Evans v. Colvin

Filing 21

MEMORANDUM OPINION AND ORDER entered. After considering the administrative record and the memoranda of the parties, it is ORDERED that the decision of the Commissioner be REVERSED and that this action be REMANDED for further proceedings, as more fully set out in Order. Signed by Magistrate Judge Bert W. Milling, Jr on 3/12/2015. (clr)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ALABAMA
NORTHERN DIVISION
RICHARD EVANS,

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Plaintiff,
vs.
CAROLYN W. COLVIN,
Social Security Commissioner,
Defendant.

CIVIL ACTION 14-0303-M

MEMORANDUM OPINION AND ORDER
In this action under 42 U.S.C. § 405(g), Plaintiff seeks
judicial review of an adverse social security ruling which
denied a claim for disability insurance benefits (Docs. 1, 12).
The parties filed written consent and this action has been
referred to the undersigned Magistrate Judge to conduct all
proceedings and order the entry of judgment in accordance with
28 U.S.C. § 636(c) and Fed.R.Civ.P. 73 (see Doc. 20).
argument was waived in this action (Doc. 19).

Oral

After considering

the administrative record and the memoranda of the parties, it
is ORDERED that the decision of the Commissioner be REVERSED and
that this action be REMANDED for further proceedings not
inconsistent with the Orders of the Court.
This Court is not free to reweigh the evidence or
substitute its judgment for that of the Secretary of Health and

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Human Services, Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th
Cir. 1983), which must be supported by substantial evidence.
Richardson v. Perales, 402 U.S. 389, 401 (1971).

The

substantial evidence test requires “that the decision under
review be supported by evidence sufficient to justify a
reasoning mind in accepting it; it is more than a scintilla, but
less than a preponderance.”

Brady v. Heckler, 724 F.2d 914, 918

(11th Cir. 1984), quoting Jones v. Schweiker, 551 F.Supp. 205 (D.
Md. 1982).
At the time of the administrative hearing, Plaintiff was
thirty years old, had received a certificate that he had
attended high school (Tr. 37), and had previous work experience
as a tire changer, oil changer, and furniture mover (Tr. 45).
In claiming benefits, Evans alleges disability due to mild
mental retardation and cervical and lumbar degenerative disc
disease (Doc. 11).

It should be noted that Evans “has already

been found eligible for Supplemental Security Income benefits
(“SSI”), pursuant to Title XVI of the Act (Tr. 97-98)” (Doc. 15,
n.3).
The Plaintiff applied for disability benefits on January
27, 2010, alleging an onset date of October 30, 2009 (Tr. 20708).

An Administrative Law Judge (hereinafter ALJ) denied

benefits (Tr. 81-91); however, the Appeals Council remanded the
action back for two determinations:

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(1) whether Evans’s

earnings from 2004 through 2009 were substantial gainful
activity (hereinafter SGA); and (2) if yes, were the
Supplemental Security Income (hereinafter SSI) payments Evans
had received inappropriately paid (Tr. 97-98).
On remand, the ALJ determined that Evans had engaged in SGA
since October 30, 2009, his alleged disability onset date, as
the work performed “involved significant physical or mental
activities, and [] the claimant did this work in anticipation of
pay or profit” (Tr. 12).

The ALJ then held that this finding

precluded using the doctrine of collateral estoppel.

The ALJ

further held that Evans did not meet the requirements of any
Listing and could not return to his past relevant work but could
perform medium exertion jobs (Tr. 10-25).

Plaintiff requested

review of the hearing decision (Tr. 190-93) by the Appeals
Council, but it was denied (Tr. 1-5).

The relevant evidence of

record follows.
Plaintiff claims that the opinion of the ALJ is not
supported by substantial evidence.
that:

Specifically, Evans alleges

(1) The ALJ failed to apply the doctrine of collateral

estoppel in reaching his determination; and (2) Plaintiff is
mentally retarded, meeting the requirements of Listing 12.05C
(Doc. 12).

Defendant has responded to—and denies—these claims

(Doc. 15).
The Court notes that Plaintiff, in his brief, has made the

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following argument regarding his first claim.

As it has gone,

essentially, unanswered by Respondent (Doc. 15, pp. 10-11), the
Court will set it out herein in its entirety:
1. The ALJ erred in failing to properly
apply the doctrine of collateral estoppel,
which requires him to adopt the findings of
the Title XVI claim in connection with the
Title II claim.
Mr. Evans applied for SSI benefits in
1993, which were approved under the
childhood SSI rules. In 1998, his claim was
reviewed and deemed ceased under the adult
SSI rules. On February 18, 1999, ALJ Calvin
Washington issued a Fully Favorable Decision
finding his disability had not ceased and he
continued to be disabled based on the severe
impairment of mild mental retardation. None
of the SSI determinations are included in
the record before the Court.
Mr. Evans filed the current application
on January 27, 2010. (Tr. 207-08). At the
hearing [before] the ALJ on June 15, 2011,
the ALJ took testimony regarding the SSI
claim, confirming Mr. Evans had collected
SSI while he was in school, the SSI was
stopped while he worked, and the SSI
benefits resumed after he stopped working.
(Tr. 56). At the hearing on September 25,
2012, Mr. Evans testified he had repaid an
overpayment on his SSI record and his SSI
benefits had been reinstated to the full
amount. (Tr. 34-35).
When remanding the claim after the
ALJ’s first denial, the Appeals Council
raised the likelihood that collateral
estopped would apply to this case, based on
the prior SSI decision.
The Hearing, Appeals and Litigation Law
Manual (HALLEX) and the Social Security
Regulations address the doctrine of
collateral estoppel. “When an [ALJ] has for
decision an issue which has already been

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decided in a previous determination or
decision in a claim involving the same
claimant, but arising under a different
title of the Social Security Act, the ALJ
will not consider the issue again. In this
situation, the ALJ will apply the doctrine
of collateral estoppel and accept the
factual finding made in the previous
determination or decision, and a statement
that such finding is binding in the current
claim.” (HALLEX I-2-2-30, citing 20 C.F.R.
§ 404.950(f)).
The SSA’s Program Operations Manual
System (POMS) indicates collateral estoppel
applies as long as the rules for determining
disability have not changed; and there is no
reason to question the correctness of the
prior determination. (POMS DI 27515.001).
In fact, the ALJ did not apply the
doctrine of collateral estoppel, even though
the Appeals Council suggested it might apply
to this case. He reviewed the earnings
records to determine Mr. Evans had engaged
in substantial gainful activity (SGA) during
the years 2004 through 2009. He then
concluded, “The undersigned finds that based
on the fact that the claimant has engaged in
substantial gainful activity, the doctrine
of collateral estoppels does not apply.”
(Tr. 14). The ALJ provided no basis for his
opinion that engaging in SGA precluded the
application of collateral estoppel. The
regulations likewise do not address SGA in
relation to collateral estoppel.
The final SSI decision in this case is
the 1999 determination that Mr. Evans
continued to be disabled. Fifteen years
have passed since that determination. The
social security regulations allow a SSI
application to be reopened more than four
years later only for fraud or similar fault.
POMS DI 27505.001(A)(4)(c). There is no
allegation or evidence of fraud in this
case.
During the fifteen years since the
final SSI determination, Mr. Evans engaged
in work activity that resulted in an

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overpayment of his SSI benefits, and his SSI
benefits were reinstated when he stopped
working. (Tr. 34, 56). Clearly he remains
eligible for SSI benefits. As the
disability rules for SSI and social security
disability are the same, medical eligibility
for one Title should result in medical
eligibility for the other Title. This is
the purpose of collateral estoppel.
“Collateral estoppel, like the related
doctrine of res judicata, has the dual
purpose of protecting litigants from the
burden of relitigating an identical issue
with the same party or his privy and of
promoting judicial economy by preventing
needless litigation.” Parklane Hosiery Co.,
Inc. v. Shore, 439 U.S. 322[, 326] (1979).
The only possible reason an ALJ would
be allowed to consider the same issue would
be if there are reasons to believe the prior
decision was incorrect. However, the ALJ
made no such assertion. He completely
ignored the prior determinations and thereby
neglected to justify his failure to apply
collateral estoppel.
Case law supports the doctrine, finding
that work activity can interrupt periods of
eligibility without ending eligibility. A
claimant whose impairment meets a listing is
disabled regardless of the fact that he or
she worked in the past with the impairments
or could return to his or her past work.
Ambers v. Heckler, 736 F.2d 1467, 1469-70
(11th Cir. 1984). In Ambers, the court found
that a mentally retarded claimant who was
gainfully employed in the past is disabled
upon the cessation of employment. Id. at
1469; see also Powell ex rel. Powell v.
Heckler, 773 F.2d 1572, 1576-77 (11th Cir.
1985) (finding that a claimant with a longstanding mental illness was eligible for
disability benefits for those periods from
1978 to 1982 during which his income was
below that sufficient to constitute
substantial gainful activity.).
In Vaughn v. Astrue, 494 F.Supp.2d 1269
(N.D. Ala. 2007), the court faulted the

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ALJ’s decision which apparently relied on
the claimant’s ability to perform her past
jobs even though she satisfied the
requirements of Listing 12.05C. Id. at
1274. The court concluded that the ALJ
misapplied the law because once the claimant
is “found to suffer from a Listed
impairment, vocational factors are
irrelevant.” Id.
The ALJ erred in failing to apply the
doctrine of collateral estoppel in this
matter. He should have developed the
evidence by obtaining the prior SSI
determination to determine which issues were
not to be re-adjudicated. He then should
have limited his determination to other
issues. This case is due to be remanded for
proper application of collateral estoppel.
(Doc. 12, pp. 2-4).

In Response, the Government asserts that

the ALJ did implicitly what he was instructed to do explicitly,
viz., find that the earlier determination of mental retardation
under Listing 12.05C was wrong (Doc. 15, pp. 10-11).
The Court finds the Government’s response an acknowledgment
that the ALJ has not done the job he was instructed to do.

The

law presented by Plaintiff shows that his mental retardation was
established in the granting of SSI benefits.

The Title II and

Title XVI Listing requirements are the same and have not
changed.

The ALJ must either uphold the original finding and

proceed with those findings or show cause why they are to be set
aside and advance from that point.

The ALJ, in this most recent

determination, has done neither.
The Court would further note that Plaintiff’s second

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argument, that he meets the requirements of Listing 12.05C,
needs revisiting as well, should resolution of the first issue
not satisfy the question of disability.

The ALJ’s reliance on

the results of an outdated test with less than full data
presented represents, in this Court’s mind, something less than
substantial evidence.
Based on review of the entire record, the Court finds that
the Commissioner's decision is not supported by substantial evidence.

Therefore, it is ORDERED that the action be REVERSED and

REMANDED to the Social Security Administration for further
administrative proceedings consistent with this opinion, to
include, at a minimum, a supplemental hearing for the gathering
of evidence regarding Plaintiff’s past SSI finding of
disability.

Judgment will be entered by separate Order.

DONE this 12th day of March, 2015.

s/BERT W. MILLING, JR.
UNITED STATES MAGISTRATE JUDGE

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