Riley v. SSA

Filing 12

MEMORANDUM OPINION & ORDER: 1) Plaintiffs Motion to Remand DE 10 is DENIED; and 2) Plaintiff shall file, within twenty (20) days, its Motion for Summary Judgment and supporting Memorandum. The partiesbriefing schedule shall, thereafter, be in conformity with theCourts Standing Scheduling Order. General Order 09-13 DE 9 . Signed by Judge Joseph M. Hood on 1/19/12.(MJY)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
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) Civil Action No. 7:11-cv-71-JMH
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) MEMORANDUM OPINION AND ORDER
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JERRY D. RILEY,
Plaintiff,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY
Defendant.
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This matter is before the Court on Plaintiff’s Motion to
Remand his claim to the Social Security Administration or, in the
alternative, to allow him an additional twenty days to file an
appeal on the merits of his claim.

[DE 10].

The Commissioner has

filed a Response, [DE 11], and this matter is now ripe for
decision.

For the following reasons, Plaintiff’s Motion will be

denied in part and granted in part.
I.

PROCEDURAL HISTORY
The events leading up to Plaintiff’s Motion to Remand comprise

a tortured history, to say the least.

Plaintiff Jerry D. Riley

filed his first application for Supplemental Security Insurance
(“SSI”)

benefits

on

October

17,

disability of September 28, 1994.
benefits

based

on

that

1994,

alleging

an

onset

of

Eventually, he was awarded

application.

The

Social

Security

Administration reviewed Plaintiff’s case three years later and
determined that he was no longer disabled.
denied

Plaintiff’s

request

for

review

The Appeals Council
and

the

unfavorable

determination became the final decision of the Commissioner.
Plaintiff did not seek judicial review of the decision.
On March 19, 2003, Plaintiff filed a second application for
SSI benefits, alleging an onset of disability of October 17, 1994.
Plaintiff’s claim was denied initially and upon reconsideration.
Following multiple hearings, ALJ Gitlow issued an unfavorable
decision

on

January

7,

2005.

Plaintiff’s request for review.

The

Appeals

Council

denied

Plaintiff appealed to the United

States District Court for the Eastern District of Kentucky and the
matter was remanded to the Appeals Council.

Upon remand, the

Appeals Council vacated the decision and remanded the case to the
ALJ on September 26, 2006.

At that point, a new hearing was held,

which resulted in an unfavorable decision by ALJ Andrew Chwalibog.1
Plaintiff sought another review by the Appeals Council, which again
remanded the claim to ALJ Chwalibog on January 2, 2008.2

An

additional hearing was held and, on March 23, 2009, ALJ Chwalibog

1

On April 12, 2005, while Plaintiff’s second application was
pending, Plaintiff filed a third application, which the ALJ
consolidated with the second.
2

The parties agree that while ALJ Chwalibog’s March 2009
opinion mistakenly reports that the matter was remanded by the
United States District Court, it was actually remanded by the
Appeals Council. See Administrative Record 566; DE 11, p. 4; DE
10, p. 3.
2

issued another unfavorable decision.
review.

The Appeals Council denied

Thus, the decision involving Plaintiff’s consolidated

second and third applications for SSI is ripe for review, pursuant
to 42 U.S.C. § 1383(c)(3).
Plaintiff argues that remand of his claim is warranted
because the Commissioner’s decision is “premised on a fatally
incomplete record and inaccurate past history.”

Specifically,

Plaintiff argues that the Administrative Record is incomplete
because it does not contain, nor did ALJ Chwalibog consider, two
hearing transcripts associated with his previous SSI application
and the 2008 Appeals Council remand order. Plaintiff contends that
the absence of these documents, along with the ALJ’s misstatement
regarding the source of the January 2008 remand, constitutes a
basis from which to conclude that the Commissioner’s decision was
not based on substantial evidence. Alternatively, Plaintiff argues
that his case should be remanded based on sentence six of 42 U.S.C.
§ 405(g).
II.

STANDARD OF REVIEW
In reviewing the ALJ’s decision to deny disability benefits,

the Court may not try the case de novo, nor resolve conflicts in
the evidence, nor decide questions of credibility. Cutlip v. Sec’y
of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994).
Instead, judicial review of the ALJ’s findings is limited to an
inquiry

into

whether

the

ALJ’s

3

findings

were

supported

by

substantial evidence, 42 U.S.C. § 405(g), Foster v. Halter, 279
F.3d 348, 353 (6th Cir. 2001), and whether the ALJ employed the
proper legal standards in reaching his conclusion.

See Landsaw v.

Sec’y of Health & Human Servs., 803 F.2d 211, 213 (6th Cir. 1986).
“Substantial evidence” is “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, 25 F.3d at 286.
III. DISCUSSION
Plaintiff has failed to provide facts or case law suggesting
that ALJ Chwalibog should have considered the hearing transcripts
at issue or that his alleged failure to do so prejudiced Plaintiff
in any way. Further, Plaintiff has failed to establish that he was
prejudiced by the absence in the Administrative Record of the 2008
Appeals Council remand order.

As the party seeking remand,

Plaintiff bears the burden of showing that it is proper.

See

Sizemore v. Sec’y of Health & Human Servs., 865 F.2d 709, 711 (6th
Cir. 1998).

For the following reasons, Plaintiff has failed to

meet that burden.
First, Plaintiff contends that a 1996 hearing transcript,
taken from his initial, successful SSI application, should have
been considered in adjudicating his later applications.

He argues

that the hearing transcript is important with respect to his
current application because the initial ALJ found him to be
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credible and determined that he was disabled.

Plaintiff has not

explained, however, how the hearing transcript is relevant to his
current claim.
credibility

Moreover, it is difficult to discern how one ALJ’s

determination

would

have

a

significant

another ALJ’s findings over thirteen years later.

effect

on

ALJ Chwalibog

was equipped to make his own credibility determination based upon
the medical evidence and Plaintiff’s testimony during the hearings
that ALJ Chwalibog himself conducted. Plaintiff also contends that
this

matter

should

be

remanded

based

on

the

absence

of

the

transcript from a 2001 hearing, which was associated with the
cessation of Plaintiff’s previous SSI benefits.

Again, Plaintiff

has failed to establish that the hearing’s content is relevant to
his current application.

In fact, in his memorandum in support of

his Motion to Remand, Plaintiff does not discuss the content of the
hearing.
council

Rather, he points out that he was not represented by
and

suggests

deficient at the time.

that,

perhaps,

his

mental

capacity

was

[Plaintiff’s Memo p. 3].

This Court’s review is limited to determining whether the
Commissioner’s decision was based upon substantial evidence and
whether he
decision.

followed the proper legal standards in making his
See Foster, 279 F.3d at 353; Landsaw, 803 F.2d at 213.

Plaintiff has failed to establish that the Commissioner erred in

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failing to consider the 2001 hearing transcript.3

Plaintiff also

argues that the record is incomplete due to the absence of the
Appeals Council remand order dated January 1, 2008. He states that
ALJ Chwalibog’s 2009 opinion “disregards the directives” set out in
the remand order, but fails to elaborate on this claim.

Despite

Plaintiff’s contention, ALJ Chwalibog’s opinion indicates that he
considered and followed the directives issued by the Appeals
Council.

See Administrative Record (“AR”) 566.

In his opinion, ALJ Chwalibog briefly addressed the issue of
reopening Plaintiff’s prior SSI application.

See AR 564.

Because

Plaintiff alleged a 1994 onset of disability in each of his SSI
applications, ALJ Chwalibog construed Plaintiff’s second and third
applications

as

alleging

reopening

of

the

first.

Id.

ALJ

Chwalibog determined that the cessation of benefits decision,
issued in 2001, was administratively final and could not be
reopened.
The

Social

Security

Administration

reopens

final

determinations under very limited circumstances, including good
cause, if found within four years of the Commissioner’s final
decision.

See 20 C.F.R. § 404.988.

3

This Court has limited

Plaintiff relies upon a Social Security Administration
Acquiescence Ruling that applies only to cases in which the
claimant resides in Maryland, North Carolina, South Carolina,
Virginia or West Virginia.
Even if the Ruling were applied to
Plaintiff’s case, however, it would not benefit him since he has
not presented a prima facie case of mental incompetence. SSAR 904(4), 55 Fed. Reg. 28943-02 (July 16, 1990).
6

jurisdiction to review the Secretary’s decision to refuse to reopen
an application.

See Wallace v. Weinberger, 528 F.2d 700, 704 (6th

Cir. 1976)(citing Maddox v. Richardson, 464 F.2d 617 (6th Cir.
1972); Administrative Procedure Act, 5 U.S.C. § 701, et seq.

In

order to review such a decision, we must find that a plaintiff has
established

a

colorable

constitutional

claim.

Sullivan, 987 F.2d 342, 345 (6th Cir. 1992).

Cottrell

v.

Absent such a claim,

a federal court has no jurisdiction to review the Commissioner’s
decision

not

to

reopen.

Id.

While

Plaintiff,

who

is

now

represented by counsel, hints that he may have lacked the mental
capacity to file an appeal from the initial denial of his benefits,
he makes no argument that the Commissioner somehow deprived him of
due process or any other constitutional right.

Accordingly, this

Court lacks jurisdiction to review the Commissioner’s decision
against reopening Plaintiff’s earlier applications.
Finally, Plaintiff’s motion to remand pursuant to sentence six
of 42 U.S.C. § 405(g) is without merit.

Before a district court

may remand a case for the taking of additional evidence, the moving
party must show that the evidence at issue is both new and material
and that there is good cause for the failure to incorporate the
evidence into the record at an earlier time.
405(g).

See 42 U.S.C. §

Plaintiff has failed entirely to develop an argument with

respect to his request for a sentence six remand.

Regardless, the

Court notes that Plaintiff has failed to establish that the missing

7

evidence is material to the adjudication of his current application
for SSI benefits.
Accordingly, IT IS ORDERED:
1)

Plaintiff’s Motion to Remand [DE 10] is DENIED; and

2)

Plaintiff shall file, within twenty (20) days, its Motion

for Summary Judgment and supporting Memorandum.

The parties’

briefing schedule shall, thereafter, be in conformity with the
Court’s Standing Scheduling Order.

General Order 09-13 [DE 9].

This the 19th day of January, 2012.

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