o

secon sen aa S12 SERS rete ot Me Ee pa eee anne nt

only.” (See generally, Zurawski v. Halter, 245 F.3d 881, 888, 889 (7° Cir. 2001).
CONCLUSION
In view of the foregoing, the Plaintiff's motion for Summary Judgment and for Remand
are granted insofar as a remand is requested. The case is remanded to the Commissioner for sone

further proceedings consistent with this opinion.>

DATED: October 23, 2001 ENTER:

And havi

JAN H. LEVIN
UNITED STATES MAGISTRATE JUDGE

‘Upon remand, each party should also be given the opportunity to present further evidence
on the subject issue. If the 1976 application and/or1977 award letter are available, those documents
should be presented in evidence.

“The Plaintiff's conclusory request for reassignment to a different Administrative Law Ji udge,
respectfully, is denied.



Minute Oi Form (08/97)
. United States District Court, Northern District of Iinois
Name of Assigned Judge ‘: Sitting Judge if Other
enor Magistrate Judee Jan H. Levin than Assigned Judge

CASE NUMBER 00 C 7148 DATE 10/23/2001
CASE Lotrich vs. Massanari
TITLE

{in the following box (a) indicate the party filing the motion, ¢.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature

MOTION: of the motion being presented.]

DOCKET ENTRY:

(00) a Filed motion of [ use listing in “Motion” box above.]

2) Qo Brief in support of motion due

@) Oo Answer brief to motion due, - Reply to answer brief due :

(4) oO Ruling/Hearing on __ set for at

(5) a Status hearing[held/continued to} [set for/re-set for] on set for at

(6) a Pretrial conference[held/continued to] [set for/re-set for] on set for at :

) Oo Trial{set for/re-set for] on _ at

(8) 0 [Bench/Jury trial] [Hearing] held/continued to at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OFRCP4(m) OGeneralRule21 0 FRCP41(a)(1) 1 FRCP41(a)(2).

(10) Ml [Otherdocketentry] Enter memorandum opinion and order on plaintiff’s motion for summary
judgment or for remand. Plaintiff's motion for summary judgment or for remand [11-1 and 11-2]
is granted insofar as it requests a remand of the ALJ’s decision. The cause is hereby remanded to
the Commissioner of Social Security for further proceedings consistent with this opinion. Judgment
is entered pursuant to Rule 58 F.R.C.P. terminating case.

ab [For further detail see order attached to the original minute order.]

No notices required, advised in open court.

No notices required.

2

uraber of notices

o | Notices mailed by judge’s staff.

Notified counsel by telephone.

Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

~ Pu ip
courtroom qpoct 24 rie a
deputy’s
initials

SM

Date/time received in
central Clerk’s Office

OCT 2 5 2001

late docketed

docketing deputy initials

10/23/2001

date mailed notice

SM

mailing deputy initials



pOCKETED

5 2004
IN THE UNITED STATES DISTRICT COURT oct?

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION
STELLA LOTRICH, )
)
Plaintiff, J
) Case No. 00 C 7148
v. )
) Magistrate Judge Ian H. Levin
LARRY G. MASSANARI, Acting Commissioner)
of Social Security, )
Defendant. )
)

MEMORANDUM OPINION AND ORDER

This cause coming on to be heard on Plaintiffs Motion for Summary Judgment or for
Remand, the Court having reviewed and studied the briefs, the relevant authorities and the
record, and being duly advised in the premises, orders as follows:

BACKGROUND FACTS

The background facts are not in dispute. See Plaintiffs amended memorandum, p. 2;
Defendant’s memorandum, pp. 1-3.

ISSUE

The parties disagreement here, essentially, centers on whether the Plaintiff is entitled to
retirement insurance benefits (“RIB”) during the period 1976 to November 15, 1994, for any part
(or all) of that period that such retirement benefits are greater than the widower’s insurance
benefits (“WB”) the Plaintiff actually received during the 1976 to 1994 period.

ANALYSIS
The Administrative Law Judge (“ALJ”) denied the Plaintiff's claim as to retirement

insurance benefits for the period 1976 to 1994. The ALI’s dispositive and sole finding in


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denying the subject claim was that:

“The claimant filed an application for widow’s insurance benefits in October,

1976 and limited the scope of the application to that class of benefits only.” (R.

13)!

However, nowhere in his opinion (R. 12, 13) does the ALJ state any record factual basis
for his inherently factual finding from the “entire record” that Plaintiff in her 1976 WIB
application “limited the scope of the application” to WIB “benefits only.” (R. 13)?

In fact, Plaintiff's 1976 RIB/WIB application was not presented in the record before the
ALJ as proof that she unequivocally waived any claim to RIB benefits. Nor was a copy of the
1977 WIB award letter submitted before the ALJ, as proof that Defendant specifically warned
Plaintiff that to receive RIB a new application would be required.?

Moreover, Plaintiff points out, and Defendant does not contest, that since the mid-1960's,
“All applications for retirement and widow’s benefits” have contained a statement that the
applicant was applying for “all insurance benefits payable under Title II of the Social Security
Act.” (Plaintiff's amended memorandum, p. 5).

In these circumstances, the cause must be remanded for, at a minimum, a recitation and
greater elaboration by the ALJ as to the record factual basis for his dispositive factual finding that

the claimant in her 1976 application “limited the scope of the application” to WIB “benefits

'See also Agency Reconsideration Determination (R. 31)

Similarly, no record factual basis is recited by the Appeals Council for its conclusion that
there was an increased likelihood that Plaintiff's application and related documents “included (her]
statement that [she] did not wish to file for old-age insurance benefits.” (R.3).

In its brief, the Defendant possibly, ifnot presumably, referring to the 1976 application and
later award letter, makes the general statement that the original documentation was no longer
available for inclusion in the record (Defendant’s memorandum, p.5).

2