Blevins v. SSA
MEMORANDUM OPINION AND ORDER; 1)Pla's 9 Motion for Summary Judgment is granted in part as to Pla's request for a reversal of the Commissioner's decision and denied in part as to her request for a court ordered award of benefits; 2)Def's 10 Motion for Summary Judgment is denied; 3)The administrative decision of the Commissioner is REVERSED and REMANDED for further clarification consistent with this opinion; 4)A separate Judgment reversing and remanding this matter will be entered contemporaneously herewith. Signed by Judge David L. Bunning on 731/2012. (LST)cc: COR Modified to change file date on 8/1/2012 (LST).
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CIVIL ACTION NO. 11-74-DLB
MEMORANDUM OPINION AND ORDER
MICHAEL J. ASTRUE, Commissioner
SOCIAL SECURITY ADMINISTRATION
* * * * * * * * * *
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review
of an administrative decision of the Commissioner of Social Security. The Court, having
reviewed the record and the parties’ dispositive motions, reverses and remands the
Commissioner’s decision for further clarification.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Plaintiff Lisa A. Blevins filed an application for supplemental security income (SSI)
benefits on May 22, 2006. (Tr. 162-68). At the time of filing, Plaintiff was 38 years old and
alleged a disability onset date of May 16, 2002. (Tr. 162). Plaintiff asserts that she is
disabled due to her “[m]anic depression, anxiety, split personality, [and] migraines.” (Tr.
Plaintiff’s claim was denied initially on August 3, 2006 (Tr. 106), and upon
reconsideration on December 5, 2006 (Tr. 107). At Plaintiff’s request, an administrative
hearing was conducted on August 18, 2008, by Administrative Law Judge (“ALJ”) Ronald
M. Kayser. (Tr. 63-94, 134-35). On December 30, 2008, the ALJ determined that Plaintiff
was not disabled and therefore not entitled to SSI payments. (Tr. 49-62). This decision
became the final decision of the Commissioner when the Appeals Council denied Plaintiff’s
request for review on February 18, 2011. (Tr. 1-6).
Plaintiff’s May 22, 2006 application is her second for SSI benefits. Plaintiff received
a prior fully favorable decision from an Administrative Law Judge on August 4, 2004 due
to bipolar disorder, with a disability onset date of May 16, 2002. (Tr. 97-105). However,
Plaintiff’s benefits ceased in May 2005 due to her incarceration. (Tr. 110-13). Upon her
release in May 2006, Plaintiff filed a new application for benefits.
After ALJ Kayser’s unfavorable decision relative to her second application for
benefits, Plaintiff filed the instant action on April 19, 2011. (Doc. # 1). The matter has
culminated in cross-motions for summary judgment (Docs. # 9, 10), which are now ripe for
Overview of the Process
Judicial review of the Commissioner’s decision is restricted to determining whether
it is supported by substantial evidence and was made pursuant to proper legal standards.
See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “Substantial evidence” is
defined as “more than a scintilla of evidence but less than a preponderance; it is such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Cutlip v. Sec’y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make
credibility determinations. Id. Rather, we are to affirm the Commissioner’s decision,
provided it is supported by substantial evidence, even if we might have decided the case
differently. Her v. Comm’r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). If supported
by substantial evidence, the Commissioner’s findings must be affirmed, even if there is
evidence favoring Plaintiff’s side. Listenbee v. Sec’y of Health & Human Servs., 846 F.2d
345, 349 (6th Cir. 1988). Similarly, an administrative decision is not subject to reversal
merely because substantial evidence would have supported the opposite conclusion.
Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996).
The ALJ, in determining disability, conducts a five-step analysis. Step 1 considers
whether the claimant still performs substantial gainful activity; Step 2, whether any of the
claimant’s impairments, alone or in combination, are “severe”; Step 3, whether the
impairments meet or equal a listing in the Listing of Impairments; Step 4, whether the
claimant can still perform her past relevant work; and Step 5, whether a significant number
of other jobs exist in the national economy which the claimant can perform. As to the last
step, the burden of proof shifts from the claimant to the Commissioner to identify “jobs in
the economy that accommodate [Plaintiff’s] residual functional capacity.” See Jones v.
Comm’r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003); see also Preslar v. Sec’y of Health
& Human Servs., 14 F.3d 1107, 1110 (6th Cir. 1994).
The ALJ’s Determination
In this case, ALJ Kayser considered the time period from May 22, 2006, the filing
date of the claimant’s current application, through the date of his unfavorable decision. (Tr.
52). At Step 1, the ALJ found that Plaintiff has not engaged in substantial gainful activity
since May 22, 2006, the date on which the application was filed. (Tr. 54). At Step 2, the
ALJ found that Plaintiff had the following severe impairments: bi-polar disorder and
polysubstance abuse (tetrahydrocannabinol). (Id.). At Step 3, the ALJ found that Plaintiff
did not have an impairment or combination of impairments that meets or medically equals
one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Tr. 55); see
20 C.F.R. §§ 416.925 and 416.926.
At Step 4, the ALJ found that Plaintiff possessed the residual functional capacity
(RFC) to perform a full range of work at all exertional levels, with some moderate limitations
due to her mental impairments. (Tr. 57). In light of these impairments, Plaintiff would have
“moderate limitations in her ability to carry out detailed instructions, maintain attention and
concentration for extended periods, to interact appropriately with the general public, and
respond appropriately to changes in the work setting.” (Id.). However, the ALJ found that
Plaintiff “retains the basic mental demands of unskilled work to include the ability to
understand, carryout, and remember simple instructions; make adjustments commensurate
with the functions of unskilled work; respond appropriately to supervisors, co-workers, and
work situations; and to deal with changes in a routine work setting.” (Id.). The ALJ found
that Plaintiff would work best in a low stress, repetitive, non-production quota position that
is not in direct contact with the general public. (Id.). Based upon these findings, ALJ
Kayser found that Plaintiff is able to perform her past relevant work as a short order cook.
Although the ALJ found that Plaintiff is capable of performing her past relevant work
in Step 4, he continued to provide alternative findings for Step 5 of the sequential
evaluation process. (Tr. 61). At Step 5, the ALJ found that Plaintiff was born on August
27, 1967 and that she was 38 years old, which is defined as a “younger person,” on the
date the application was filed. (Tr. 61); see 20 C.F.R. § 416.963. The ALJ also found that
Plaintiff has at least a high school education and is able to communicate in English. (Tr.
61); see 20 C.F.R. § 416.964. Considering the Plaintiff’s age, education, work experience
and residual functional capacity, the ALJ determined that jobs exist in significant numbers
in the national economy that Plaintiff can perform. (Tr. 61). ALJ Kayser therefore
concluded that Plaintiff has not been under a disability within the meaning of the Social
Security Act since the date Plaintiff filed the current application for disability on May 22,
2006 through the date of the decision. (Tr. 62).
Plaintiff advances four arguments on appeal. First, Plaintiff contends that the ALJ
should have considered the previous favorable decision. Second, Plaintiff argues that the
ALJ improperly assessed her severe impairments. Third, Plaintiff asserts that the ALJ
failed to consider the record as a whole. Finally, Plaintiff contends that the ALJ improperly
assessed her daily living activities. Finding that remand is warranted on Plaintiff’s first
objection, the Court need not address the remaining arguments at this time.
In Accordance with Drummond, the ALJ Was Bound by the Findings in
the Prior ALJ Decision Absent New and Material Evidence of a Change
in Plaintiff’s Condition
Plaintiff argues that the ALJ should have considered the prior fully favorable
disability determination in his assessment. In support, Plaintiff asserts that the principles
of res judicata apply and that all three requisite elements exist here: (1) a previous
determination or decision has been made under the same subpart and with respect to the
same party; 2) the previous determination or decision was based on the same facts and
issues; and 3) the previous determination or decision has become final by administrative
or judicial action. (Doc. # 9 at 6) (citing 20 C.F.R. §§ 404.957(c)(1) and 416.1457(c)(1)).
Plaintiff contends that substantial evidence does not exist in the record to demonstrate that
her condition improved since the prior ruling, and thus ALJ Kayser was bound by the
findings made by the prior ALJ. (Doc. # 9 at 7). This argument is well taken insofar as the
ALJ was required, upon Plaintiff’s second application for benefits, to consider whether
newly introduced evidence demonstrates an improvement in her condition since the
previous disability determination.
The Sixth Circuit Court of Appeals established in Drummond v. Commissioner, 126
F.3d 837 (6th Cir. 1997) “that the principles of res judicata can be applied against the
Commissioner.” Id. at 842. Accordingly, “[w]hen the Commissioner has made a final
decision concerning a claimant’s entitlement to benefits, the Commissioner is bound by this
determination absent changed circumstances.” Id. Furthermore, “[a]bsent evidence of an
improvement in a claimant’s condition, a subsequent ALJ is bound by the findings of a
previous ALJ.” Drummond, 126 F.3d at 842 (citing Lively v. Sec’y of Health & Human
Servs., 820 F.2d 1391 (4th Cir. 1987)); see also Dennard v. Sec’y of Health & Human
Servs., 907 F.2d 598 (6th Cir. 1990) (per curiam) (holding that a second ALJ was precluded
from reconsidering whether plaintiff could perform his past relevant work). In Drummond,
the Sixth Circuit held, through the application of res judicata, that the Commissioner was
bound by its prior determination that the claimant had the residual functional capacity to
perform sedentary work because “substantial evidence was not introduced that [claimant’s]
condition improved significantly between the two hearing dates.” Id. at 843. Thus,
considering the claimant’s age at the time of her second application and limitation to
sedentary work, the Sixth Circuit found her eligible for benefits. Id.
In light of the holding in Drummond, the Commissioner issued an Acquiescence
Ruling directing states within the Sixth Circuit to follow Drummond by applying res judicata
to a prior assessment of a claimant’s residual functional capacity as well as other findings
required in the sequential evaluation process for determining disability. This Ruling
When adjudicating a subsequent disability claim with an unadjudicated period
arising under the same title of the [Social Security] Act as the prior claim,
adjudicators must adopt such a finding from the final decision by an ALJ or
the Appeals Council on the prior claim in determining whether the claimant
is disabled with respect to the unadjudicated period unless there is new and
material evidence relating to such a finding or there has been a change in the
law, regulations or rulings affecting the finding or the method for arriving at
SSAR 98-4(6), 63 Fed. Reg. 29771-01 (June 1, 1998).1 The Sixth Circuit held that “[t]he
burden is on the Commissioner to prove changed circumstances and therefore escape the
principles of res judicata.” Drummond, 126 F.3d at 843.
Here, Plaintiff asserts that administrative res judicata required ALJ Kayser to accept
the 2004 finding of ALJ Gerard that she met the requirements of Listing 12.04 because
there was no substantial evidence of an improvement in her condition. (Doc. # 9 at 6-7).
The Commissioner, however, contends that the Drummond rule is inapplicable to the ALJ’s
2004 findings because her benefits were subsequently terminated due to her extended
incarceration. In May 2005, upon the first full month of incarceration, Plaintiff’s SSI benefits
This ruling recognizes that the holding in Drummond differs from Social Security Administration
(“SSA”) policy. Although SSA policy permits application of administrative res judicata, “if the subsequent claim
involves deciding whether the claimant is disabled during a period that was not adjudicated in the final
determination or decision on the prior claim, SSA considers the issue of disability with respect to the
unadjudicated period to be a new issue that prevents the application of administrative res judicata.” SSAR
98-4(6), 63 Fed. Reg. 29771-01 (June 1, 1998). Addressing how the Drummond decision will be applied, the
SSA clarified that the holding of that decision is limited in its application to cases involving claimants who
reside within the Sixth Circuit.
were suspended. (Tr. 110-13); 20 C.F.R. § 416.1325. The Social Security Act excludes
from SSI eligibility “anyone who is an ‘inmate of a public institution.’” Schweiker v. Wilson,
450 U.S. 221, 224 (1981) (quoting 42 U.S.C. § 1382(e)(1)(A)). Thus, residents of public
institutions may not receive SSI benefits. 20 C.F.R. § 416.211. Suspended benefits,
however, are resumed “effective with the earliest day of the month in which a recipient is
no longer a resident of a public institution.” 20 C.F.R. § 416.1325.
Regardless of the reason for suspension, an individual’s benefits are terminated
“following 12 consecutive months of benefit suspension.” 20 C.F.R. § 416.1335. In the
present case, Plaintiff’s SSI benefits did not automatically resume following her release
because her incarceration lasted approximately thirteen months.
claimant’s benefits are terminated, as opposed to merely suspended, she must submit a
new application for benefits. See Program Operations Manual System, SI 02310.093(A)(1)
and SI 02301.205(C) (manual setting forth policy and procedure regarding when benefits
may be reinstated and when a new application is required, such as after a termination).
However, the fact that Plaintiff’s SSI benefits were not entitled to automatic resumption and
therefore required a new application, does not necessarily mean that ALJ Kayser was free
to disregard the findings made in conjunction with the prior decision absent a change in
The Commissioner cites Messer v. Astrue, No. 09-342-DLB, 2010 WL 4791956 (E.D. Ky. Nov. 18,
2010) for the proposition that “a claimant’s benefits are not entitled to an automatic resumption of benefits after
such benefits are terminated due to incarceration.” (Doc. # 10 at 6) (citing Messer, at *3-4). The fact that a
claimant is not entitled to an automatic resumption after the termination of benefits is not in dispute. However,
to further assert that such termination necessarily precludes the application of res judicata goes beyond the
holding of Messer. Whether the Drummond rule applies after the termination of benefits due to incarceration
was not answered in Messer and was inapplicable to the facts presented therein. In Messer, there was an
intermediate disability determination, issued post-incarceration, to which the decision under review was bound
by res judicata to follow. Messer, at *5.
In contrast, in Hamblin v. Apfel, 7 F. App’x 449 (6th Cir. 2001) (unpublished), the Sixth Circuit
articulated a specific subset of cases where benefits have been terminated to which the Drummond rule is not
In the 2004 fully favorable decision, ALJ David A. Gerard found that Plaintiff’s bipolar
disorder met the requirements of Listing 12.04 because the criteria of both paragraphs A
and B were satisfied.3 (Tr. 103). Explaining how this determination was reached, ALJ
Gerard stated his agreement with the testifying medical expert that Plaintiff’s condition
resulted in “marked restriction of activities of daily living, marked difficulties in maintaining
social functioning, deficiencies of concentration, persistence of pace, and had had more
than 3 episodes of decompensation in work or work-like situations.” (Tr. 104). In light of
Plaintiff’s credible hearing testimony and the medical evidence of record, ALJ Gerard did
applicable. The court in Hamblin addressed a 1996 amendment to the Social Security Act which provided that
“[a]n individual shall not be considered to be disabled for purposes of this title if alcoholism or drug addiction
would (but for this subparagraph) be a contributing factor material to the Commissioner’s determination that
the individual is disabled.” Hamblin, 7 F. App’x at 450 (quoting Pub. L. No. 104-121, 110 Stat. 847, § 105(b)(1)
(1996)). In light of this amendment, the Commissioner was instructed to contact all claimants who had
previously been awarded benefits under that section that their benefits would terminate. Such claimants were
“given the opportunity to reapply for SSI benefits with ‘a new medical determination.’” Id. (quoting Pub. L. No.
104-121, § 105(b)(C)). A new medical determination was appropriate because a materially contributing factor
in each affected claimant’s prior disability determination was no longer permitted to be considered in assessing
disability. Furthermore, the Sixth Circuit held that a “new” medical determination, as directed by Congress
to take place, “could not be made if earlier findings were accorded res judicata status.” Id. at 451. The
considerations which led the Sixth Circuit to hold that res judicata was not applicable under that set of
circumstances are not relevant here. The termination of benefits in the present case was a statutory response
to a twelve-consecutive-month suspension, and was not tied to Plaintiff’s condition nor any factors under
consideration in her initial disability assessment.
The required level of severity for 12.04 disorders is met when both paragraphs “A” and “B” criteria
are satisfied, or when both paragraphs “A” and “C” criteria are satisfied. ALJ Gerard based his determination
of disability on a finding that paragraphs A and B were satisfied, however ALJ Kayser found that the record
evidence failed to satisfy the requirements of paragraphs B or C. Paragraph “B” requires at least two of the
following: (1) marked restriction of activities of daily living; (2) marked difficulties in maintaining social
functioning; (3) marked difficulties in maintaining concentration, persistence or pace; or (4) repeated episodes
of decompensation, each of extended duration. 20 C.F.R. Part 404, Subpart P, Appendix 1, 12.04. Paragraph
“C” requires a “[m]edically documented history of a chronic affective disorder of at least two years’ duration
that has caused more than a minimal limitation of ability to do basic work activities, with symptoms or signs
currently attenuated by medication or psychosocial support,” in conjunction with one of the following:
(1) Repeated episodes of decompensation, each of extended duration; or (2) A residual
disease process that has resulted in such marginal adjustment that even a minimal increase
in mental demands or change in the environment would be predicted to cause the individual
to decompensate; or (3) Current history of one or more years’ inability to function outside a
highly supportive living arrangement, with an indication of continued need for such an
not grant weight to opinions of state agency psychologists that Plaintiff had only moderate
mental limitations. (Id.). In accordance with Drummond and Acquiescence Ruling 98-4(6),
the findings of ALJ Gerard in his 2004 decision would be binding on a subsequent SSI
claim involving an unadjudicated period absent an improvement in Plaintiff’s condition.
In the decision currently under review, ALJ Kayser considered the paragraph B
requirements and the relevant evidence of record, but found that Plaintiff’s mental condition
did not meet the criteria of Listing 12.04 for the unadjudicated period beginning with the
date the current application was filed.4 The ALJ found that Plaintiff had “mild restriction”
in activities of daily living, “moderate difficulties” in social functioning, “moderate difficulties”
with regard to concentration, persistence or pace, and that Plaintiff had experienced no
episodes of decompensation during the period of time in question. (Tr. 56-57). ALJ Kayser
based these findings on, inter alia, Plaintiff’s testimony at the August 18, 2008 hearing, the
July 2006 report of consultative examiner Dr. Robert Noelker, Ph.D. (Tr. 280-83), and the
August 2006 and November 2006 assessments by Dr. Ed Stodola, Ph.D. (Tr. 284-97, 298301) and Dr. Jan Jacobson, Ph.D. (Tr. 389-402, 403-06), respectively. The Commissioner
highlights specific portions of this new evidence that the ALJ considered in reaching his
findings on each of the section B requirements under Listing 12.04. Specifically, the
with respect to activities of daily living, Plaintiff’s August 2008 testimony
that she performs household chores and likes to keep busy, and the July
2006 report from Dr. Noelker that she was able to perform basic
with respect to social functioning, Plaintiff’s August 2008 testimony that
she hosts a church meeting at her house once a week, her testimony
ALJ Kayser also found that the record evidence failed to establish the presence of paragraph C
criteria. (Tr. 57).
that she has a boyfriend that she sees once a week, and Dr. Noelker’s
report that her social interactions were mildly to moderately impaired;
with respect to concentration, persistence, and pace, the ALJ’s
observation that Plaintiff maintained attention and concentration during
the hearing and Dr. Noelker’s report that Plaintiff’s ability to understand
and remember simple one or two-step instructions was mildly to
moderately impaired; and
with respect to episodes of decompensation, the absence of evidence of
any episodes of decompensation.
(Doc. # 10 at 7-8) (citing Tr. 56-57, 80-82, 282-83).
It is undisputed that considerable evidence has been introduced into the record since
the prior ALJ decision in 2004. However, it is not abundantly clear from a review of ALJ
Kayser’s decision whether he considered this new evidence to demonstrate that Plaintiff’s
condition has improved since the previous finding that she met Listing 12.04, as required
under Drummond, or whether he performed the sequential evaluation anew. It is not
enough that the ALJ relies on new evidence that post-dates the earlier decision to arrive
at his determination; the holding of Drummond requires that such new evidence
demonstrate “an improvement in a claimant’s condition.” Drummond, 126 F.3d at 842
(emphasis added). In an unpublished case regarding a cessation of benefits issue, the
Sixth Circuit held that “[b]ecause this is a case which requires a showing of changed
circumstances, a comparison between circumstances existing at the time of the prior
decision and circumstances existing at the time of the review is necessary.” Kennedy v.
Astrue, 247 F. App’x 761, 768 (6th Cir. 2007) (unpublished) (internal citations omitted). The
same reasoning is applicable here.
In the decision denying benefits, there is no mention of Drummond and, furthermore,
the language of the decision does not suggest that principles of administrative res judicata
were considered. Although the ALJ “considered the complete medical history consistent
with 20 CFR 416.912(d)” and based his determination primarily upon the new evidence,
there is no indication that he considered the new evidence in light of that previously
considered in rendering the 2004 decision or that any comparison was made.
Castrovinci v. Astrue, No. , 2012 WL 928736, at *6-7 (N.D. Ohio Mar. 19, 2012) (affirming
an ALJ’s decision where Drummond was not explicitly referred to, but the language of the
decision indicated that consideration was given to the prior ALJ’s decision and RFC in
addition to medical evidence post-dating the prior decision in evaluating the claimant’s
The Court is mindful of the substantial deference with which conclusions of the
Commissioner are reviewed, and that there may be sufficient evidence in the record to
demonstrate an improvement in Plaintiff’s condition. Upon consideration of the evidence
introduced since Plaintiff’s application filing date, the ALJ has issued a thorough decision
explaining his findings at each step of the sequential evaluation leading to his ultimate
conclusion that Plaintiff was not disabled as of her most recent filing date. However, with
no reference to Drummond, or specific comparison to the evidence considered by the prior
ALJ in reaching his findings, it cannot simply be assumed that in the course of his
assessment ALJ Kayser found that Plaintiff’s condition had indeed improved. The Court
will not speculate as to the exact nature of the analysis conducted by the ALJ and any
unstated findings, but rather will remand the action to provide the opportunity to specifically
address his findings in light of the instruction of Drummond and Acquiescence Ruling 984(6). See Haddix v. Astrue, No. 10-30-ART, 2010 WL 4683766 (E.D. Ky. Nov. 12, 2010)
(remanding for clarification as to which of three possible analytic paths were taken by the
ALJ in reaching his determination). Plaintiff has advanced several additional arguments
on appeal, however the Court will reserve judgment on Plaintiff’s remaining objections
pending clarification of the ALJ’s analysis.
For the reasons stated herein, the Court concludes that this case must be remanded
so that the ALJ may provide further clarification as to whether the Commissioner has met
his burden to demonstrate sufficient improvement of Plaintiff’s condition as set forth in
Drummond and thereby avoid application of the principles of administrative res judicata.
IT IS ORDERED as follows:
Plaintiff’s Motion for Summary Judgment (Doc. # 9) is hereby granted in part
as to Plaintiff’s request for a reversal of the Commissioner’s decision, and
denied in part as to her request for a court ordered award of benefits;
Defendant’s motion for summary judgment (Doc. # 10) is hereby denied;
The administrative decision of the Commissioner is hereby REVERSED and
REMANDED for further clarification consistent with this opinion; and
A separate Judgment reversing and remanding this matter will be entered
This 31st day of July 2012.
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