Wilson vs. SSA

Filing 26

MEMORANDUM OPINION & ORDER re 22 Motion for Summary Judgment; denying 25 Motion for Summary Judgment: (1) Plaintiff's Motion for Summary Judgment (D.E. 22) is GRANTED. (2) The Commissioner's Motion for Summary Judgment (D.E. 25) is DENIED. (3) JUDGMENT will be entered in favor of the Plaintiff by separate order. Signed by Magistrate Judge Hanly A. Ingram on 11/17/2022. (MM)cc: COR

Case: 6:21-cv-00168-HAI Doc #: 26 Filed: 11/17/22 Page: 1 of 7 - Page ID#: 641

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
LONDON
CONNIE J. WILSON,

)
)
Plaintiff,
)
No. 6:21-CV-168-HAI
)
v.
)
MEMORANDUM OPINION
)
& ORDER
KILOLO KIJAKAZI,
)
Acting Commissioner of Social Security,
)
)
Defendant.
)
)
*** *** *** ***
Claimant Connie J. Wilson brought this action under 42 U.S.C. §§ 405(g) and 1383(c) on
October 1, 2021, to obtain judicial review of an unfavorable administrative decision. D.E. 1.
The parties consented to the referral of this matter to a magistrate judge.

D.E. 16, 18.

Accordingly, this matter was referred to the undersigned to conduct all proceedings and order the
entry of a final judgment in accordance with 28 U.S.C. § 636(c) and Federal Rule of Civil
Procedure 73. D.E. 19. The Court, having reviewed the record and for the reasons stated herein,
GRANTS Plaintiff’s motion for summary judgment (D.E. 22) and DENIES the Commissioner’s
motion for summary judgment (D.E. 25).
The Court must comment on Plaintiff’s summary-judgment motion. The motion is full of
bluster but lacking in factual detail and relevant legal support. This issue has plagued Plaintiff’s
counsel’s filings in this District. See, e.g., Warren v. Kijakazi, No. 6:20-CV-112-REW, 2022
WL 23255, at *2 (E.D. Ky. Jan. 3, 2022) (noting the summary-judgment motion was “nearly
devoid of record citations, argument, and binding case law”); York v. Berryhill, No. 6:20-CV-40KKC, 2021 WL 849229, at *2 (E.D. Ky. Mar. 5, 2021) (finding the summary-judgment motion

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“mount[ed] an exceedingly vague attack” including “conclusory assertions” and an argument the
ALJ was prejudiced against rural Appalachians). Plaintiff’s motion also contains unfounded and
inappropriate characterizations of the work of one of the administrative law judges that handled
Plaintiff’s claim. Future filings of a similar nature will require Plaintiff’s counsel to appear in
court to be held accountable for such practices. Counsel should be mindful that the combative
tone and slapdash attention to detail undermines this Court’s ability to review Plaintiff’s claims
and, in truth, detracts from the forcefulness of Plaintiff’s position on the merits. Although the
outcome of this matter is at this point in Plaintiff’s favor, counsel should view the Court’s
comments as a learning experience for future practice in this District.
Here, there are two underlying decisions by two different administrative law judges.
First, Wilson filed for disability insurance benefits and supplemental security income in February
2015. D.E. 13-1 at 15, 47.1 Following a hearing in December 2016, ALJ Jonathan Leiner found
Wilson was not disabled. Id. at 47-57.
ALJ Leiner’s decision, rendered in April 2017, found that Wilson suffers the severe
impairments of obesity, back disorders, and affective disorders. D.E. 13-1 at 50. However, the
ALJ found none of these impairments, even in combination, met the severity of any listed
impairment. Id. at 51. The ALJ found Wilson had the residual functional capacity (RFC) to
perform a broad range of medium work, with numerous restrictions. Id. at 52-53. The ALJ
found that, although Wilson was unable to perform past relevant work (id. at 55), there were
sufficient jobs in the economy that she could perform, so she was not disabled (id. at 56). Her
date last insured was December 31, 2014. Id. at 48.
Wilson did not appeal the unfavorable April 2017 decision.

1

References to the administrative record are to the large black page numbers at the bottom of each page.

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On March 25, 2019, Wilson filed another application, alleging disability beginning
January 10, 2018. D.E. 13-1 at 192. The application ultimately culminated in a telephonic
hearing before ALJ Tommye Mangus on September 23, 2020.

Id. at 16.

ALJ Mangus

determined that ALJ Leiner’s prior decision was “final” and “binding’ and had a “res judicata”
effect. Id. Accordingly, ALJ Mangus found ALJ Leiner’s findings were controlling except for
Wilson’s claims of blindness or low vision, which were not among the impairments discussed in
the 2017 decision. Id. ALJ Mangus then focused solely on Wilson’s vision issues and found
they did not render her disabled. Id. at 19-22.
The pivotal issue here is that the second ALJ committed a legal error in ascribing res
judicata to the 2017 decision. A key fact is that Wilson’s alleged disability period before ALJ
Leiner (December 31, 2014, to April 25, 2017) is different from the disability period before ALJ
Mangus (January 10, 2018, to October 13, 2020). Recent caselaw establishes that, when a
second application covers a different disability period, the second ALJ must give the record a
“fresh look” and is not bound by the prior ALJ’s findings.
Earley and the Law of a Fresh Look
In its 2018 Earley opinion, the Sixth Circuit addressed a “defect” that had arisen in the
courts based on a “broad reading” of the 1997 Drummond opinion. Earley v. Comm’r of Soc.
Sec., 893 F.3d 929, 934 (6th Cir. 2018) (discussing Drummond v. Comm’r of Soc. Sec., 126 F.3d
837, 840 (6th Cir. 1997)).

The Court clarified that Drummond did not establish “issue

preclusion” on a subsequent application for a different time period. Instead, the principle of
Drummond is that a second ALJ can consider the prior ALJ’s decision to be “an important and
probative fact” to be considered. Id. at 933-34.
First, concerning applications covering the same time period, the Earley Court explained:

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If an individual, say, files a second application for the same period of time finally
rejected by the first application and offers no cognizable explanation for revisiting
the first decision, res judicata would bar the second application. And res judicata
would apply in both directions: to bar the government and individuals from
relitigating a past final decision for no reason other than to take a second bite at
the same apple. See 20 C.F.R. § 404.957(c)(1).
Earley, 893 F.3d at 933.
However, although res judicata “bars attempts to relitigate the same claim, [] a claim that
one became disabled in 1990 is not the same as a claim that one became disabled in 1994.”
Earley, 893 F.3d at 933 (quoting Groves v. Apfel, 148 F.3d 809, 810 (7th Cir. 1998)). The Court
continued,
Had Earley filed a second application for disability benefits for June 25, 2010 to
May 15, 2012, the same period covered by her first application, the ALJ could
have correctly rejected it on res judicata grounds and the principles of finality that
it supports. But Earley did not do that. She filed a new application for a new
period of time. When an individual seeks disability benefits for a distinct period
of time, each application is entitled to review.
Id. Thus, “The Sixth Circuit has explicitly held that res judicata does not apply when a claimant
files a subsequent application for benefits for an entirely different time period.” Ratliff v. Saul,
No. 7:18-CV-114-HRW, 2020 WL 855958, at *3 (E.D. Ky. Feb. 20, 2020).
“Earley establishes that ALJs must give a ‘fresh look’ at new applications covering new
periods.” Goins v. Saul, No. 5:19-CV-117-DLB, 2020 WL 1290784, at *5 (E.D. Ky. Mar. 18,
2020) (quoting Neal v. Comm’r of Soc. Sec., No. 18-10709, 2019 WL 2208555, at *10 (E.D.
Mich. Jan. 31, 2019)). When a subsequent application covers a different disability period, the
subsequent ALJ should “consider[] the prior ALJ’s findings regarding the earlier record when
reviewing a petitioner’s successive application [and] should make determinations based on a
‘fresh look’ at the ‘new evidence . . . while being mindful of past rulings and the record in prior
proceedings.’” Snow v. Saul, No. 5:20-CV-388-EBA, 2022 WL 813603, at *3 (E.D. Ky. Mar.

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16, 2022) (quoting Earley, 893 F.3d at 931). “A fresh look requires the ALJ to consider the new
evidence and make his or her own determinations about a claimant’s limitations.” Id. “Earley
establishes that regardless of her chances of success, an applicant should have the opportunity for
a full hearing, with no presumptions applied, when the claim covers a new period of time not
addressed in the prior hearing.” Warren v. Saul, No. 6:18-CV-225-HRW, 2019 WL 3253964, at
*3 (E.D. Ky. July 19, 2019).
Here, Wilson’s application filed in 2015 alleges disability during a different time period
than the application filed in 2019. As such, res judicata does not strictly apply. Upon her 2019
application, Wilson was entitled to fresh review. Other cases in this Circuit, facing similar
situations, have reached the same conclusion. Norris J. v. Kijakazi, No. 4:21-CV-56-HBB, 2022
WL 4686972, at *3-4 (W.D. Ky. Sept. 30, 2022) (noting that the claimant was “entitled to
independent review because his subsequent application is a separate period of disability from his
prior application,” and finding that a “fresh look” occurred); Snow, 2022 WL 813603, at *3-4
(finding a “fresh look” occurred); Hatfield v. Kijakazi, No. 6:20-CV-214-HAI, 2022 WL 358432,
at *6 (E.D. Ky. Feb. 7, 2022) (same); Harrell v. Comm’r of Soc. Sec., No. 18-10698, 2020 WL
435229, at *7 (E.D. Mich. Jan. 28, 2020) (finding a “fresh look” occurred despite the ALJ’s
citation to Drummond); Goins, 2020 WL 1290784, at *5-6 (same).
Under Earley, when the subsequent ALJ “‘explicitly concluded’ the prior decision was
binding,” and no fresh review was undertaken, then a remand is warranted. Norris J., 2022 WL
4686972, at *4 (quoting Hogren v. Comm’r of Soc. Sec., No. 2:19-CV-854, 2020 WL 830401, at
*4 (S.D. Ohio Feb. 20, 2020), report and recommendation adopted, 2020 WL 1140058 (S.D.
Ohio Mar. 9, 2020)).

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Such is the case here. ALJ Mangus, citing Drummond, noted that there was a final,
binding decision on Wilson’s prior application. D.E. 13-1 at 16. ALJ Mangus found no “new
and material evidence” that would warrant reopening that prior final decision. Id. She then
concluded,
As such, the previous ALJ decision is res judicata for the prior period, and the
only remaining issue before the undersigned is whether the claimant can establish
disability on the basis of blindness or low vision within the date last insured (DLI)
for a blind individual. The undersigned finds that claimant has failed to do so[.]
Id.
ALJ’s Mangus’s decision evidences no fresh review of any of the issues decided in 2017.
ALJ Mangus’s interaction with the record (in terms of weighing evidence and making findings)
is limited to blindness and/or low vision. See id. at 20. This is despite Wilson asserting in her
application that, although she had unsuccessfully applied for disability before, her “conditions”
had grown “worse.” Id. at 194, 227. The 2020 ALJ’s decision contains no fresh looks at
Wilson’s allegedly worsened conditions that were discussed by the other ALJ in 2017.
Given the above authorities, a remand is necessary here. Wilson’s 2019 application
alleged a different disability period, so the ALJ was required to give the 2017 decision a “fresh
look.” Instead, the ALJ applied res judicata to everything but Wilson’s alleged blindness or low
vision. Stated differently, this means the ALJ’s 2020 decision was not supported by substantial
evidence.
Wilson’s motion frames the issue as a denial of a request to reopen the 2017 decision.
D.E. 22. Wilson’s 2019 application sought benefits for an entirely different alleged disability
period, so it was not merely a request to reopen the earlier proceedings. Wilson states she did
move unsuccessfully to reopen the earlier proceedings “upon reaching a new [ALJ].” Id. at 2.
ALJ Mangus’s opinion includes an explanation for not reopening the 2017 decision. D.E. 13-1

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at 16. Even so, the law does not authorize judicial review of the Commissioner’s decision not to
reopen a previously adjudicated claim for benefits. See Mounts v. Berryhill, No. 6:18-CV-261REW, 2020 WL 34407, at *7 (E.D. Ky. Jan. 2, 2020). This Court would thus lack jurisdiction of
a denial of a request to reopen. An exception to this rule exists for constitutional claims.
Califano v. Sanders, 430 U.S. 99, 109 (1977); Blacha v. Sec’y of Health & Hum. Servs., 927
F.2d 228, 231-32 (6th Cir. 1990).

But Wilson’s motion does not articulate an actual

constitutional claim. She argues she was denied due process and equal protection due to ALJ
Leiner’s “bias and lack of impartiality.” D.E. 22 at 4. But she points to no evidence of bias apart
from an unfavorable decision and certain statements of the record she found objectionable.
Thus, Wilson is entitled to relief, but not on the bases she argued in her motion. The issue here,
in the Court’s view, is not the denial of the motion to reopen, but rather the ALJ’s failure to give
a fresh look to Wilson’s impairments that were assessed in the 2017 decision.
CONCLUSION
The Court being sufficiently advised, IT IS HEREBY ORDERED as follows:
(1)

Plaintiff’s Motion for Summary Judgment (D.E. 22) is GRANTED.

(2)

The Commissioner’s Motion for Summary Judgment (D.E. 25) is DENIED.

(3)

JUDGMENT will be entered in favor of the Plaintiff by separate order.

This the 17th day of November, 2022.

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