Bailey v. SSA
Filing
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MEMORANDUM OPINION & ORDER: (1) Plaintiff's motion for summary judgment (Doc. # 8 ) is hereby DENIED; (2) Defendant's motion for summary judgment (Doc. # 9 ) is hereby DENIED; (3) The administrative decision of Defendant is REVERSED and REMANDED for further proceedings consistent with this opinion. Signed by Judge David L. Bunning on 9/26/11.(SYD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
AT LONDON
CIVIL ACTION NO. 10-262-DLB
GARY BAILEY, on behalf of deceased,
PEGGY A. BAILEY
vs.
PLAINTIFF
MEMORANDUM OPINION & ORDER
MICHAEL J. ASTRUE, Commissioner
SOCIAL SECURITY ADMINISTRATION
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DEFENDANT
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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 proceedings consistent with this opinion.
I. FACTUAL AND PROCEDURAL BACKGROUND
On December 8, 2006, ALJ John Barker considered Claimant Peggy Bailey’s first
Title II application for a period of disability and disability insurance benefits (DIB), as well
as Claimant’s Title XVI application for supplemental security income (SSI). (Tr. 75).
Claimant alleged disability beginning June 18, 2004 in each application. (Id.). ALJ Barker
found that Claimant’s severe impairments included a history of peripheral vascular disease
and aortic arteriosclerotic disease, hypertension, degenerative joint disease of the back,
and clinical depression. (Tr. 77). However, ALJ Barker concluded that Claimant had the
residual functional capacity (“RFC”) to perform medium exertional activity and, ultimately,
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was not under a “disability” as defined in the Social Security Act. (Tr. 83).
Just over a year after ALJ Barker’s decision, on January 25, 2008, Claimant filed a
subsequent Title II application for a period of disability and DIB, again alleging that her
disability began on June 18, 2004. (Tr. 89, 90; 117-124). Claimant reiterated many of her
same complaints – degenerative joint disease, depression, anxiety, and hypertension – and
also included multiple sclerosis, among others. (Tr. 150). Her application was denied both
initially and on reconsideration. (Tr. 89-94, 99-101). On November 6, 2008, Claimant filed
a written request for a hearing, but passed away on March 13, 2009, prior to the hearing.
(Tr. 102-03; 133). Claimant’s husband, Gary Bailey, was substituted as the claimant in this
matter. He appeared and testified at the hearing held on August 13, 2009. (Tr. 31-55). On
December 21, 2009, ALJ Frank Letchworth issued a partially unfavorable decision, finding
that Claimant was not disabled prior to September 13, 2008, and, therefore not entitled to
a period of disability or DIB payments prior to that time. (Tr. 16-26).
At the outset of ALJ Letchworth’s opinion, he noted that Claimant’s representative
requested to reopen Judge Barker’s 2006 decision, alleging that Claimant was later
diagnosed with multiple sclerosis. (Tr. 16). However, he stated that the evidentiary record
failed to confirm the diagnosis and, thus, concluded that “no new or material evidence
submitted . . . warrant[ed] reopening . . . the prior application and accordingly decline[d] to
reopen the application or revise the prior decision.” (Id.). ALJ Letchworth also stated that
he intended to apply the administrative res judicata principles as set forth in Drummond v.
Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997). (Id.) (“I must still apply the
principles as set forth in Drummond v. Commissioner of Social Security.” (citation omitted)).
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In his findings of fact and conclusions of law, ALJ Letchworth began by discussing
the testimony of Claimant’s representative at the administrative hearing.
The
representative testified that Claimant’s symptoms prior to December 2006 included fatigue,
vision problems, confusion and memory loss. (Tr. 19). The representative also testified
about Claimant’s condition after 2006, mentioning that she suffered from high blood
pressure and cholesterol, back pain, neuropathy, muscle spasms, anxiety and depression.
(Id.).
After discussing the representative’s testimony, ALJ Letchworth’s next paragraph
stated that he “reviewed the documentary evidence of record,” including ALJ Barker’s 2006
decision, but left it unclear whether he reviewed specific evidence considered by ALJ
Barker or whether he solely reviewed the findings made by ALJ Barker. (Id.). He then
paraphrased ALJ Barker’s findings of fact, but wrote, “[h]owever, [ALJ Barker] found that
the claimant retained the functional capacity to perform medium work.” (Id.).
Next, ALJ Barker considered Claimant’s objective evidence and subjective
complaints subsequent to the 2006 decision. Claimant reported that she was experiencing
confusion, dizziness and headaches, which physicians thought may have been caused by
possible multiple sclerosis. (Tr. 20). ALJ Letchworth’s decision considered multiple
reports, including a report by neurologist Dr. Craig Knox and a narrative prepared by her
primary care giver, Dr. Charles Grisby. However, ALJ Letchworth was unable to conclude
that Claimant suffered from multiple sclerosis. (Tr. 20-21, 23).
Additionally, ALJ Letchworth found that Claimant’s mental health record was
“essentially silent with respect to clinical findings, . . . , [and] there [was] no evidence of any
formal mental health treatment since the December 2006 hearing decision,” suggesting that
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her mental health condition had not changed since December 2006. (Tr. 21). Despite an
absence of mental health treatment post-2006, ALJ Letchworth oddly stated,
“[n]onetheless, I have resolved the matter in light most favorable to the claimant and
afforded appropriate psychological limitations.” (Tr. 23).
Further, ALJ Letchworth found that post-2006 claims of coronary artery disease and
other circulatory and vascular conditions were not corroborated by objective evidence.
(Id.). However, Claimant passed away on March 13, 2009 from a heart attack, which lead
ALJ Letchworth to find that Claimant’s coronary condition had progressed. After discussing
each of Claimant’s new complaints and citing ALJ Barker’s 2006 finding that Claimant could
perform medium work, ALJ Letchworth concluded that he “reduced [Claimaint’s] capacity
to light work prior to September 13, 2008.” (Tr. 24) (emphasis added).
Claimant’s representative requested review of this decision (Tr. 10), which was
granted. However, the Appeals Council dismissed the request for a hearing for the period
from June 18, 2004 through December 8, 2006, citing the doctrine of res judicata. (Tr. 4).
On July 23, 2010, the Appeals Council adopted ALJ Letchworth’s decision for the period
beginning December 9, 2006 through March 13, 2009, and affirmed the ALJ’s decision that
Claimant was not disabled prior to September 13, 2008. (Tr. 1-5). On September 21,
2010, Claimant’s representative (referred to hereinafter as “Plaintiff”) filed the instant action.
(Doc. # 1). The matter has culminated in cross-motions for summary judgment, which are
now ripe for adjudication. (Docs. # 8, 9). Additionally, the Court ordered supplemental
briefing concerning the applicability of Drummond v. Commissioner of Social Security, 126
F.3d 837 (6th Cir. 1994), which both parties have also submitted. (Docs. # 11, 12, 13).
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II. DISCUSSION
When considering a claimant’s second application for disability benefits after the
Social Security Administration denied a previous application, an ALJ may take one of three
analytic paths. Drummond, 126 F.3d at 842; Dennard v. Sec’y of Health and Human
Servs., 907 F.2d 598 (6th Cir. 1990); Haddix v. Astrue, No. 10-30-ART, 2010 WL 4683766,
at *1 (E.D. Ky. Nov. 12, 2010). It is imperative that the ALJ’s opinion clearly articulates
which path it followed. See Bailey v. Comm’r of Soc. Sec., No. 98-3061, 1999 WL 96920,
at *3 (6th Cir. Feb. 2, 1999); Haddix, 2010 WL 4683766, at *1. When analyzing one of the
three paths, “the rationale . . . must be written so that a clear picture of the case can be
obtained.” SSR 82-62, 1982 WL 31386, at *4. The rationale must be orderly and show
clearly how specific evidence leads to a conclusion. Id. Without such clarity, meaningful
judicial review is impossible.
First, the ALJ may find that a denial of benefits for one period precludes
consideration of a second application under the doctrine of administrative res judicata.
Drummond, 126 F.3d at 842 (“absent evidence of an improvement in a claimant’s condition,
a subsequent ALJ is bound by the findings of a previous ALJ.”); Brewster v. Barnhart, 145
F. App’x 542, 546 (6th Cir. 2005) (holding that factual findings made by a prior ALJ have
a preclusive effect on a subsequent ALJ when there are no changed circumstances). The
Sixth Circuit has held that an ALJ must apply res judicata to a second application if the
claimant fails to show that his or her circumstances have changed. Casey v. Sec. of Health
and Human Servs., 987 F.2d 1230, 1232-33 (6th Cir. 1993) (per curiam).
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Second, the ALJ may find evidence of changed circumstances, which permits the
ALJ to review evidence of the new period while leaving the ALJ’s decision for the earlier
period untouched. Drummond, 126 F.3d at 842-43 (“When the Commission has made a
final decision concerning a claimant’s entitlement to benefits, the Commission is bound by
this determination absent changed circumstances.”). However, the Sixth Circuit makes
clear that “the [ALJ] must prove changed circumstances and therefore escape the
principles of res judicata.” Id. As the Sixth Circuit held in an unpublished opinion, when
a case “requires a showing of changed circumstances . . . , a comparison between
circumstances existing at the time of the prior decision and the circumstances existing at
the time of the review is necessary.” Kennedy v. Astrue, No. 06-6582, 2007 WL 2669153,
at *7 (6th Cir. Sept. 7, 2007).
Third, the ALJ may find that new and material evidence of a claimant’s condition
during the first considered period warrants reopening and revising the prior opinion. 20
C.F.R. §§ 404.988 to .499, 416.1488 to 1489; Brewster, 145 F. App’x at 548 (“new and
material evidence can be good cause for reopening a claim”); Wheeler v. Secretary of
Health & Human Servs., No. 85-1757, 1986 WL 16116, at *1 (6th Cir. Aug. 8, 1986) (“Thus,
the ALJ’s determination that Plaintiff was not disabled on or before March 21, 1980 is
binding under the doctrine of res judicata, since there is no new and material evidence
warranting a reopening of the prior decision.”). In order to justify reopening the prior
decision, the Sixth Circuit makes clear that the new evidence must be relevant to the
claimant’s condition during the previous period. If the new evidence is solely indicative of
the claimant’s condition after the first decision, it does not justify reopening the prior
opinion. Coker v. Heckler, No. 85-1166, 1986 WL 16847, at *1 (6th Cir. Apr. 4, 1986)
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(upholding the Secretary’s decision not to consider an x-ray taken after a prior ALJ opinion
as new and material evidence of the claimant’s condition during the previously considered
time period). While ALJ Letchworth thoroughly reviewed Claimant’s medical history, it is
unclear which of the three paths he followed. He ultimately reduced Claimant’s residual
functional capacity to light work prior to September 13, 2008, after ALJ Barker determined
that she had the RFC to perform medium work in 2006. (Tr. 24). ALJ Letchworth stated
that he found no reason to reopen the prior application, which would seem to indicate that
any reduction in Claimant’s RFC was based on a finding of changed circumstances. (Tr.
16).
ALJ Letchworth could have reduced Claimant’s RFC by citing changed
circumstances in Claimant’s condition, allowing him to avoid the preclusive effect of the
2006 decision. See Drummond, 126 F.3d at 842-43. Plaintiff and Defendant support this
position. Plaintiff argues that the ALJ “appeared” to have found changed circumstances
based on the new evidence. (Doc. # 12). Defendant contends that the ALJ “implicitly”
found changed circumstances, particularly when the ALJ stated “. . . inasmuch as the
claimant passed away on March 13, 2009 from a heart attack, it is reasonable to find that
the claimant’s coronary condition did in fact progress.” (Tr. 24).
Although these explanations are plausible, it is unclear whether this was the basis
for the ALJ’s decision. The ALJ did consider new evidence at length, which would be
appropriate if he found changed circumstances. (Tr. 19-21). Additionally, it may have been
appropriate to find changed circumstances if Claimant’s coronary condition had progressed,
though this Court is not considering the merits of such a finding here. While both parties
argue that the ALJ did, in fact, implicitly find changed circumstances, that finding is far from
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self-evident. Instead, ALJ Letchworth’s sole indication that he found changed
circumstances is made only in passing and is buried at the end of a two-page overview of
his conclusions. (Tr. 24) (“However, inasmuch as the claimant passed away on March 13,
2009 from a heart attack, it is reasonable to find that the claimant’s coronary condition did
in fact progress.”). If ALJ Letchworth did find changed circumstances, he failed to clearly
articulate the rationale underlying his decision. See Hurst v. Sec’y of Health & Human
Serv., 753 F.2d 517, 519 (6th Cir. 1985). Any comparison between circumstances existing
at the time of the prior decision and the circumstances existing at the time of review, as
required by the Sixth Circuit, is vague and insufficient for this court to give meaningful
review. Kennedy, 2007 WL 2669153, at *7.
On the other hand, ALJ Letchworth may have chosen to reopen and revise the 2006
decision when he decided to “reduce[] her capacity to light work prior to September 13,
2008.” (Tr. 24). On the face of his opinion, it appears that he chose not to follow this path.
ALJ Letchworth clearly stated at the outset that “there has been no new or material
evidence submitted that warrant[ed] reopening the prior application.” (Tr. 16). He even
mentioned that the primary care giver’s narrative “undermine[d] the request to reopen the
December 2006 hearing.” (Tr. 21). However, if he found no justification for reopening the
prior application, principles of administrative res judicata require that he adopt the findings
and conclusions of ALJ Barker concerning Claimant’s condition from June 18, 2004 to
December 8, 2006. See, e.g. Brewster, 145 F. App’x at 546 (holding that the ALJ must
adopt the findings from a prior ALJ’s decision regarding the claimant’s past relevant work
if no new evidence was presented with the claimant’s second application).
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Instead, at least two places in ALJ Letchworth’s opinion seem to indicate that he
may have intended to revise ALJ Barker’s findings. First, he found no evidence of formal
treatment or clinical findings in regard to her mental health subsequent to the December
2006 decision. This would seem to indicate that ALJ Letchworth found that Claimant’s
mental health condition had not changed. Thus, administrative res judicata would require
ALJ Letchworth to adopt the findings of the prior decision in regard to Claimant’s mental
health. ALJ Letchworth seems to have disregarded res judicata when he proclaimed that
he “resolved the matter in the light most favorable to the claimant and afforded appropriate
psychological limitations.” (Tr. 23).
Second, ALJ Letchworth acknowledged ALJ Barker’s finding that Claimant had the
residual functional capacity to perform medium work, but after “resolv[ing] this issue in the
light most favorable to the claimant” he reduced her RFC to light work prior to September
13, 2008. (Tr. 24). This statement seems to indicate that he intended to reduce her RFC
for the entire time period between the alleged onset date of June 18, 2004 through
September 13, 2008, which is inconsistent with his statement that he “decline[d] to reopen
the application or revise the prior decision . . . .” (Tr. 16).
Plaintiff argues that the Social Security Administration’s ultimate decision was not
to open and revise the 2006 decision, shown by the Appeals Council’s denial of Plaintiff’s
request for a hearing concerning the period of June 18, 2004 through December 8, 2006.
(Doc. 12). If this is so, the difficulty in determining the ALJ’s rationale for modifying
Claimant’s RFC prior to September 13, 2008 remains. It is not clear that the ALJ found
changed circumstances such that administrative res judicata would not apply. Instead, it
appears that the ALJ may have applied res judicata to the first decision, but mistakenly
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conducted a de novo review of the evidence presented in the second application without
finding changed circumstances. See Haddix, 2010 WL 4683766, at *3. This would be a
misapplication of the principles of administrative res judicata as set forth in Drummond.
Haddix, 2010 WL 4683766, at *3.
III.
CONCLUSION
Without more clarity from the ALJ, it is impossible to give meaningful judicial review
to either party’s objections. The ALJ may choose one of three paths when considering a
second application for disability benefits, but he cannot walk two at the same time. If no
new and material facts are presented to warrant reopening the prior application, the ALJ
may find either that the first decision precludes review of the second application or that
changed circumstances warrant review of the new application. If the ALJ chooses the
latter, he must make some comparison between the claimant’s prior condition and new
condition to justify a finding of changed circumstances, and, ultimately, a new RFC.
Kennedy, 2007 WL 2669153, at *7. Regardless of the path the ALJ chooses, his opinion
must clearly articulate his rationale so that the court may give meaningful judicial review.
Because he has failed to do so, remand is warranted.
Accordingly, it is ORDERED as follows:
(1)
Plaintiff’s motion for summary judgment (Doc. # 8) is hereby DENIED;
(2)
Defendant’s motion for summary judgment (Doc. # 9) is hereby DENIED;
(3)
The administrative decision of Defendant is REVERSED and REMANDED
for further proceedings consistent with this opinion.
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This 26th day of September, 2011.
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