Brown v. Kijakazi

Filing 16

ORDERED that the Commissioner's final decision is supported by substantial evidence in the record. For the reasons articulated above, the final decision of the Commissioner is AFFIRMED. The Clerk of Court is DIRECTED to CLOSE this case. Signed by Magistrate Judge Christopher L. Ray on 9/25/24. (loh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
TIFFANY Y. BROWN,

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Plaintiff,
v.
MARTIN O’MALLEY,1
Commissioner of
Social Security,
Defendant.

CV423-215

ORDER
Plaintiff Tiffany Y. Brown seeks judicial review of the Social
Security Administration’s denial of her application for Disability
Insurance Benefits (DIB) and Supplemental Security Income (SSI). See
doc. 1.
I.

GOVERNING STANDARDS
In social security cases, courts
. . . review the Commissioner’s decision for substantial
evidence. Winschel v. Comm’r of Soc. Sec., 631 F.3d 1176,
1178 (11th Cir. 2011). “Substantial evidence is more than a
scintilla and is such relevant evidence as a reasonable person
would accept as adequate to support a conclusion. We may

Martin O’Malley is now the Commissioner of Social Security and has been
substituted for Acting Commissioner Kilolo Kijakazi as the defendant in this action
pursuant to Rule 25(d) of the Federal Rules of Civil Procedure. The Clerk is
DIRECTED to update the docket accordingly.
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not decide the facts anew, reweigh the evidence, or substitute
our judgment for that of the Commissioner.” Id. at 1178
(internal quotations and brackets omitted).
“If the
Commissioner’s decision is supported by substantial evidence,
this Court must affirm, even if the proof preponderates
against it.” Dyer v. Barnhart, 395 F.3d 1206, 1210 (11th Cir.
2005) (quotation omitted).
Mitchell v. Comm’r, Soc. Sec. Admin., 771 F.3d 780, 782 (11th Cir. 2014).
see also Biestek v. Berryhill, 587 U.S. 97, 103 (2019) (“Substantial
evidence . . . is ‘more than a mere scintilla.’ [Cit.] It means—and means
only—‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” (citations omitted)).
The burden of proving disability lies with the claimant. Moore v.
Barnhart, 405 F.3d 1208, 1211 (11th Cir. 2005). The ALJ applies
. . . a five-step, “sequential” process for determining whether
a claimant is disabled. 20 C.F.R. § 404.1520(a)(1). If an ALJ
finds a claimant disabled or not disabled at any given step,
the ALJ does not go on to the next step. Id. § 404.1520(a)(4).
At the first step, the ALJ must determine whether the
claimant is currently engaged in substantial gainful activity.
Id. § 404.1520(a)(4)(i). At the second step, the ALJ must
determine whether the impairment or combination of
impairments for which the claimant allegedly suffers is
“severe.” Id. § 404.1520(a)(4)(ii). At the third step, the ALJ
must decide whether the claimant’s severe impairments meet
or medically equal a listed impairment.
Id. §
404.1520(a)(4)(iii). If not, the ALJ must then determine at
step four whether the claimant has the RFC 2 to perform her
At steps four and five, the ALJ assesses the claimant’s residual functional capacity
(RFC) and ability to return to his past relevant work. Phillips v. Barnhart, 357 F.3d

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past relevant work. Id. § 404.1520(a)(4)(iv). If the claimant
cannot perform her past relevant work, the ALJ must
determine at step five whether the claimant can make an
adjustment to other work, considering the claimant’s RFC,
age, education, and work experience. An ALJ may make this
determination either by applying the Medical Vocational
Guidelines or by obtaining the testimony of a [Vocational
Expert (VE)].
Stone v. Comm’r. of Soc. Sec. Admin., 596 F. App’x. 878, 879 (11th Cir.
2015) (footnote added).
II.

BACKGROUND
In April 2020, Brown applied for DIB under Title II and SSI under

Title XVI of the Social Security Act.

Tr. 10; see also tr. 380-91

(applications). Brown, who was born on September 29, 1972, was 46
years old on her alleged disability onset date of February 21, 2019, 3 and
50 years old at the time of the ALJ’s decision on February 1, 2023. Tr.
19, 20. Brown completed high school, tr. 20, 445, and has past relevant

1232, 1238 (11th Cir. 2004). RFC is what “an individual is still able to do despite the
limitations caused by his or her impairments.” Id. (citing 20 C.F.R. § 404.1545(a);
Moore v. Comm’r of Soc. Sec., 478 F. App’x 623, 624 (11th Cir. 2012). “The ALJ makes
the RFC determination based on all relevant medical and other evidence presented.
In relevant part, the RFC determination is used to decide whether the claimant can
adjust to other work under the fifth step.” Jones v. Comm’r of Soc. Sec., 603 F. App’x
813, 818 (11th Cir. 2015) (quotes and cite omitted).
Brown initially alleged disability beginning on April 20, 2018, but amended the
alleged onset date to February 21, 2019. Tr. 10.
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work as a childcare attendant, tr. 18. After a hearing, tr. 35-62 (hearing
transcript), the ALJ issued an unfavorable decision, tr. 7-20.
The ALJ found that Brown’s degenerative disc disease, sciatica, and
obesity constituted severe impairments,4 but that none of her
impairments, alone or in combination, met or medically equaled a
Listing. Tr. 13-15. The ALJ then found that Brown retained the RFC for
light work as defined in 20 CFR §§ 404.1567(b) and 416.967(b),
. . . in that the claimant can occasionally lift and carry 20
pounds, frequently lift and carry 10 pounds, stand and walk 6
hours of an 8-hour workday, sit for only 6 hours of an 8-hour
workday, the claimant can only occasionally climb
ramps/stairs, stoop, kneel, and crouch. She can never climb
ladders/ropes/scaffolds.
Tr. 15; see also tr. 15-18. Brown, the ALJ determined, could not perform
her past relevant work, but could perform jobs that exist in significant
numbers in the national economy. Tr. 18-20. Therefore, she was found
not disabled. Tr. 20. The Appeals Council denied review. Tr. 1-6. Brown
filed the instant action seeking judicial review of the ALJ’s decision. See
doc. 1.

The ALJ determined Brown’s pre-diabetes mellitus, diabetes mellitus,
hypertension, gastroesophageal reflux, anemia, and depression were nonsevere
medically determinable impairments. Tr. 13-14.

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III. ANALYSIS
Brown first argues that the ALJ erred in “[f]ailing to properly
consider and apply the doctrine of administrative res judicata.” Doc. 12
at 1-2. Plaintiff’s argument is based on her prior disability application
which was denied on February 20, 2019. Doc. 12 at 2 (citing tr. 72, 75);
see also tr. 75-89 (2019 Unfavorable Decision); tr. 90-95 (Appeals Council
Notice dated December 13, 2019, denying review of 2019 Unfavorable
Decision). In the 2019 Unfavorable Decision, the ALJ considered Brown’s
alleged disability beginning March 14, 2017, and determined she
retained the RFC to perform a full range of sedentary work. Tr. 78-79.
Plaintiff argues the ALJ considering her April 2020 applications, where
she alleged a disability onset date of February 21, 2019—one day after
the 2019 Unfavorable Decision, was bound by administrative res judicata
to find her limited to sedentary exertion. Doc. 12 at 3. Instead, the ALJ
found her capable of light exertion, and, Plaintiff argues, failed to include
any explanation for the changed condition. Id. She further argues that
a sedentary RFC would mandate a finding of disability, because she has
now reached the age of fifty. Id. at 3.

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The Commissioner responds that the ALJ “properly applied
administrative res judicata to Plaintiff’s prior decision for the period from
March 14, 2017, her previous alleged onset of disability date, to February
20, 2019, the date of the ALJ’s prior decision.” Doc. 13 at 6; see also tr.
10 (“The period beginning March 14, 2017 through February 20, 2019
was previously adjudicated. . . . The Administrative Law Judge decision
dated February 20, 2019 remains final and binding in establishing that
the claimant was not disabled through that date.”).

However, the

Commissioner argues, the prior decision “does not have administrative
res judicata effect on Plaintiff’s current DIB or SSI applications for the
period after February 20, 2019.”

Doc. 13 at 7.

Defendant cites to

unpublished, yet persuasive, Eleventh Circuit authority explaining that
“administrative res judicata does not apply when a claimant’s current
applications involve an unadjudicated period.” Id. at 7-8 (citing Griffin
v. Comm’r of Soc. Sec., 560 F. App’x 837, 844 (11th Cir. 2014); McKinzie
v. Comm’r of Soc. Sec., 362 F. App’x 71, 73 (11th Cir. 2010); Moreno v.
Astrue, 366 F. App’x 23, 26-27 (11th Cir. 2010)).
The Social Security Act states that “[t]he findings and decision of
the Commissioner of Social Security after a hearing shall be binding upon
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all individuals who were parties to such hearing.” 42 U.S.C. § 405(h).
“The Social Security Administration’s regulations provide that the
Commissioner may dismiss a hearing request and decline to issue a ‘final
decision’ if the doctrine of res judicata applies in the Commissioner has
made a previous decision about the claimant’s rights on the same facts
and the same issues, and this previous determination has become final.”
Cash v. Barnhart, 327 F.3d 1252, 1255 (11th Cir. 2003) (citing 20 C.F.R.
§ 404.957(c)(1)); see also 20 C.F.R. § 416.1457(c)(1).
The Eleventh Circuit “has repeatedly held that an ALJ is not
required to apply administrative res judicata when the current
proceeding involves an unajudicated time period not at issue in the prior
decision.” Diaz v. Comm’r of Soc. Sec., 828 F. App’x 560, 562 (11th Cir.
2020) (citations omitted); see also Griffin, 560 F. App’x at 844; McKinzie,
362 F. App’x at 73; Moreno, 366 F. App’x at 26-27; Luckey v. Astrue, 331
F. App’x 634, 638 (11th Cir. 2009) (“Because the factual time period for
[claimant’s] current application is

different from her previous

application, administrative res judicata does not apply.”) .

As the

Eleventh Circuit explained in another case, relying on persuasive
authority from the Sixth Circuit: “Any earlier proceeding that found or
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rejected the onset of a disability could rarely, if ever, have actually
litigated and resolved whether a person was disabled at some later date.”
Torres v. Comm’r of Soc. Sec., 819 F. App’x 886, 888 (11th Cir. 2020)
(quoting Earley v. Comm’r of Soc. Sec., 893 F.3d 929, 933 (6th Cir. 2018))
(internal quotation marks omitted). This authority makes clear that the
ALJ was not required to apply administrative res judicata, since the
current proceeding involves an alleged disability beginning February 21,
2019, a time period which was not at issue in the 2019 Unfavorable
Decision. Compare tr. 7-26 (2023 Unfavorable Decision) with tr. 72-89
(2019 Unfavorable Decision).
Plaintiff recognizes the hurdle this authority presents. She argues
that these cases should be overruled, because they rely on the SSA’s
interpretation of its own regulation, an interpretation that Plaintiff
contends is not entitled to deference. Doc. 12 at 8. Relying on the
Supreme Court’s decision in Kisor v. Wilkie, 588 U.S. 558 (2019), Plaintiff
argues “this Court should reject SSA’s interpretation of its own
regulation, as there is no genuinely ambiguous statute and/or regulation
requiring interpretation . . . .” Doc. 12 at 8. In Kisor, the Supreme Court,
relying on Auer v. Robbins, 519 U.S. 452 (1997) and Bowles v. Seminole
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Rock & Sand Co., 325 U.S. 410 (1945), held that courts should not give
controlling deference to an agency’s interpretation of its own regulation
unless the regulation is “genuinely ambiguous.” 588 U.S. at 574. “If
uncertainty does not exist, there is no plausible reason for deference. The
regulation then just means what it means—and the court must give it
effect, as the court would any law.” Id. at 574-75.
It is not apparent that the persuasive Eleventh Circuit authority
discussed above relies at all on deference to the SSA’s interpretation of
its regulation. Instead, it appears that the Court has simply applied the
plain meaning of the regulation, that the doctrine of res judicata applies
where the SSA has made a previous determination “on the same facts
and on the same issue or issues,” 20 C.F.R. §§ 404.957(c)(1);
416.1457(c)(1), and recognized that an unajudicated time period raises
new issues. See, e.g., Moreno, 366 F. App’x at 27; McKinzie, 362 F. App’x
at 73; Luckey, 331 F. App’x 638. For example, in Griffin, the Eleventh
Circuit cited the Social Security Act, 42 U.S.C. § 405(h), the SSA’s
regulations, 20 C.F.R. § 404.957(c)(1), and Cash, 327 F.3d at 1254-55, to
support its decision that administrative res judicata did not apply where
the prior decision adjudicated a different time period, because “the prior
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decision did not finally adjudicate any issues or facts that were raised in
this proceeding.” 560 F. App’x at 844. Additionally, the Eleventh Circuit
in Diaz recognized that its prior precedent on this issue “is consistent
with the regulations of the Commissioner . . . .” 828 F. App’x at 562. The
result Plaintiff seeks, for this Court to find that “there is no genuinely
ambiguous statute and/or regulation requiring interpretation,” would
require the Court to “give [the regulation] effect, as the court would any
law.” Kisor, 588 U.S. at 575. This would result in the same conclusion
the Eleventh Circuit has reached in the several cases discussed above,
res judicata does not apply to Plaintiff’s claim because “the prior decision
did not finally adjudicate any issues or facts that were raised in this
proceeding.” Griffin, 560 F. App’x at 844. Therefore, Plaintiff’s argument
does not clear the hurdle.
Plaintiff’s second argument also fails.

She argues that, even

without the application of administrative res judicata, the 2019
Unfavorable Decision, which became the Commissioner’s final decision
on December 13, 2019 when the Appeals Council denied review, tr. 9095, “leaves a finding that at least through December 13, 2019 Plaintiff
was limited to sedentary exertion.” Doc. 12 at 12. This is based on a
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misunderstanding of the Appeals Council review process.

As the

Supreme Court explained, “SSA regulations provide that, if the Appeals
Council grants review of a claim, then the decision that the Council issues
is the Commissioner’s final decision. But if, as here, the Council denies
the request for review, the ALJ’s opinion becomes the final decision.”
Sims v. Apfel, 530 U.S. 103, 106-7 (2000). Therefore, while December 13,
2019 is relevant, since it is the date the ALJ’s decision became final, the
decision dated February 20, 2019 establishes the relevant time period
adjudicated. Tr. 72-89. The Commissioner correctly notes that “the
ALJ’s decision, issued February 20, 2019, necessarily only concerned the
period from Plaintiff’s alleged onset date through that the date of the
decision.” Doc. 13 at 10 n. 5.
This leaves Plaintiff’s final argument, that the ALJ’s RFC
determination is not supported by substantial evidence. Doc. 12 at 1315. Other than pointing to the 2019 Unfavorable Decision, which, as
discussed above, deals with a different time frame and is therefore
irrelevant to the current proceeding,5 Plaintiff points to a “medical
See Tomaszewski v. Colvin, 649 F. App’x 705, 706 (11th Cir. 2016) (“[Claimant’s]
new SSI application covers a different time period, and involves new evidence that is
independent from the prior application.”); see also McKinzie, 362 F. App’x at 73 (citing
Reynolds v. Bowen, 844 F.2d 451, 453-54 (7th Cir. 1988) (evidence in prior application
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opinion from an SSA doctor of no improvement from [February 20, 2019].”
Doc. 12 at 15. Although Plaintiff’s citation to the record is incomplete,
she seems to rely on a Disability Determination Explanation from Dr.
Sergio Bello, who noted that “[i]t is more likely than not that claimant
continues to have chronic pain and dysfunction that would be more than
non-severe and it is unlikely to have improved from the ALJ.” Tr. 135;
see also doc. 12 at 13.
As discussed above, at step four of the sequential process, the ALJ
evaluates a claimant's RFC and ability to return to past relevant work.
20 C.F.R. §§ 404.1520(a)(4)(iv), (e); 416.920(a)(4)(iv), (e). RFC is defined
in the regulations “as that which an individual is still able to do despite
the limitations caused by his or her impairments.” Phillips, 357 F.3d at
1238 (citation omitted), superseded on other grounds by 20 C.F.R.
§ 404.1520c. Courts have described RFC as “a medical assessment of
what the claimant can do in a work setting despite any mental, physical
or environmental limitations caused by the claimant's impairments and
related symptoms.” Watkins v. Comm'r of Soc. Sec., 457 F. App'x 868,

is “completely irrelevant” to the instant application, where alleged onset date is after
the prior application was denied)).

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870 n. 5 (11th Cir. 2012) (citations omitted). The ALJ must consider all
record evidence about all the claimant's impairments, including those
that are not severe, and must consider statements about what a claimant
can do from medical sources and the claimant. 20 C.F.R. §§ 404.1545(a);
416.945(a).
The ALJ’s February 1, 2023 decision shows he appropriately
considered the record evidence in formulating Plaintiff’s RFC. Tr. 15-18.
He reviewed the medical evidence, tr. 16-17, followed the required rubric
in discounting Plaintiff’s own subjective testimony, tr. 17-18,6 and
specifically acknowledged the agency reconsidered medical opinion cited
by Plaintiff, tr. 18. In considering the agency medical opinion, he found
it “persuasive only insofar as it comports with a residual functional

When a claimant provides testimony concerning his subjective symptoms, the ALJ
must determine whether there exists “(1) evidence of an underlying medical
condition; and (2) either (a) objective medical evidence confirming the severity of the
alleged pain; or (b) that the objectively determined medical condition can reasonably
be expected to give rise to the claimed pain.” Wilson v. Barnhart, 284 F.3d 1219, 1225
(11th Cir. 2002); Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991). “If the record
shows the claimant has a medically determinable impairment that could reasonably
be expected to produce [his] symptoms, the ALJ must evaluate the intensity and
persistence of the symptoms in determining how they limit the claimant's capacity
for work” in light of the objective medical evidence and statements by the claimant
and her doctors. See Costigan v. Comm'r of Soc. Sec., 603 F. App'x 783, 786 (11th Cir.
2015) (citing 20 C.F.R. § 404.1529(c)(1)-(2)). “If the ALJ discredits subjective
testimony, he must articulate explicit and adequate reasons for doing so.” Wilson,
284 F.3d at 1225.
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capacity for a limited range of light work, which is supported by the
totality of the record, which shows ongoing and consistent gait, strength
and work activity despite symptoms.” Tr. 18; see also, e.g., 20 C.F.R.
§ 404.1520c.

Plaintiff is, therefore, incorrect that there was “no

acknowledgment” by the ALJ of the agency medical examiner’s notation.
Doc. 12 at 13. The ALJ’s determination of Plaintiff’s RFC is supported
by substantial evidence.
IV.

CONCLUSION

Administrative res judicata does not apply in this proceeding, and
the Commissioner’s final decision is supported by substantial evidence in
the record. For the reasons articulated above, the final decision of the
Commissioner is AFFIRMED. The Clerk of Court is DIRECTED to
CLOSE this case.
SO ORDERED, this 25th day of September, 2024.

_______________________________
___________
______________
____________
CHRISTOPHER
HRIST
STOP
PHER L. RAY
UNITED
NITED STATES
S MAGISTRAT
MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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