Johnson v. SSA

Filing 31

MEMORANDUM OPINION & ORDER: the Acting Commissioners Motion for Summary Judgment (DE 16 ) is GRANTED. Signed by Judge Joseph M. Hood on 9/29/17.(MJY) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
DANNY JOHNSON,
Plaintiff,
v.
NANCY A. BERRYHILL1, Acting
Commissioner of Social
Security,

)
)
)
)
)
)
)
)
)
)

Civil Case No. 7:16-96-JMH
MEMORANDUM OPINION AND
ORDER

Defendant.
***

This matter is before the Court upon the Acting Commissioner’s
Motion to Dismiss (DE 16) Plaintiff’s Complaint in part pursuant
to Fed. R. Civ. P. 12(b)(6) for failure to state a claim. Plaintiff
has filed a Response [DE 16], stating her objections to the Motion,
and the Acting Commissioner has filed a Reply (DE 20) in further
support of her Motion.

The Court provided notice to the parties

that this Motion would be converted to motions for summary judgment
in part and provided the parties with time to respond (DE 21).
Plaintiff filed his own Motion for Summary Judgment (DE 26 and 27)
and the Acting Commissioner responded (DE 30).

Plaintiff did not

reply and the time in which to do so has expired.
are

no

disputes

regarding

the

1

material

facts,

Because there
and

because

The caption of this matter is amended to reflect that Nancy A. Berryhill
became the Acting Commissioner of Social Security on January 23, 2017,
replacing Carolyn W. Colvin in that role.

1

resolution of the legal issues favor the defendant, for all of the
reasons stated below, the Acting Commissioner’s Motion will be
granted.
I.

BACKGROUND

As Plaintiff averred in his Amended Complaint, he was found
entitled

to

a

period

of

disability

and

disability

insurance

benefits and supplemental security income by an administrative law
judge (ALJ) on April 4, 2007 (Am. Compl. ¶ 5). The ALJ issued a
fully favorable decision without a hearing by relying on evidence
from Dr. Frederic Huffnagle (DE 10, Exhibit A: Declaration of Lori
President
Plaintiff

2, Attachment 1 (President Decl.)).
was

represented

by

Eric

C.

At the time,

Conn,

an

attorney

representative (id.).
Plaintiff’s lawsuit arises out of the redetermination process
set forth in sections 205(u) and 1631(e)(7) of the Act.

Those

sections require SSA to “immediately redetermine” an individual’s
entitlement to benefits whenever there is “reason to believe that
fraud or similar fault was involved in the application of the
individual for such benefits,” and, in the process, to “disregard
any evidence” if there is reason to believe that fraud or similar
fault was involved in providing that evidence.

42 U.S.C. §§

405(u)(1), 1383(e)(7)(A). “If, after redetermining pursuant to
this

subsection

the

entitlement

of

an

individual

to

monthly

insurance benefits, the Commissioner of Social Security determines
2

that there is insufficient evidence to support such entitlement,
the Commissioner of Social Security may terminate such entitlement
and may treat benefits paid on the basis of such insufficient
evidence as overpayments.” 42 U.S.C. § 405(u)(3);see also 42 U.S.C.
§ 1383(e)(7)(C).
Under the redetermination process, if the case is remanded to
an ALJ for a hearing, individuals may submit statements or evidence
up to the date of their hearing in support of the original
disability determination, regardless of whether the individual
previously submitted that evidence to the Appeals Council (AC).
Social Security Ruling (SSR) 16-1p, 81 Fed. Reg. 13436 (Mar. 14,
2016).

If the ALJ issues a decision finding that an individual

was not entitled to benefits at the time he or she was originally
awarded

benefits,

that

individual’s

benefits

will

then

be

terminated. The individual may subsequently request review by the
AC.

See 20 C.F.R. §§ 404.967-404.968, 416.1467-416.1468.

If the

AC issues a decision, that decision will constitute the final
agency decision.

20 C.F.R. §§ 404.981, 416.1481.

If the AC

decides not to review the ALJ’s decision, the ALJ’s decision will
constitute
416.1481.

the

final

agency

decision.

20

C.F.R.

§§

404.981,

In either situation, a dissatisfied individual may then

seek judicial review. 42 U.S.C. §§ 405(g)-(h); see also id. §
1383(c)(3).

3

On May 12, 2015, pursuant to section 1129(l) of the Social
Security Act (Act), 42 U.S.C. § 1320a-8(l), SSA OIG informed the
agency that there was reason to believe that fraud was involved in
the applications for benefits of approximately 1,800 individuals
(President Decl. ¶ 3, Attachment 2). Specifically, SSA OIG had
reason to believe that Mr. Conn or his firm submitted pre-completed
“template” Residual Functional Capacity forms purportedly from
Bradley

Adkins,

Ph.D.,

Srinivas

Ammisetty,

M.D.,

Frederic

Huffnagle, M.D., or David P. Herr, D.O., dated between January
2007 and May 2011, in support of the individuals’ applications for
benefits2(id.).
Following receipt of this information, SSA was required by
statute to redetermine those individuals’ entitlement to benefits
in accordance with sections 205(u) and 1631(e)(7) of the Act. 42
U.S.C. §§ 405(u) and 1383(e)(7).

Plaintiff was one of those

individuals. Shortly after SSA OIG’s referral, on May 18, 2015,
SSA notified Plaintiff that there was reason to believe fraud or
similar fault was involved in his application for benefits, and
that SSA was required to redetermine his entitlement to benefits

2

3 Mr. Conn, Dr. Adkins, and former Huntington Hearing Office Administrative
Law Judge David Daugherty were charged in an 18-count indictment returned on
April 1, 2016 in the U.S. District Court for the Eastern District of Kentucky.
See Indictment, U.S. v. Conn, et al., 5:16-cr-22 (E.D. Ky. Apr. 1, 2016), ECF
No. 1. Mr. Conn is a fugitive with an active arrest warrant out for him [DE
222].
A jury convicted Dr. Adkins and he was sentenced to 300 months
imprisonment [DE 267]. ALJ Daugherty pleaded guilty and was sentenced to 48
months in 5:17-cr-66 (E.D. Ky. August 28, 2017), a related case arising out of
the same conduct.

4

under sections 205(u) and 1631(e)(7) and disregard the evidence
from Dr. Huffnagle (President Decl. ¶ 4, Attachment 3). SSA invited
Plaintiff to submit more evidence or a statement about the facts
or law in his case (id.).

On July 29, 2015, SSA notified Plaintiff

that it had considered any evidence submitted along with the other
evidence of record, but that there was insufficient evidence to
support the prior ALJ’s decision (President Decl. ¶ 5, Attachment
4).

SSA remanded Plaintiff’s case to a new ALJ for a hearing and

a new decision (id.).
The ALJ conducted a video hearing on November 13, 2015, at
which Plaintiff appeared with a representative (President Decl. ¶
7). After considering the hearing testimony and relevant evidence,
the ALJ concluded that there was insufficient evidence in the
administrative record to support Plaintiff’s original entitlement
to benefits (President Decl. ¶ 7, Attachment 5).

This decision

became the agency’s final decision when the Acting Commissioner
denied Plaintiff’s request for review on March 22, 2016 (President
Decl. ¶ 7, Attachment 6).
Plaintiff filed his complaint with this Court on May 21, 2016
(DE 1), and served the Acting Commissioner on May 26, 2016.
Plaintiff filed an amended complaint on July 29, 2016 (see Am.
Compl.).
II.

ANALYSIS

5

The arguments presented on behalf of Plaintiff and the Acting
Commissioner mirror those previously addressed by the Court in
Perkins v. Colvin, Pikeville Civil Action No. 16-CV-35 (E.D. Ky.
December 16, 2016), as well as by my brother Judge Reeves in a
series of decisions rendered on November 15, 2016, see 0:16-017DCR, 0:16-061-DCR, 7:16-051-DCR, 7:16-059-DCR, 7:16-068-DCR, 7:16075-DCR, 7:16-101-DCR, and 7:16-153-DCR, from across the Eastern
District of Kentucky.

My decision in Perkins and those rendered

by Judge Reeves clearly explain why we believe no due process error
occurred in the redetermination procedure employed by the Acting
Commissioner.3

Nothing more need be said on this point.

Additionally, Plaintiff attempts to repackage other arguments
already addressed by this Court and Judge Reeves.

Plaintiff

contends that (1) the agency’s reopening regulations govern the
redetermination process under sections 205(u)4 and 1631(e)(7), and
(2) the agency violated the Social Security Act’s requirement that
redetermination hearings be initiated “immediately” upon there
being a reason to believe fraud or similar fault was involved in
Plaintiff’s original application for benefits.

These arguments

require no further discussion, as they have already been rejected
by this Court in Perkins, 7:16-cv-35, and Thompson, 0:16-cv-62,
and by Judge Reeves in 0:16-017-DCR, 0:16-061-DCR, 7:16-051-DCR,

4

Plaintiff uses the statutory citation, 42 U.S.C. § 405(u).

6

7:16-059-DCR, 7:16-068-DCR, 7:16-075-DCR, 7:16-101-DCR, and 7:16153-DCR.

Finally, Plaintiff argues Defendant utilized HALLEX I-1-3-25
as the guideline for the procedures used in his redetermination
procedure, and that those procedures constitute violations of the
Administrative Procedure Act, and should not be subject to Chevron
deference.

The Court believes these arguments have all been

thoroughly analyzed and rejected in the cases cited above; to any
possibly extent they have not, the Court finds them unconvincing.
As the Sixth Circuit stated in Garcia v. Sec’y of Health & Human
Servs., 46 F.3d 552, 557 (6th Cir. 1995), “[a]lthough social
security rulings do not have the force or effect of law, we are
persuaded that Chevron [deference] applies to social security
rulings insofar as the rulings directly involve construction of
the statute.”

As previously briefed, the agency’s interpretation

of 42 U.S.C. §§ 405(u), 1320a-8(l), and 1383(e)(7) is entitled to
deference.
Accordingly, for the reasons stated herein,
IT IS ORDERED that the Acting Commissioner’s Motion for
Summary Judgment (DE 16) is GRANTED.
This the 29th day of September, 2017.

7

8