Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

IN RE SMITH

December 5, 1995

Re: Mary Smith (a fictitious designation)
v.
Donna E. Shalala, Secretary of Health and Human Services



The opinion of the court was delivered by: LECHNER

 ORIGINAL FILED WITH THE CLERK OF THE COURT

 Counsel:

 This is an action brought under section 205(g) of the Social Security Act (the "Act"), as amended, 42 U.S.C. § 405(g), to appeal the final determination of the Secretary of Health and Human Services (the "Secretary") denying the application of plaintiff Mary Smith *fn1" ("Smith") for disability insurance benefits. *fn2" Jurisdiction is alleged pursuant to 42 U.S.C. § 405(g). For the reasons set forth below, this matter is remanded for further proceedings consistent with this opinion.

 Procedural History

 On 1 August 1992, Smith filed an application (the "Application") for disability insurance benefits under the Act, alleging disability due to severe multiple sclerosis. Tr. at 54. The Secretary initially denied the Application; Smith filed a request for reconsideration on 1 October 1992. Id. at 57. The Secretary denied the request for reconsideration on 18 November 1992. Id. at 59. On 4 January 1993, Smith filed a request for a review of the Application by an administrative law judge ("ALJ") Id. at 60.

 Administrative Law Judge Irving Fliegler ("ALJ Fliegler") held a hearing (the "Hearing") on 15 September 1993. Tr. at 25. On 24 September 1993, ALJ Fliegler rendered his decision, determining that Smith was not entitled to disability benefits because she did not satisfy the insured status requirements under the Act. Id. at 15. On 24 November 1993 Smith requested the Appeals Council of the Social Security Administration's Office of Hearings and Appeals (the "Appeals Council") review ALJ Fliegler's decision. Id. at 4. In a notice, dated 28 March 1994 (the "Appeals Council Notice"), the Appeals Council denied Smith's request to review ALJ Fliegler's decision. Id. at 2-3. Because the Appeals Council denied review, ALJ Fliegler's decision became the final decision of the Secretary. See 20 C.F.R. § 404.981.

 Smith now seeks judicial review of the Secretary's determination. As stated, the Appeals Council Notice denying review of ALJ Fliegler's decision is stamped "MAR 28 1994." Tr. at 2. Pursuant to 42 U.S.C. § 405(g), Smith could appeal ALJ Fliegler's decision by filing a claim within sixty days after the mailing of the Appeals Council Notice. Smith timely filed a complaint with the clerk of the court on 27 May 1994. See 42 U.S.C. § 405(g). *fn3" Thereafter, the parties filed their submissions.

 The issue in this case is whether Smith, who alleges she signed under duress inaccurate tax returns filed jointly with her husband, may submit to the Secretary proof of self-employment income in the form of amended tax returns filed after the deadlines promulgated by Congress and the Secretary. If the Secretary accepts such untimely-submitted amended tax returns as proof of Smith's income, she would have the opportunity to meet the insured status requirements under the Act and, if successful, could then receive disability insurance benefits upon a showing that she was "disabled," as that term is defined in the Act.

 Facts

 A. Background and Hearing Testimony of Smith

 Smith is a forty-nine year old mother of three children. Moving Brief at 2. In 1971, at the age of twenty-five, she became a registered nurse and married. Id.; Tr. at 31. After the birth of her three children Smith stopped working to raise her children. Moving Brief at 2.

 Smith stated that two or three years into her marriage it became apparent to her that her "husband had a drinking problem." Tr. at 31. Her husband began to behave in an emotionally abusive manner. This emotional abuse included "verbal abuses, ... put downs and ... humiliations and degrading remarks and everything." Id. She stated her husband first became physically violent in 1974, about three or four years after they were married. Id. at 31-32. Smith stated that, on one occasion, she and her husband were in their car when Mr. Smith began "hollering" at her. Smith testified that he then struck her leg hard enough to leave a three-inch by four-inch bruise, which made walking difficult. Smith stated that her husband then "put his fingers through [her] hair on [the] left side of [her] head and then banged [her] head into the car window on the passenger side." Id. at 32.

 Smith stated such physical abuse was only the first of many violent attacks upon her. She stated that her husband has also punched her in the nose, which caused her to lose consciousness, and he has also repeatedly pushed and slapped her and thrown objects at her. Tr. at 41.

 Smith stated: "I am in fear of my life because I am -- when I am in bed, I can't get up and run out to be safe. I told the kids that if they ever see Daddy come upstairs with a shotgun or something, I said, get yourselves out of the house. Go to the neighbors and call the police." Tr. at 48.

 Smith also stated that her husband physically and emotionally abused their children. Tr. at 32. Smith stated:

 
My oldest son, Frank, Frank, he would always ask "When is Daddy coming home? When's Daddy coming home?" And I thought, and I thought he missed his father. But now that he's grown now, he's almost 22. He says "Yeah, I used to ask that because I was so scared when Daddy was coming home...." He said "I'd be climbing up the ladder [of his bunk bed] trying to get away and he'd be, you know, punching me, hitting me.

 Smith stated that she returned to nursing in 1981. She continued working as a self-employed nurse until late 1983, when the onset of multiple sclerosis began to cause her difficulty working. Tr. at 32-33. Smith worked intermittently from late 1983 until May 1986, ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.