JESSEE v. COLVIN
ENTRY - Plaintiff Raydeen Jessee brought this suit for judicial review of the defendant Commissioner of Social Security's denial of his application for disability benefits under the Supplemental Security Income program of the Social Securi ty Act. The Commissioner's decision denying Mr. Jessee's claim for S.S.I. benefits will be reversed and the claim will be remanded for reconsideration of Mr. Jessee's impairments at step three. In all other respects, the Commissioner's decision is affirmed. Signed by Judge Sarah Evans Barker on 2/9/2018. (CKM)
UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF INDIANA,
CAUSE NO. 1:16-cv-3188-SEB-MJD
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Plaintiff Raydeen Jessee brought this suit for judicial review of the defendant
Commissioner of Social Security’s denial of his application for disability benefits under
the Supplemental Security Income program of the Social Security Act. For the reasons
explained herein, the Commissioner’s denial is reversed and Mr. Jessee’s claim is
Judicial review of the Commissioner’s factual findings is deferential: courts must
affirm if her findings are supported by substantial evidence in the record. 42 U.S.C. '
405(g); Skarbek v. Barnhart, 390 F.3d 500, 503 (7th Cir. 2004); Gudgel v. Barnhart, 345 F.3d
467, 470 (7th Cir. 2003). Substantial evidence is more than a scintilla, but less than a
preponderance, of the evidence. Wood v. Thompson, 246 F.3d 1026, 1029 (7th Cir. 2001). If
the evidence is sufficient for a reasonable person to conclude that it adequately supports
the Commissioner’s decision, then it is substantial evidence. Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971); Carradine v. Barnhart, 360 F.3d 751, 758
(7th Cir. 2004). This limited scope of judicial review derives from the principle that
Congress has designated the Commissioner, not the courts, to make disability
In reviewing the decision of the ALJ [administrative law judge], we cannot
engage in our own analysis of whether [the claimant] is severely impaired
as defined by the SSA regulations. Nor may we reweigh evidence, resolve
conflicts in the record, decide questions of credibility, or, in general,
substitute our own judgment for that of the Commissioner. Our task is
limited to determining whether the ALJ’s factual findings are supported by
Young v. Barnhart, 362 F.3d 995, 1001 (7th Cir. 2004). Carradine, 360 F.3d at 758. While
review of the Commissioner=s factual findings is deferential, review of her legal
conclusions is de novo. Jones v. Astrue, 623 F.3d 1155, 1160 (7th Cir. 2010).
The Social Security Act defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically-determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months . . . .” 42 U.S.C. §
1382(a)(3)(A); 20 C.F.R. § 416.905(a). A person will be determined to be disabled only if
his impairments “are of such severity that he is not only unable to do his previous work
but cannot, considering his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he lives, or whether a specific
job vacancy exists for him, or whether he would be hired if he applied for work.” 42
U.S.C. §1382c(a)(3)(B); 20 C.F.R. §§ 416.905, 416.966. The combined effect of all of an
applicant’s impairments shall be considered throughout the disability determination
process. 42 U.S.C. ' 1382c(a)(3)(G); 20 C.F.R. § 416.923.
The Social Security Administration has implemented these statutory standards
in part by prescribing a “five-step sequential evaluation process” for determining
disability. If disability status can be determined at any step in the sequence, an
application will not be reviewed further. At the first step, if the applicant is currently
engaged in substantial gainful activity, then he is not disabled. At the second step, if the
applicant’s impairments are not severe, then he is not disabled. A severe impairment is
one that “significantly limits [a claimant’s] physical or mental ability to do basic work
activities.” Third, if the applicant’s impairments, either singly or in combination, meet
or medically equal the criteria of any of the conditions included in the Listing of
Impairments, 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, Part A, then the applicant is
deemed disabled. The Listing of Impairments are medical conditions defined by criteria
that the Social Security Administration has pre-determined are disabling. 20 C.F.R. '
416.925. If the applicant’s impairments do not satisfy the criteria of a listing, then her
residual functional capacity (“RFC”) will be determined for the purposes of the next
two steps. RFC is an applicant’s ability to do work on a regular and continuing basis
despite his impairment-related physical and mental limitations and is categorized as
sedentary, light, medium, or heavy, together with any additional non-exertional
restrictions. At the fourth step, if the applicant has the RFC to perform his past relevant
work, then he is not disabled. Fifth, considering the applicant’s age, work experience,
and education (which are not considered at step four), and his RFC, the Commissioner
determines if he can perform any other work that exists in significant numbers in the
national economy. 42 U.S.C. ' 416.920(a)
The burden rests on the applicant to prove satisfaction of steps one through
four. The burden then shifts to the Commissioner at step five to establish that there are
jobs that the applicant can perform in the national economy. Young v. Barnhart, 362 F.3d
995, 1000 (7th Cir. 2004). If an applicant has only exertional limitations that allow her to
perform the full range of work at her assigned RFC level, then the Medical-Vocational
Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, Part A (the “grids”), may be used
at step five to arrive at a disability determination. The grids are tables that correlate an
applicant’s age, work experience, education, and RFC with predetermined findings of
disabled or not-disabled. If an applicant has non-exertional limitations or exertional
limitations that limit the full range of employment opportunities at his assigned work
level, then the grids may not be used to determine disability at that level. Instead, a
vocational expert must testify regarding the numbers of jobs existing in the economy for
a person with the applicant’s particular vocational and medical characteristics. Lee v.
Sullivan, 988 F.2d 789, 793 (7th Cir. 1993). The grids result, however, may be used as an
advisory guideline in such cases.
An application for benefits, together with any evidence submitted by the
applicant and obtained by the agency, undergoes initial review by a state-agency
disability examiner and a physician or other medical specialist. If the application is
denied, the applicant may request reconsideration review, which is conducted by
different disability and medical experts. If denied again, the applicant may request a
hearing before an administrative law judge (“ALJ”). 1 An applicant who is dissatisfied
with the decision of the ALJ may request the SSA’s Appeals Council to review the
decision. If the Appeals Council either affirms or declines to review the decision, then
the applicant may file an action in district court for judicial review. 42 U.S.C. ' 405(g). If
the Appeals Council declines to review a decision, then the decision of the ALJ becomes
the final decision of the Commissioner for judicial review.
Mr. Jessee applied for disability benefits on February 18, 2014. (R. 232). He
alleged that his ability to work is limited by depression, chronic obstructive pulmonary
1 By agreement with the Social Security Administration, initial and reconsideration reviews in Indiana
are performed by an agency of state government, the Disability Determination Bureau, a division of the
Indiana Family and Social Services Administration. 20 C.F.R. Part 404, Subpart Q (' 404.1601, et seq.).
Hearings before ALJs and subsequent proceedings are conducted by personnel of the federal Social
disease (“COPD”), arthritis, severe nerve damage to his back, diabetes, eyesight and
hearing problems, congestive heart failure, high blood pressure, and neuropathy. (R.
258). He was represented by experienced disability counsel from the time of his
application through the Commissioner’s final denial. (R. 165, 167). A hearing was held
in February 2016 during which Mr. Jessee and a vocational expert testified. The ALJ
issued her decision in April 2016.
At step one, the ALJ found that Mr. Jessee had not engaged in substantial gainful
activity since his date of application, in January 2014. At step two, she found that he
has severe impairments of coronary artery disease, history of mycardial infarction,
hypertension, peripheral edema, hyperlipidemia, diabetes, neuropathy, COPD, right
shoulder rotator cuff tendinopathy, tear of the anterior superior labrum, osteoarthritis
of the right shoulder, obesity, and depression. (R. 20.) She found that Mr. Jessee’s
alleged diabetic retinopathy and hearing loss were not severe impairments. She also
found that he had a non-severe impairment of substance abuse. At step three, the ALJ
found that Mr. Jessee’s impairments do not meet or medically equal any of the
conditions in the listing of impairments.
For the purposes of steps four and five, the ALJ determined Mr. Jessee’s residual
functional capacity. She found that he can perform light-level work with the following
non-exertional restrictions: occasional exposure to fumes, odors, dusts, or gases;
occasional reaching overhead and in all dimensions with his right arm; simple, routine
tasks; and simple work-related decisions. At step four, she found that this RFC
prevents the performance of any of Mr. Jessee’s past relevant work. At step five, the
ALJ relied on the testimony of the vocational expert to find that, given Mr. Jessee’s RFC,
age, education, and skills, there is a significant number of jobs that he can perform in
the national economy and, therefore, he is not disabled.
After the Commissioner’s Appeals Council denied Mr. Jessee’s request for
review, the ALJ’s decision became the final decision of the Commissioner on his claim.
He brought the present suit for judicial review.
Mr. Jessee argues two errors: first, the ALJ failed to consider the Commissioner’s
findings on his previous application for benefits and, second, the ALJ failed to consider
all of his severe and non-severe impairments at step three.
On July 11, 2011, an ALJ (the “2011 ALJ”) denied Mr. Jessee’s 2009 application for
disability-insurance and supplemental-security-income benefits. The 2011 ALJ’s
decision became the Commissioner’s final decision on those previous claims when Mr.
Jessee did not seek judicial review. As did the present ALJ, the 2011 ALJ found that Mr.
Jessee had severe impairments of hypertension, diabetes, C.O.P.D., lower legs/feet
neuropathy, obesity, and depression. (R. 20, 114.) The 2011 ALJ found additional
severe impairments of congestive heart failure, osteoarthritis of the bilateral knees,
obstructive sleep apnea, and anxiety, which the present ALJ did not find or discuss.
The 2011 ALJ also found moderate bilateral hearing loss as a severe impairment but the
present ALJ specifically found that Mr. Jessee’s alleged hearing loss was not a severe
impairment. Finally, the present ALJ found that Mr. Jessee had severe impairments of
coronary artery disease, history of myocardial infarction, peripheral edema,
hyperlipidemia, and right shoulder impairments (rotator cuff tendinopathy and tear of
the anterior superior labrum, and osteoarthritis), none of which was found by the 2011
ALJ to constitute impairments, severe or non-severe. Thus, the Commissioner found in
2011 that Mr. Jessee had severe impairments of congestive heart failure, osteoarthritis of
the bilateral knees, obstructive sleep apnea, and anxiety but the present ALJ did not
find these conditions to exist as either severe or non-severe impairments and did not
discuss them at all.
The 2011 ALJ also found that Mr. Jessee could perform sedentary level jobs but
with certain non-exertional restrictions, including postural limits on kneeling, crawling,
balancing, and climbing. (R. 119.) The present ALJ found that Mr. Jessee could perform
at the higher light level of work with no postural restrictions. (R. 23.)
1. ALJ’s failure to consider findings on previous application.
Mr. Jessee argues that the present ALJ’s failure to consider and give proper
weight to the 2011 findings on his previous application rendered his decision erroneous
in three ways. First, the ALJ breached his duty to fully and fairly develop the record
when he failed to include and consider the evidence from the first claim regarding the
four impairments that were found to be severe in 2011 but not now: obstructive sleep
apnea, osteoarthritis of the knees, congestive heart failure, and anxiety. Second,
because the present ALJ failed to give binding, preclusive effect to the 2011 ALJ’s
findings, the present ALJ failed to build an accurate and logical bridge from the 2011
findings and his own findings. Third, Mr. Jessee argues that the present ALJ erred in
his step-three analysis by failing to consider the additional severe impairments found
by the 2011 ALJ.
In short, Mr. Jessee argues that the present ALJ’s findings that Mr. Jessee can
perform light level work, has no postural limitations, and does not have the severe
impairments that he was found to have in 2011 are not supported by substantial
evidence because the ALJ failed to consider and address the evidence and findings from
the previous claim.
a. Failure to develop the record. Mr. Jessee argues that the Commissioner’s
internal operating rules required the ALJ to add the evidence from his previous
application to the present record and to consider and address the 2011 findings. He
cites sections I-2-1-13(B)(1) and I-2-1-13(B)(2) of the Social Security Administration’s
Hearings, Appeals and Litigation Law manual (“HALLEX”), which instructs the
Commissioner’s ALJs and Hearings Office staff of the circumstances when
consideration of evidence in a prior claim file is required, may be necessary, or is not
The courts of appeals are split on the question whether the HALLEX creates
enforceable rights, see Davenport v. Astrue, 417 Fed.Appx. 544, 547, 2011 WL 1196274, *3
(7th Cir. 2011), and the Court of Appeals for the Seventh Circuit has yet to rule on the
issue, id.; Dean v. Colvin, 585 Fed.Appx. 904 (7th Cir. 2014); Cromer v. Apfel, 234 F.3d 1272
(table), 2000 WL 1544778 (7th Cir. 2000). The better construction is that, because the
instructions in the HALLEX have not been formally promulgated as rules or
regulations, they are not legally enforceable by claimants against the Commissioner.
Combs v. Berryhill, No. 1:16-cv-2386-JMS-TAB, 2017 WL 2728619,*4 (S.D. Ind., June 26,
2017); Blevins-Moore v. Barnhart, No. 1:03-cv-13, 2003 WL 21919191, *3-4 (N.D. Ind., July
30, 2003). See Schweiker v. Hansen, 450 U.S. 785, 789 (1981) (per curiam) (the SSA’s
internal Programs Operations Manual System (“POMS”) does not have legal force);
Parker for Lamon v. Sullivan, 891 F.2d 185, 190 (7th Cir. 1989) (same); Gilpin v. Astrue, No.
1:11-cv-204-SML-SEB, 2012 WL 896359, *1 n. 3 (S.D. Ind., March 15, 2012) (same). The
Court concludes that an ALJ’s failure to follow instructions in the HALLEX does not
show reversible error.
Aside from the HALLEX instructions, Mr. Jessee argues that the evidence from
his prior claim should have been included in the record and the 2011 findings should
have been considered because they were relevant to his present claim. However, he
only asserts that the prior record (specifically, the evidence and findings relating to the
2011 findings of sleep apnea, congestive heart failure, osteoarthritis of the knees, and
anxiety as severe impairments) “would have both established a longitudinal medical
record, but would have also made a difference in establishing whether disability is
present in the current claim and whether the non-degenerative conditions had
improved.” Plaintiff’s Brief in Support of Judicial Review [doc. 21] (“Brief in Support”),
at 12-13. However, he does not show how a longitudinal record of which conditions
would have made a difference in establishing a disability for the relevant period at issue
in his present 2014 application. The Court will not undertake that analysis on its own.
Mr. Jessee also argues that the record on his prior claim was relevant because his
present claim raised possible issues of reopening his prior application and res judicata
from the decision on that application. Mr. Jessee does not assert or cite any request to
reopen his prior claim and the Court has found no such request in the record, including
during his hearing. He was represented by counsel during the entire administrative
process, including at the hearing, where counsel conducted most of the questioning of
Mr. Jessee and had an opportunity to address the ALJ.
Mr. Jessee argues that, because the 2011 ALJ’s decision is res judicata for the
period from his alleged 2002 onset date to the 2011 denial of his claim, 42 U.S.C. §
405(h), the present ALJ was required to accept that Mr. Jessee has all of the severe
impairments found in that decision, that he is limited to sedentary work, and that he
has postural restrictions, and the ALJ was required to investigate the current status of
those impairments. However, the Commissioner has declared her policy that, except
for claims pending in the Fourth, Sixth, and Ninth Circuits, subsequent disability
applications for unadjudicated time periods receive independent determinations.
Acquiescence Rulings 00-1(4), 98-4(6), and 97-4(9). The Seventh Circuit also has held
that subsequent determinations for different time periods are independent and that
previous decisions are irrelevant. Rucker v. Chater, 92 F.3d 492 (7th Cir. 1996); Reynolds
v. Bowen, 844 F.2d 451, 453-54 (7th Cir. 1988).
Therefore, any res judicata effect that the 2011 decision has is limited to the time
period ending on the date of that decision. Because Mr. Jessee filed his current
application for S.S.I. benefits on February 18, 2014, he would be eligible for benefits only
beginning the month after he filed his application. 20 C.F.R. §§ 416.200 and 416.330(a).
That his current application asserted the same onset date as his first applications, did
not require, or allow, the present ALJ to revisit Mr. Jessee’s disability before 2011 or to
determine whether he was disabled before March 2014.
Mr. Jessee has not shown that the ALJ erred by not including in the record or
considering the evidence or findings from Mr. Jessee’s prior applications.
b. Failure to build a bridge between the 2011 and 2016 decisions. This iteration
of Mr. Jessee’s argument is based on the same foundation as is his first: the ALJ was
bound by the 2011 ALJ’s findings and those findings affect the determination of Mr.
Jessee’s present claim for benefits. Here, Mr. Jessee assigns as error the ALJ’s failure to
logically connect the 2011 findings to his own but the discussion above resolves this
argument as well. Because the determination of Mr. Jessee’s 2014 claim for benefits is
independent of the determination of his 2009 claim, the ALJ was not required to
logically connect the rationales of the two decisions. The 2011 decision on Mr. Jessee’s
2009 claims is res judicata and binding only as far as the time period between 2009 and
2011. Mr. Jessee’s 2014 claim for benefits was based on new allegations and new
evidence; he did not ask that the prior determination be reopened; he declared at the
hearing, through his experienced disability counsel, that the administrative record,
which did not include the record from his prior claims, was complete, (R. 80-81, 107 (no
objection to ALJ’s declaring records and testimony complete)); and he did not request,
during any part of the administrative process, to reopen the 2011 decision or to include
the 2011 record into the present record. An ALJ is entitled to assume that a claimant
represented by counsel is making his best case for benefits. Skinner v. Astrue, 478 F.3d
836, 842 (7th Cir. 2007).
Mr. Jessee has not shown that the ALJ committed reversible error by not logically
connecting the 2011 findings to his own.
c. Failure to consider at step three the severe and non-severe impairments
found by the 2011 ALJ. The above discussion resolves this argument as well. Because
the determination of Mr. Jessee’s current claim is independent of the determination of
his previous claims, the present ALJ was not required to address or consider the 2011
ALJ’s findings, including the identification of severe and non-severe impairments. The
ALJ did not err.
2. The ALJ’s failure to consider all severe and non-severe impairments at step
Mr. Jessee makes an independent argument that, regardless of the 2011 ALJ’s
findings, the present ALJ failed to consider at step three all of Mr. Jessee’s severe and
non-severe impairments that are supported in the present record or to articulate any
rationale why the conditions do not constitute impairments. Brief in Support, at 18-19.
He contends that the ALJ failed to consider the record evidence of his anxiety, dythemic
disorder, rule-out panic disorder with agoraphobia, borderline intelligence, congestive
heart failure, tachycardia, sleep apnea, bilateral osteoarthritis of the knees, and chronic
back pain, and he provides many citations to the record where complaints and/or
diagnoses of these conditions appear. Id., at 19. Surprisingly, the Commissioner
ignores this argument; she addresses only the argument that the ALJ failed to consider
the impairments found by the 2011 ALJ in his step-three analysis. While the Court
notes references to at least some of these conditions in the ALJ’s decision, it is not
inclined to review whether the ALJ adequately considered all of Mr. Jessee’s
impairments at step three without an argument and showing by the Commissioner. In
this instance, the Court will assume that the Commissioner, represented by counsel,
made her best case in support of the ALJ’s decision and that she does not contest Mr.
Therefore, the Commissioner’s decision denying Mr. Jessee’s claim for S.S.I.
benefits will be reversed and the claim will be remanded for reconsideration of Mr.
Jessee’s impairments at step three. In all other respects, the Commissioner’s decision is
SO ORDERED this date: 2/9/2018
SARAH EVANS BARKER, JUDGE
United States District Court
Southern District of Indiana
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