion was published in the permanent bound volume of AFTR, it was the amended version.

Plaintiff, in his amended complaint, asserts he had advised defendant of the opinion’s amendment on or about November 9th, 1983. In his affidavit submitted in opposition to this summary judgment motion, however, plaintiff states only that he believes he notified defendant of his request to the Court of Appeals to amend its opinion.

DISCUSSION

In Beary v. West Publishing Company, 763 F.2d 66, 69 (2d Cir.1985), the Second Circuit held that section 74 of the New York Civil Rights Law grants absolute immunity to the publisher of a true report of a judicial opinion, regardless of whether the reporter is classified as “official” or “unofficial.” Section 74 provides:

A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial proceeding, legislative proceeding or other official proceeding, or for any heading of the report which is a fair and true headnote of the statement published.

At the time defendant published the original opinion of the Court of Appeals, it had not been advised by that court of the amended opinion. What was published by defendant was a “fair and true report” of the original opinion of the appellate court prior to amendment. Since defendant had not received the amended opinion until several days after it had released the original opinion, it should not lose its statutory privilege. Thus, defendant Prentice Hall has an absolute defense to this libel action. It, therefore, is entitled to summary judgment as a matter of law.

Plaintiff has failed to come forward with any proof that defendant was aware of the amended decision prior to its publication of the original opinion. In his sworn affidavit, plaintiff indicates only that he “believes” he advised defendant. Such proof is insufficient to defeat a motion for summary judgment.

Defendant also has moved for sanctions against plaintiff in accordance with Rule 11 of the Federal Rules of Civil Procedure, arguing that plaintiff should have voluntarily withdrawn his suit after the Second Circuit decided Beary, supra. After carefully reviewing plaintiffs argument in defense of the summary judgment motion, however, this court believes plaintiff might have had good faith reasons to believe his case was distinguishable from Beary, supra. Prior to the bringing of this summary judgment motion and the completion of discovery, plaintiff could not be certain that defendants had not received notification of the amended opinion before it had printed the original version. If defendant had received notification prior to the printing, an issue might have existed as to whether or not the privilege attached. Accordingly, defendant’s motion for sanctions is denied.

CONCLUSION

Defendant’s motion for sanctions pursuant to Federal Rules of Civil Procedure, Rule 11 is denied. Defendant’s motion for summary judgment is granted and this action is hereby dismissed with prejudice and discontinued.

SO ORDERED.


author: GLASSER, District Judge:

text:
    Harvey GOODSON and Noreen Goodson, Plaintiffs, v. COMMISSIONER OF INTERNAL REVENUE, Defendant.
    No. 84-CV-3768.
    United States District Court, E.D. New York.
    Sept. 12, 1985.
    Martin B. Adelman, New York City, for plaintiffs.
    Raymond J. Dearie, U.S. Atty., E.D.N.Y., Brooklyn, N.Y., Kenneth C. Brown, Trial Atty., Tax Div., U.S. Dept, of Justice, Washington, D.C., for defendant.
   MEMORANDUM AND ORDER

GLASSER, District Judge:

Plaintiffs Harvey and Noreen Goodson, husband and wife, bring this action pursuant to 26 U.S.C. § 7422 seeking a refund of allegedly unlawfully assessed or collected taxes. Plaintiffs have moved this Court for an order granting them summary judgment on their claims against defendant Commissioner of Internal Revenue (hereinafter “IRS”). For the reasons set forth below, plaintiffs’ motion is denied.

Facts

The sole question presented by this action is whether the defendant mailed a notice of deficiency for the year 1975 to the taxpayers’ “last known address” within the meaning of 26 U.S.C. § 6212(b)(1) so as to require them to petition the United States Tax Court for redetermination within 90 days of such mailing. Many of the facts underlying this action are not disputed by the parties and are relevant to the determination of whether the IRS complied with the notice requirements of § 6212.

When plaintiffs filed their joint federal income tax return for the year 1975, they indicated 3030 Emmons Avenue, Brooklyn, New York 11235 as their address. Defendant thereafter questioned certain deductions claimed on the 1975 return, and the parties negotiated with each other regarding plaintiffs’ tax liability for that year. These negotiations included several extensions of the applicable civil statute of limitations, the last of which expired on December 31, 1980. During that period of time, plaintiffs’ then tax representative, Edward M. Kaplan, Esq., filed a Power of Attorney with defendant dated July 26, 1977, which requested that copies of all notices and other written communications issued by the defendant be sent to him as well.

In or about mid-October 1977, plaintiffs moved from Brooklyn to 18 Tide Way, Kings Point, New York 11024, located in Nassau County. On their tax returns for the years 1977, 1978 and 1979, plaintiffs listed the Kings Point address as their current place of residence.

On June 13, 1980, defendant mailed a notice of deficiency for the 1975 tax year to plaintiffs at the Emmons Avenue address. The notice stated that unless plaintiffs petitioned the Tax Court for redetermination of their tax liability within 90 days of the mailing date (June 13, 1980), the defendant would assess and bill plaintiffs in the amount of $12,458 for the period ending December 31, 1975. It is undisputed that plaintiffs never received this notice of deficiency; nor was one sent to their representative, Mr. Kaplan. Consequently, plaintiffs did not file a timely petition for redetermination with the Tax Court.

Plaintiffs’ contention that the defendant failed to comply with the “last known address” requirement of § 6212 rests upon two bases. First, plaintiffs urge that at the date of the mailing of the notice of deficiency, defendant’s Service Center in Holtsville, New York, had actual knowledge that plaintiffs had moved to the Kings Point address because the Service Center had communicated with plaintiffs at that address in writing several times during 1979, and that address was also noted on plaintiffs’ 1977, 1978 and 1979 returns. Second, plaintiffs urge that defendant’s District Director (for the Brooklyn District) also had knowledge of plaintiffs’ new address based on written communications received from that office in January 1980 and May 1980. The defendant admits that the Service Center and District Director mailed such correspondence to plaintiffs, but denies that any information possessed by either entity constitutes “knowledge” of plaintiffs’ Kings Point address within the meaning of § 6212(b). Discussion

Pursuant to 26 U.S.C. § 6212(b)(1), a taxpayer’s “last known address” is the “last known permanent address or legal residence of the taxpayer, or the last known temporary address of a definite duration or period to which all communications during such period should be sent.” Weinroth v. C.I.R., 74 T.C. 430, 435 (1980) (citations omitted) (emphasis in original). “It is the address to which, in light of all the surrounding facts and circumstances, the respondent reasonably believed the taxpayer wished the notice to be sent.” Id., citing Delman v. C.I.R., 384 F.2d 929 (3d Cir.1967) (emphasis added). Section 6212(b)(1) was intended to apply where IRS “did not have the taxpayer’s correct address because of the failure or inability of the taxpayer to notify [it] of a change. This section was enacted to protect [IRS] in this circumstance and is not a sword to be used by the taxpayer.” Delman, supra, 384 F.2d at 932.

Furthermore, the burden is upon the taxpayer to provide the Commissioner “with clear and concise notification of the new address.” Weinroth, supra, 74 T.C. at 435. If the IRS has not been so notified, the IRS “is entitled to rely on the address listed on the taxpayer’s return for the year for which the notice of deficiency is being issued as the taxpayer’s last known address.” Id. at 435-36 (citations omitted). The taxpayer also has the burden of proving that the IRS acted negligently in mailing the notice of deficiency. Butler v. District Director, 409 F.Supp. 853, 856 (S.D.Tex.1975). The Commissioner of the IRS, however, also “is bound to exercise reasonable diligence in ascertaining the taxpayer’s address.” Alta Sierra Vista, Inc. v. Commissioner, 62 T.C. 367, 374 (1974), aff'd, 538 F.2d 334 (9th Cir.1976).

In the instant case, the taxpayers have failed to sustain their burden of proving that there exists no genuine issue of any material fact pertaining to the notice requirements described above. While it is undisputed that plaintiffs’ post-1976 tax returns listed the Kings Point address, courts have held that the IRS is not chargeable with knowledge of a new address listed on subsequent returns filed in the same Service Center as a disputed return; such filing does not constitute “clear and concise” notice, by a taxpayer, of a change of address. See, e.g., Wagner v. United States, 473 F.Supp. 276, 279 n. 8 (E.D.Pa.1979). See also Atta Sierra Vista v. Commissioner, supra, 62 T.C. at 376-77 (notice to Service Center of change of address with respect to other returns does not constitute notice to District Director with respect to notice of deficiency for a different tax year). While one court has recently held that the subsequent filing of a tax return with a new address does give clear and concise notice to the IRS pursuant to § 6212(b), that result was only reached based on a finding that the IRS did not exercise “reasonable diligence” in ascertaining the taxpayer’s new address. Wallin v. Commissioner, 744 F.2d 674 (9th Cir.1984).

In the instant case, however, it is important to note that despite the plaintiffs’ move to Kings Point in 1977, all forms relating to the plaintiffs’ 1975 return sent by their tax attorney to the IRS in 1978 and 1979 listed plaintiffs’ address as Emmons Avenue in Brooklyn. Thus, the plaintiffs themselves (by their agent) made unclear the address at which they could be “reasonably expected” to receive the notice of deficiency for that year. In this respect, the instant case bears a similarity to Alta Sierra Vista, supra, where the petitioner “at times used four different addresses, none of which was accompanied by an explanation.” 62 T.C. at 376. The court there found that it could not say whether the IRS Commissioner had notice that the petitioner wanted the IRS to use a particular address with respect to the terms in controversy. Id. Here, Exhibits 1-3 of defendant’s Memorandum of Law can be said to have created a reasonable view on the part of IRS that the plaintiffs wanted correspondence relating to the 1975 tax year to be sent to the Brooklyn address even after plaintiffs had moved to Kings Point. Thus, on the present record, it is impossible to determine whether the defendant exercised the “reasonable diligence” discussed by the court in Wallin.

Another portion of the record in this case, however, requires some discussion. Specifically, plaintiffs contend that the documents attached as Exhibit H to their moving papers demonstrate that defendant had clear and concise notice of their change of address within the meaning of § 6212(b). That Exhibit consists of two letters from the Brooklyn District Director to plaintiffs. The first letter, dated January 18, 1980, refers to an IRS extension consent form for the 1976 year. The second letter, dated May 12, 1980, scheduled an appointment with plaintiffs to discuss their 1978 return. Both letters — concededly written before the defendant sent the Notice of Deficiency to the Brooklyn address — were mailed to plaintiffs at the Kings Point address. Thus, plaintiffs contend, the District Director must be deemed to have had notice of their Kings Point address at the time when defendants allegedly wrongfully mailed the Notice of Deficiency in controversy to Brooklyn.

While the conclusion urged by plaintiffs appears logical, it is impossible based on the current record to find that the plaintiffs have fulfilled the strict requirements of Rule 56. Although the documents in plaintiffs’ Exhibit H may constitute some evidence that the IRS had proper notice of plaintiffs’ change of address prior to mailing the Notice of Deficiency in June 1980, all other documentation relating to the 1976 and 1978 returns is absent here. Comparing this case with Alta Sierra Vista, supra, it is possible that plaintiffs provided the IRS with different addresses in relation to different tax years, thus giving the IRS the “reasonable expectation” that it could legitimately send the Notice of Deficiency in question to the Brooklyn address. Only by an examination of the parties’ written communications pertaining to the 1976 and 1978 returns — and oral testimony — will it be possible to determine which party should prevail under the circumstances of this case.

Conclusion

For the reasons set forth above, and based on the present record, plaintiffs’ motion for summary judgment is denied.

So Ordered.

      . 26 U.S.C. § 7422 provides in relevant part:
      § 7422. Civil actions for refund

      (a) No suit prior to filing claim for refund. —No suit or proceeding shall be maintained in any court for the recovery of any internal revenue tax alleged to have bveen erroneously or illegally assessed or collected, or of any penalty claimed to have been collected without authority, or of any sum alleged to have been excessive or in any manner wrongfully collected, until a claim for refund or credit has been duly filed with the Secretary of his delegate, according to the provisions of law in that regard, and the regulations of the Secretary or his delegate established in pursuance thereof.

      . 26 U.S.C. § 6212 provides in pertinent part:
      § 6212. Notice of Deficiency

      (a) In general. — If the Secretary determines that there is a deficiency in respect of any tax imposed by subtitles A or B or chapter 41, 42, 43, 44, or 45, he is authorized to send notice of such deficiency to the taxpayer by certified mail or registered mail.
      (b) Address for notice of deficiency.—
      (1) Income and gift taxes and certain excise taxes. — In the absence of notice to the Secretary under section 6903 of the existence of a fiduciary relationship, notice of a deficiency in respect of a tax imposed by subtitle A, chapter 12, chapter 41, chapter 42, chapter 43, chapter 44, or chapter 45, if mailed to the taxpayer at his last known address, shall be sufficient for purposes of subtitle A, chapter 12, chapter 41, chapter 42, chapter 43, chapter 44, chapter 45, and this chapter even if such taxpayer is deceased, or is under a legal disability, or in the case of a corporation, has terminated its existence.
      (2) Joint income tax return. — In the case of a joint income tax return filed by husband and wife, such notice of deficiency may be a single joint notice, except that if the Secretary has been notified by either spouse that separate residences have been established, then, in lieu of the single joint notice, a duplicate original of the joint notice shall be sent by certified mail or registered mail to each spouse at his last known address.

      . It is conceded that defendant has no proof that the June 13, 1980 notice of deficiency was delivered to or received by plaintiffs.

      . See plaintiffs’ 3(g) Statement at ¶ 12, and Exhibits D, G.

      . See plaintiffs' 3(g) Statement at If 13 and Exhibit H.

      . See defendant's Statement of Material Facts at ¶¶ 12-13. The defendant argues that notification of a new address to the Holtsville Service Center, to which tax returns are sent, does not constitute notice to the District Director, in Brooklyn, who issues notices of deficiency.

      . See defendant’s Memorandum of Law, Exhibits 1-3.

      . See defendant’s Memorandum of Law at 11-12.


author: HAIGHT, District Judge:

text:
    SECURITIES AND EXCHANGE COMMISSION, Plaintiff, v. John FORMA, Vincent Forma, Peter Aaron, Gerhard Meilen and Thomas Boccieri, Defendants.
    85 Civ. 3820-CHS.
    United States District Court, S.D. New York.
    Sept. 16, 1985.
    Ira Lee Sorkin, Regional Adm’r, New York City, for plaintiff S.E.C.
    Lowy & Chernis, P.C., by Paul Chernis, New York City, for defendant John Forma.
    Schwarzfeld, Ganfer & Shore, New York City, for defendant Vincent Forma.
    Weil, Gotshal & Manges, New York City, for defendant Gerhard Meilen.
    Ormsten & Evangelist by Franklin Ormsten, New York City, for defendant Thomas Boccieri.
   MEMORANDUM OPINION AND ORDER

HAIGHT, District Judge:

Defendant Thomas E. Boccieri has written to the Court under date of September 6, 1985, with copies to all other counsel of record.

Mr. Boccieri states that his attorney in these proceedings is Franklin D. Ormsten, Esq. Mr. Ormsten, an experienced S.E.C. attorney, has on the basis of his prior association with Mr. Boccieri agreed to represent the latter without fee. In view of Mr. Boccieri’s present economic circumstances, that aspect of Mr. Ormsten’s representation is important to him.

Mr. Boccieri’s letter advises that counsel for co-defendant and cross-claimant Vincent Forma has informally objected to Ormsten’s representation of Boccieri. I say “informally” because all the Court has to go by is the account contained in Boccieri’s letter. Forma has not made a motion to disqualify Ormsten as counsel for Boccieri. That is, of course, the proper procedure in cases of this nature.

Judging by the Boccieri letter, counsel for Forma, Steven Shore, Esq., takes the position that Ormsten cannot properly represent Boccieri because “Mr. Ormsten and his partner sublease their office space from Mr. Shore’s law firm and thus both firms share the same suite of offices (which is an entire floor at 112 Madison Avenue, NYC).” Letter at 3. That circumstance, together with Shore’s prior retention by Forma, apparently leads Shore to the conclusion that Ormsten should not represent Boccieri.

The logic of that conclusion escapes me. I will assume for this discussion that For-ma and Boccieri are in a genuinely adverse relationship to each other; although For-ma’s cross-claim against Boccieri would have been more persuasive on the point if it had been filed before Shore asked Ormsten to stand aside, rather than after, as appears to be the fact. But an adversary relationship between Forma and Boccieri would pose substantial ethical problems only if Ormsten and Shore were partners in the practice of law; the efficacy of an intra-firm “Chinese wall” would then have to be considered. In point of fact, however, Ormsten and Shore are not partners; Ormsten and his partner are Shore’s subtenants. Any potential problems arising out of the shared office space would appear to be adequately dealt with by Mr. Ormsten’s undertaking, set forth in the Boccieri letter, to conduct all meetings with Boccieri and others regarding this case in other premises; and that all records, files, and other documents generated by Ormsten’s representation of Boccieri “will be kept and stored at another premises other than his current office.” Letter at 4.

On the record presently before me, there is no basis for disqualifying Mr. Ormsten from his representation of Mr. Boccieri. That representation may continue, subject to the conditions Mr. Ormsten suggests himself, which I agree are appropriate in the circumstances.

If any party takes a contrary view, and wishes to disqualify Mr. Ormsten, formal motion papers, affidavits, and memoranda of pertinent authorities must be filed and served on all counsel of record.

It is SO ORDERED.


author: PIERAS, District Judge.

text:
    UNITED STATES of America, Plaintiff, v. Miguel A. SERRANO, Defendant.
    Crim. No. 84-381(JP).
    United States District Court, D. Puerto Rico.
    Sept. 18, 1985.
    Lydia Lizarribar, Asst. U.S. Atty., Hato Rey, P.R., for plaintiff.
    Bias Herrera, Jr., Hato Rey, P.R., for defendant.
   OPINION AND ORDER

PIERAS, District Judge.

I. FACTS:

The defendant, Miguel A. Serrano, is charged in a twelve count indictment with violations of Title 18 U.S.C., Section 657, 1006 and 1343. After discovery was completed and all motions were ruled upon by the Court, Jury Trial commenced on February 5, 1985. The parties had estimated a very lengthy trial due to the nature of the charges and the number of witnesses needed in order to present the charges to the Jury. After the conclusion of the fifth (5th) day of Trial, the parties requested from the Court a short continuance to meet and stipulate some of the evidence in possession of the Government to attempt an expedited trial instead of a 6 to 8 week trial. On the sixth (6th) day of Trial, the parties exchanged documents and, after requesting additional indulgences from the Court, the defendant and the Government advised that a plea agreement was being reached.

A plea agreement under Federal Rules of Criminal Procedure 11(e)(1)(A), (B) was later filed and signed by defendant, defendant’s counsel and the Assistant U.S. Attorney. The Court proceeded with an exhaustive interrogation of the defendant as required by the Federal Rules of Criminal Procedure and being satisfied that it was voluntarily given, knowing his rights and what the penalties were, the plea was accepted and a Judgment of Guilty was entered. Sentencing was then set for the month of May, 1985.

The defendant on May 17, 1985 filed a motion for postponement of sentence and withdrawal of his guilty plea pursuant to Federal Rule of Criminal Procedure 32(d). On May 22, 1985, the Court called the case for sentencing at which time the Court heard the continuance motion and granted a continuance until the parties could appraise the Court as to their position on the Motion for Withdrawal of Plea. A hearing was held on the 22nd of July. At the hearing, both the defense attorney as well as the prosecutor addressed the Court as to the merits, or lack thereof, of the withdrawal motion. The Court referred the defendant for a mental exam since he claimed that, on the day he pleaded guilty, he was not mentally stable to understand what he was doing.

II. The Guilty Plea Hearing:

Defendant is a thirty five year old person, father of four children, with three years of college education and twelve years experience as a stock broker. On November 28, 1984, the Grand Jury returned a 12 count indictment charging the defendant for misappropriation of funds, wire fraud and mail fraud. After six days of trial and having met with the Assistant U.S. Attorney, the defendant elected to move the Court for a change of plea. The Court reviewed the Plea Agreement and questioned Mr. Serrano at length and in a very careful manner to assure all that the plea was being made voluntarily.

At the beginning of the change of plea, the Court made several introductory questions to ascertain the mental competency of the defendant. Specifically, the Court asked the defendant as to his mental condition, his intake of drugs, his use of alcohol, etc. Having the defendant denied the use of alcohol, or the intake of drugs, except those for the heart condition, the Court asked both the defense counsel and prosecutor of their doubts as to the mental condition of the defendant. There were none; the Court had none.

During the Trial, Mr. Serrano had shown to be aware of what was happening, he was very helpful to the attorney on his defense and even at one point requested permission from the Court to conduct the voir dire of a witness presented by the prosecutor. All the acts prior to trial, during trial and at the change of plea fully convinced the attorneys trying the case and the Court itself that Mr. Serrano was and is mentally stable.

The Court has reviewed the whole file, the facts raised by the parties and the psychiatric exam performed on the defendant and is of the opinion that no further hearings are needed to solve the present petition.

III. LAW:

It is a basic legal principle that once a guilty plea is entered, a defendant possesses no absolute right to withdraw it even prior to the imposition of sentence. United States v. Crosby, 714 F.2d 185, 189-190 (1st Cir.1983), cert. denied, 464 U.S. 1045, 104 S.Ct. 716, 79 L.Ed.2d 178; United States v. Kobrosky, 711 F.2d 449 at 454 (1st Cir.1983); Nuñez Cordero v. United States, 533 F.2d 723, 726-727 (1st Cir.1976). However, in deciding a motion such as the one before the Court, it must be determined whether it would be “fair and just” to deny the motion advanced by the defendant. See Federal Rules of Criminal Procedure 32(d); Kercheval v. United States, 274 U.S. 220, 224, 47 S.Ct. 582, 583, 71 L.Ed. 1009 (1927).

IY. VOLUNTARINESS:

In the motion to vacate his plea, the defendant contends that: (1) On the day of the plea and the days prior to the plea,” the defendant had been under great stress”; (2) “he had suffered a heart attack”; (3) “his daughter was very sick”; (4) “he was under medication”; (5) “that he is innocent”; (6) “he was drinking heavily”; (7) “considered taking his own life”; (8) “all of the above, specially the alcohol and the medicine produced a sort of hypnotic state that negates voluntariness on his plea”.

The Court will address each point separately:

1. Defendant first asserts that on the day of the plea and prior to the plea, he was “under great stress”. There is no doubt in the Court’s mind that every accused who comes before this Court is under stress. Stress is present in every accused before this Court and we find no merit in this argument to negate voluntariness.

2. Defendant was hospitalized on December 3, 1984 due to a cardiac episode which led to defendant’s emergency hospitalization at the coronary intensive care unit of a hospital until December 7, 1984. The record of the case is devoid that the defendant actually suffered a heart attack; nonetheles, the Court was aware of the heart condition of the defendant during the Rule 11 Hearing. The defendant’s voir dire included questions as to the medicines and drugs he was taking at the time. Mr. Serrano explained to the Court the pills he was taking at the time and the reason for which they had been prescribed. The Court is of the opinion that a person with a heart condition can freely and voluntarily plea in a change of plea hearing. Therefore, points two and four are found to be without merit.

3. Defendant alleges that his daughter was very sick, however, this was presented to the Court based on the blanket assertion of the defendant. No proof was presented nor any positive evidence produced at the hearing nor at any stage. However, assuming the statement to be true, the Court is of the opinion that this reason is not sufficient to negate voluntariness in a change of plea hearing. The defendant wishes the Court to infer from his statement that eight (8) days after trial had started and 17 days after his daughter had been ill, this caused him to move for a change of plea. The Court finds no merit in this argument either.

The defendant further contends that the Court should allow the withdrawal of the plea because he is innocent. The Court on the Rule 11 Hearing unequivocally asked the defendant to state the reasons on how he committed the crime and why he considered himself guilty. Mr. Serrano had a copy of the indictment and in a very detailed and calm manner, he explained to the Court each count and how he violated the statute. Mr. Serrano comes before the Court over three months after the Hearing and on the eve of sentencing moves the Court to allow the withdrawal of the plea. The Court finds that the mere assertion of legal innocence after having appeared before the Court and pleaded guilty is not enough; to allow said allegation to prosper would make the withdrawal an automatic right. See Nuñez Cordero v. United States, supra.

4. As to defendant’s allegation that he was drinking heavily at the time, suffices to say that Mr. Serrano under oath responded to a specific question about alcohol consumption in the negative.

5. Defendant has also made a blanket assertion that at some time he considered taking his own life. The Court takes this self-serving statement for what it is worth. The defendant or counsel never brought this prior to trial or at trial nor at any time immediately after the change of plea. The Court therefore, rejects this argument.

6. Finally, the defendant advances that all these factors put together created a sort of hipnotic state that negates voluntariness. The Court, during the July hearing, considered this point raised by defendant as raising an issue as to the mental state of the defendant, therefore, a mental exam was required of the defendant. The Court has received the mental evaluation of the defendant. The psychiatrist examined the defendant on three occasions and a psycologist tested the defendant on four occasions. The results were of an alert person, with an excellent capacity for retention and an IQ of 122, which is classified as a superior level. The psychiatrist could not detect any psychotic symptoms. The psychiatrist further stated “he has never been psychotic as far as I can perceive”.

“Diagnosis:

Axis I: Generalized Anxiety Disorder, mild, at the present time.

Axis II: Borderline Personality Disorder.

Axis III: Mild Ischemia, secondary to Coronary Artery Spasm, treated.

Axis IV: Different Court Proceedings, multiple trials, multiple defenses, apparently his lawyer not having oriented him properly.

Axis V: Fair, even though having been under duress.”

V. CONCLUSION:

The Court, based on all of the above, coupled with the demeanor shown prior to Trial, at Trial and during the Rule 11 Hearing, the May 22 Hearing, and the July 22 Hearing, finds that defendant’s plea was completely voluntarily. Therefore, the Motion for Withdrawal of Plea is hereby DENIED.

The Court sets the Sentencing hearing of Mr. Serrano for October 2nd, 1985, at 9:30 a.m.

The Psychiatric Exam filed by the Government is to be made part of this Opinion and Order.

IT IS SO ORDERED.