Coheley v. Social Security Administration, Commissioner

Filing 19

MEMORANDUM OPINION AND ORDER that the claimant must file their brief by 3/21/2016; the commissioner may file a response brief by 4/4/2016 as more fully set out in order. Signed by Judge C Lynwood Smith, Jr on 3/7/2016. (AHI )

FILED
2016 Mar-07 AM 09:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ALABAMA
MIDDLE DIVISION
KIMBERLY COHELEY,
Claimant,
vs.
CAROLYN W. COLVIN, Acting
Commissioner, Social Security
Administration,
Defendant.

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Civil Action No. 4:15-cv-782-CLS

MEMORANDUM OPINION AND ORDER
Claimant Kimberly Coheley commenced this action on May 8, 2015, pursuant
to 42 U.S.C. § 405(g), seeking judicial review of a final adverse decision of the
Commissioner, affirming the decision of the Administrative Law Judge (“ALJ”), and
thereby denying her claim for a period of disability, disability insurance, and
supplemental security income benefits.1 The case currently is before the court on
claimant’s motion to deem a prior claim as having been reopened for review by the
ALJ.2 Upon consideration of the motion, the Commissioner’s response,3 and
claimant’s reply,4 the court concludes the motion is due to be granted.

1

Doc. no. 1 (Complaint).

2

Doc. no. 15.

3

Doc. no. 17.

4

Doc. no. 18.

Claimant filed her previous claim for a period of disability, disability insurance,
and supplemental security income benefits on May 25, 2007, and alleged disability
as of May 24, 2007. Her claim was denied at the administrative level, and, after
conducting a hearing, an ALJ upheld the denial decision on July 29, 2009. The
Appeals Council denied claimant’s requests for review on April 25, 2011 and July 29,
2013.5 Claimant subsequently filed an action for judicial review in this court, and
was assigned Case No. 2:13-cv-1810-VEH. Judge Virginia Emerson Hopkins entered
a memorandum opinion and order on December 1, 2014, affirming the
Commissioner’s decision that claimant was not disabled.6 Claimant appealed Judge
Hopkins’s decision to the Eleventh Circuit Court of Appeals, but the appeal was
dismissed on July 28, 2015, for failure to prosecute.7
Claimant filed her current applications for benefits on October 5, 2010,
alleging disability as of July 25, 2009.8 Those applications initially were denied at

5

Tr. 18.

6

See doc. no. 14 (Memorandum Opinion) and doc. no. 15 (Order) in Civil Action No. 2:13cv-1810-VEH.
7

See Order of Dismissal entered on July 28, 2015, in Case No. 15-10383-D in the Eleventh
Circuit Court of Appeals.
8

Tr. 119, 123. The ALJ’s administrative opinion states that claimant’s applications for
benefits were filed on September 21, 2010. Tr. 18. But the application forms themselves clearly
state that they were filed on October 5, 2010. Tr. 119, 123. Moreover, it appears undisputed that
claimant intended to time her second application for benefits to take effect the day after the first
ALJ’s denial decision on July 29, 2009, but apparently a typographical or clerical error resulted in
the Commissioner listing her alleged onset date for her second application as July 25, 2009.

2

the administrative level on January 6, 2011,9 and claimant appealed to an ALJ.
During the August 30, 2013 administrative hearing, the following exchange occurred
between the ALJ and claimant’s counsel concerning the admission of additional
medical records:
ALJ: I’ll state for the record that I have reviewed these additional
records, and we’ll be sure that they go into the record as exhibits. I
believe that most, if not all of them, are also exhibits in the earlier case
that was decided by Judge Stephens, that was upheld by the Appeals
Council in July of this year.
Ms. Allenstein [claimant’s attorney], do you have any objection
to all of that entire case file being consolidated with this case file?
ATTY: No objection, Your Honor.
ALJ: All right. We’ll do that to give a longitudinal picture then.
(The exhibits previously identified were received into evidence
and made a part of the record.)10
The ALJ entered a decision denying plaintiff’s claims for benefits on
September 27, 2013.11 In the hearing decision, the ALJ discussed three mental health
evaluations that had already been considered in connection with claimant’s previous
claim. First:
On March 5, 2008, David R. Wilson, PhD., consultatively
9

Tr. 69-79.

10

Tr. 43 (alteration and emphasis supplied).

11

Tr. 15-32.

3

examined the claimant at the request of her attorney. Dr. Wilson opined
that the claimant suffered from bipolar disorder and migraine headaches.
He also assigned the claimant a global assessment of functioning of 48.
Dr. Wilson opined that the claimant’s level of disturbance was “so
severe that it is highly unlikely that she will be able to maintain
employment . . . .[”]
On June 10, 2009, Dr. Wilson again evaluated the claimant at the
request of her attorney. He incorporated his previous examination into
this report by using italicized type for ease of differentiation. Dr.
Wilson noted the claimant’s report of not being on any medication for
her bipolar disorder as it made her zombie.[sic] She reported that she
now had ups and downs and some difficulty with focus, but that she felt
fine. She reported reading, using the computer, and cross-stitching. The
claimant reported that her counselor at CED [Cherokee-Etowah-DeKalb
Mental Health Center] did not take the time to talk with her. The
claimant reported being in a relationship, her daughter was doing great,
and then stated that she had “lost her life.” The claimant denied any
recent use of alcohol or illegal drugs. Dr. Wilson noted the claimant to
be alert and oriented with appropriate appearance. She had intact
thought processes, but talked continually such that he had to interrupt
her. She had poor judgment and insight. The claimant reported that she
liked to watch television and sit “on the front porch listening to kids and
critters and talking to mama and daddy and checking my email on the
computer.” She stated that she still attended church and expressed a
desire to attend the upcoming Bible school. The claimant had a good
fund of general information and good mental recall. She could perform
simple math and more complex calculation with intelligence estimated
to be within the low average range. She had a mild problem with shortterm memory. Upon testing with the Minnesota Multiphasic Personality
Inventory II (MMPI), the claimant had somatic complaints and concerns
as well as depression, variable moods, became anxious and obsessed a
lot, and became manic. Dr. Wilson again opined that the claimant had
difficulties due to bipolar disorder due to not getting the treatment and
medication needed such that she would have difficulty maintaining
employment. He again assigned a global assessment of functioning of

4

48 . . . .12
Additionally:
On August 5, 2011, Dr. Grant complete[d] a medical source
statement wherein he checked boxes that indicated the claimant had
extreme limitation in her ability to understand and remember complex
instructions; maintain attention and concentration for extended periods;
and complete a normal workday and workweek without interruptions
from psychologically based symptoms and to perform at a consistent
pace without an unreasonable number and length of rest periods. He
indicated that claimant had extreme limitation in her ability to get along
with co-workers without distracting them or exhibiting behavioral
extremes. He indicated the claimant had marked limitation in her ability
to respond appropriately to criticism from supervisors, or work in close
proximity to others without being distracted by them. The claimant had
marked difficulty in her ability to understand and remember simple
instructions as well as the ability to perform activities within a schedule,
maintain regular attendance, or be punctual within customary tolerances.
Dr. Grant indicated that the claimant had moderate limitation in her
ability to remember work-like procedures, carry out short, simple
instructions, make simple work-related decisions, and sustain an
ordinary routine without special supervision. He opined the claimant
had only mild limitation in her ability to interact appropriately with the
general public, ask simple questions, request assistance, or to maintain
socially appropriate behavior, be aware of normal hazards, take
precautions for hazards, and to adhere to basic standards of neatness and
cleanliness . . . .13
The ALJ ultimately decided to afford Dr. Wilson’s opinions only little weight,
stating:
12

Tr. 25-26 (alterations supplied, citations to the record omitted).

13

Tr. 27 (alteration supplied, citations to the record omitted). Dr. Grant’s assessment was
rendered after the first ALJ’s decision, but it was submitted to the Appeals Council in support of
claimant’s request for review of that decision.

5

As stated in the previous decision, while Dr. Wilson did actually
examine the claimant, there is no evidence that he had access to the
claimant’s entire medical record. His opinions appeared to be based
solely on two examinations and the claimant’s self-report. Dr. Wilson
opined that the claimant’s “level of disturbance was so severe that it was
unlikely that she would be able to maintain employment.” This opinion
is simply not consistent with the medical record as a whole.
Additionally, two years after these opinions were rendered (in May
2011), the claimant spent time as a volunteer at a warehouse helping
storm victims while making presentations to CED where she received
global assessments of functioning with consistent steady increases over
a six-month period from March through August 2011. Therefore, little
weight is given to his assessments.14
He afforded no weight to Dr. Grant’s assessment, reasoning:
The claimant presented to CED on March 11, 2011; May 10, 2011; July
22, 2011; and August 3, 2011. During those visits, the claimant’s global
assessment of functioning increased from 59 to 60 to 62. The claimant
was observed to be stable and to have level, appropriate mood . . . .
Such reports are simply inconsistent with the medical source statement
of August 5, 2011, that showed marked and extreme limitations. The
statement is inconsistent with [Dr. Grant’s] own treating records.15
Claimant never requested the ALJ or the Appeals Council to reopen her
previous claim. Even so, she asserts that the ALJ’s consideration of Dr. Wilson’s and
Dr. Grant’s opinions in the present case amounted to a de facto reopening of the
previous claim. As the Eleventh Circuit held in Sherrod v. Chater, 74 F.3d 243 (11th
Cir. 1996):

14

Tr. 29 (emphasis supplied).

15

Tr. 29 (record citations omitted).

6

The district court’s jurisdiction in this case is limited by the Social
Security Act, and judicial review only exists over “final decisions of the
[Commissioner].” 42 U.S.C. § 405(g). As a general matter, district
courts do not have jurisdiction over the [Commissioner]’s refusal to
reopen a claim since such a refusal is not a “final decision” within the
meaning of section 405(g). Califano v. Sanders, 430 U.S. 99, 107-08, 97
S. Ct. 980, 985-86, 51 L. Ed. 2d 192 (1977); Stone v. Heckler, 778 F.2d
645, 646-47 (11th Cir. 1985). Nevertheless, subject matter jurisdiction
will exist in those cases where “a social security claim is in fact
reopened and reconsidered on the merits to any extent on the
administrative level.” Macon v. Sullivan, 929 F.2d 1524, 1529 (11th Cir.
1991); see also Passopulos v. Sullivan, 976 F.2d 642, 645-46 (11th Cir.
1992).
Sherrod, 74 F.3d at 245 (alteration and all emphasis supplied).
It cannot be denied that the ALJ in the present matter reconsidered the merits
of claimant’s prior claim to some extent. The ALJ specifically discussed medical
evidence that had been submitted in support of the prior claim, and he made a finding
that he agreed with the manner in which the previous ALJ treated that evidence. The
Commissioner asserts that the “ALJ’s consideration of [Dr. Wilson’s and Dr. Grant’s]
opinions did not amount to a reconsideration of the prior decision on the merits, given
his stated purpose for consolidating the older evidence from the prior claim with the
current case file.”16 The Commissioner also points out that the current ALJ “did not
disturb” the previous ALJ’s findings about the doctors’ opinions.17 Those two points
16

Doc. no. 17 (Commissioner’s Opposition to Plaintiff’s Motion to Deem Prior Claim
Reopened), at 4 (alteration supplied).
17

Id.

7

are not relevant, however, because the case law does not carve out any exception for
situations in which an ALJ reviews evidence from a prior decision to obtain context
— that is, “to give a longitudinal picture” of the claimant’s condition over time —
or when he agrees with the previous ALJ’s findings. Instead, the only exception is
when the ALJ reviews the prior opinion in order to determine whether the new claims
are barred by the doctrine of res judicata. See Brown v. Sullivan, 921 F.2d 1233,
1237 (11th Cir. 1991) (“[T]he Secretary must be allowed to evaluate newly proffered
evidence to determine whether to reopen the case. . . . If the Secretary merely
considers newly proffered evidence without reconsidering the merits of the previously
denied application, then he has not reopened that application. . . .) (alteration
supplied, citations omitted).
By reviewing the merits of claimant’s prior claim, the ALJ de facto reopened
that claim. Accordingly, claimant’s motion to deem her prior claim as reopened is
GRANTED. That does not mean, however, that every aspect of the prior claim will
be reviewed. As the Eleventh Circuit held in Wolfe v. Chater, 86 F.3d 1072, 1079
(11th Cir. 1996):
When we determine that an ALJ has reopened a prior decision, we have
jurisdiction to review the prior decision to the extent that it has been
reopened. See Robertson v. Sullivan, 979 F.2d 623, 625 (8th Cir. 1992)
(per curiam). On review, our task is to determine if the Secretary’s
denial of disability is supported by substantial evidence. 42 U.S.C. §
8

405(g) (Supp. 1995). We have the “power to enter, upon the pleadings
and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Secretary, with or without remanding the
cause for a rehearing.” Id. If we determine that the errors in a prior
decision would entitle the claimant to benefits that he has been denied,
then we should remand the case for a reexamination of the prior closed
application. See Jelinek v. Heckler, 764 F.2d 507, 509-11 (8th Cir.
1985).
Thus, the court will consider claimant’s prior claims to be reopened, but only for
purposes of reconsidering the opinions of Drs. Wilson and Grant.
The court recognizes that the parties may wish to submit additional briefs to
addresses issues from the reopened prior claim.18 Claimant must file any such brief
on or before March 21, 2016. The Commissioner may file a response brief on or
before April 4, 2016.
DONE this 7th day of March, 2016.

______________________________
United States District Judge

18

The parties already have submitted briefs on the issue of claimant’s disability. See doc.
no. 10 (claimant’s brief); doc. no. 13 (Commissioner’s brief); doc. no. 15 (claimant’s reply brief).

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