Blackburn v. SSA
Filing
13
MEMORANDUM OPINION & ORDER: Her decision is AFFIRMED. Accordingly, IT IS ORDERED that the Acting Commissioner's motion for summary judgment (DE 11 ) is GRANTED. IT IS FURTHER ORDERED that Plas motions for summary judgment (DEs 8 and 9 ) be DENIED. A separate judgment in conformity herewith shall this date be entered. Signed by Judge Joseph M. Hood on 12/5/2017. (TDA) cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION at PIKEVILLE
ELLA FAYE BLACKBURN,
)
)
)
)
)
)
)
)
)
)
Plaintiff,
v.
NANCY A. BERRYHILL, ACTING
COMMISSIONER OF SOCIAL
SECURITY,1
Civil Case No.
7: 16-cv-217-JMH
MEMORANDUM OPINION & ORDER
Defendant.
***
This matter is before the Court upon cross motions for
summary judgment [DEs 8, 9 and 11]2.
Plaintiff has filed a reply
[DE 12]. For the reasons stated below, the Acting Commissioner’s
motion for summary judgment will be granted.
The Court’s review of the Acting Commissioner’s decision
concerning
inquiry
disability
into
whether
upon
or
reconsideration
not
the
is
findings
limited
of
the
to
an
Acting
Commissioner are supported by substantial evidence, and whether
the
correct
legal
standards
were
applied.
See
42
U.S.C.
§
405(g); Richardson v. Perales, 402 U.S. 389, 390, 401 (1971).
Moreover,
1
this
Court’s
review
is
limited
“to
the
particular
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.
2
The Court notes that plaintiff, contrary to the Court’s scheduling order and
without leave of Court, filed two separate motions for summary judgment [DE
8 and 9]. The Court will consider only the later of the two.
points that [the claimant] appears to raise in [his] brief on
appeal.” Hollon v. Comm’r of Soc. Sec., 447 F.3d 477, 491 (6th
Cir. 2006).
Ella
Insurance
Faye
Blackburn
Benefits
in
filed
an
September
application
2013,
her
for
Disability
fourth,
alleging
disability commencing in January 2008 [TR. 222-234]. After being
denied initially and upon reconsideration [TR 103-41], Blackburn
requested a hearing [TR 165-66].
Her case was heard [TR 39-51]
by Administrative Law Judge (ALJ) Maria Hodges, who issued an
unfavorable decision on January 29, 2016 [TR. 22-32].
In her
denial decision, the ALJ the ALJ declined to reopen Plaintiff’s
prior applications and adjudicated the period between May 11,
2012 (the day after the most recent ALJ decision) and December
31, 2012) (Plaintiff’s date last insured for DIB purposes)3 [TR
22]. The ALJ concluded that Plaintiff was not disabled within
the meaning of the Act during the relevant period [TR 22-32].
The Appeals Council denied Plaintiff’s request for review in
July 2016 [TR 1-4]. This appeal followed.
The initial question presented is Plaintiff’s contention
that the Court should look back to March 2008, even though she
has had three prior applications for DIB denied.
3
Plaintiff also
In order to receive DIB, a claimant must establish that her disability began
before her insured status expired. 20 C.F.R. § 404.131(b).
2
contends
decision.
that
the
ALJ
de
facto
reopened
her
earlier
denial
Both arguments are flawed.
Plaintiff
contends
that
the
ALJ
“affirmed
reopening” of her initial 2009 decision.
with this contention.
the
de
facto
There are two problems
First, Plaintiff is relying on the 2012
ALJ decision, not the 2015 decision that is under appeal here.
In the 2015 decision, the ALJ expressly declined to reopen the
2012 decision [TR 22], so even if Plaintiff’s characterization
of what the ALJ did in 2012 was accurate, it would still not be
under review in this appeal.
See 20 C.F.R. §§ 404.981 (“[T]he
decision of the administrative law judge . . . is binding unless
you . . . file an action in Federal district court . . . within
60
days
after
the
date
you
receive
notice
of
the
Appeals
Council’s action.”), §404.987 (“[I]f you are dissatisfied with a
determination
or
decision
made
in
the
administrative
review
process, but do not request further review within the stated
period, you lose your right to further review and that . . .
decision
becomes
refused
to
final.”).
reopen
In
Plaintiff’s
any
event,
initial
in
2012,
decision
the
and
ALJ
only
adjudicated the narrow period—October 2010 to May 2012—that was
before her [TR 82-83]. (“[T]he claimant has not submitted any
new
evidence
therefore
no
material
good
to
the
prior
decision
cause
for
reopening.”)).
and
there
is
This
did
not
represent a de facto reopening of the 2009 decision. See Hamlin
3
v. Comm’r of Soc. Sec., No. 96-3243, slip op. at 5 (6th Cir.
Dec.
17,
1996)
(finding
no
de
facto
reopening
where
ALJ
expressly stated he was not reopening previous application and
stated that he was only considering the unadjudicated period).
In
order
Plaintiff
would
to
reopen
need
to
any
of
the
meet
one
of
prior
the
ALJ
decisions,
narrow
exceptions
enumerated at 20 C.F.R. § 404.988(c), which describe situations
in which a final decision may be reopened “[a]t any time.”4
Plaintiff has made no attempt to explain how she meets any of
these reopening situations, and this Court rejects any attempt
by Plaintiff to argue she should be found disabled starting in
2008.
See also Califano v. Sanders, 430 U.S. 99, 107-08 (1977)
(finding no jurisdiction to review refusal to reopen absent a
constitutional claim). Thus, this Court will not consider the
period
of
time
other
than
Plaintiff’s latest claim:
that
adjudicated
by
the
ALJ
on
May to December 2012.
4
Within four years of the notice of the initial determination on
the application, a final decision may be reopened for “good
cause.” 20 C.F.R. § 404.988(b). In Plaintiff’s most recent
application, the initial determination on the application was
January 2011—five years before the ALJ decision on the current
application [TR 22], so the good cause standard did not apply.
In any event, the ALJ specifically held that Plaintiff had not
presented new and material evidence to support such a reopening
[TR 22). And Plaintiff has not attempted to argue to this Court
that she submitted such new and material evidence or that one of
the other bases for “good cause” are present, so as to justify
reopening of the 2012 decision. See 20 C.F.R. § 404.989.
4
It is now the opportune place to consider to the evidence
germane to the period in question.
In the May 2012 decision,
the ALJ found that Plaintiff retained the ability to perform a
reduced
range
of
light
work
with
the
following
additional
limitations: stand and walk for at least four hours in an eighthour workday with a break every hour; not engage in sustained or
frequent overhead work; not required to use hand held vibrating
power tools; not climb hills, slopes, or work on uneven terrain;
not
crawl,
occasionally
stairs,
moving
climb
ladders,
bend,
steps,
or
ramps;
machinery,
equipment,
stoop,
be
engage
or
work
crouch,
not
work
exposed
in
to
at
unprotected
squat,
kneel,
in
vicinity
the
vibration,
commercial
driving,
heights;
and
climb
of
heavy
operate
be
mobile
exposed
to
temperature extremes, or work in damp, humid conditions; should
wear corrective eyeglasses; understand, remember, and carry out
instructions
toward
performance
of
simple
repetitive
tasks;
sustain attention and concentration toward performance of simple
repetitive
tasks;
and
could
frequently
be
exposed
to
supervisors, coworkers, and work pressures [TR 89].
Both
before
and
after
that
decision,
Plaintiff
saw
her
primary care doctor Chad Thacker, M.D., and other providers in
his practice frequently (Tr. 1042-44, 1126-28). Before the 2012
decision, Plaintiff frequently reported back pain and described
her pain level was seven out of 10 (with 10 being the worst
5
possible pain). (Tr. 1043-44). She reported an exacerbation of
that pain in June 2012 (Tr. 1126), but in July 2012, she told
endocrinologist Belal Said, M.D., that her pain was only four
out of 10 (Tr. 154-57). In September 2012, Plaintiff told Dr.
Thacker that her pain had gotten worse over the weekend (Tr.
1127),
but
that
December,
Plaintiff
did
not
complain
of
increased pain and was prescribed her usual medications (Tr.
1128). In 2013 and 2014—after her DIB insured status expired—Dr.
Thacker
repeatedly
noted
that
Plaintiff’s
chronic
pain
was
stable (Tr. 1186-88, 1214-15, 1221, 1237).
In
January
2014,
state
agency
consultant
Mary
Thompson,
Ph.D., considered Plaintiff’s mental functioning after a review
of the records and adopted the mental limitations of the May
2012
ALJ
decision
(Tr.
118).
In
April
2014,
state
agency
consultant Leah Perritt, Ph.D., affirmed that opinion (Tr. 140).
That month, another state agency consultant, P. Saranga, M.D.,
adopted the physical RFC findings from the May 2012 decision
(Tr. 139).
Medical
expert
Harold
Milstein,
M.D.,
answered
medical
interrogatories sent to him by the ALJ in December 2015 (Tr.
1304-09).
He opined that Plaintiff could lift and carry 21 to
50 pounds frequently; sit eight hours total and one hour at a
time; stand four hours total and two hours at a time; walk two
hours total and one hour at a time; and continuously use her
6
right
hand,
activities,
operate
and
be
foot
exposed
controls,
to
engage
environmental
in
postural
conditions
(Tr.
1304-09).
At some point before the January 2015 decision, Plaintiff
submitted a letter from Dr. Thacker (Tr. 1316). He described
Plaintiff’s condition and treatment and stated that Plaintiff
required multiple medications to maintain a normal lifestyle and
complete
her
activities
of
daily
living
(Tr.
1316).
He
concluded, “The above conditions prevent the patient from being
able to commit to any type of gainful employment at all. These
conditions along with the patient’s age would make any type of
employment impossible for the patient” (Tr. 1316).
In
her
January
2015
decision,
the
ALJ
considered
Plaintiff’s functioning between May and December 2012 (Tr. 2232).
As relevant here, the ALJ found that Plaintiff had the
following
spinal
severe
stenosis,
impairments:
status
depression (Tr. 25).
degenerative
post
right
disc
wrist
disease
with
fracture,
and
The ALJ determined that Plaintiff had the
residual functional capacity (RFC) to perform a reduced range of
light work with the same additional limitations as contained in
the May 2015 ALJ decision (compare Tr. 27 with Tr. 89).
While
Plaintiff could not perform her past relevant work with that
RFC, the ALJ found that she could perform other work existing in
significant numbers in the national economy (Tr. 31).
7
Thus, the
ALJ concluded that Plaintiff was not disabled within the meaning
of the Act (Tr. 32).
Plaintiff submitted two additional medical documents to the
Appeals Council (Tr. 4).
An April 2016 report from Anbu Nadar,
M.D., purported to be prepared after an “orthopedic evaluation”
(Tr. 1319-21). He stated that Plaintiff was limited in activity
that
required
heavy
lifting,
frequent
bending,
twisting,
turning, prolonged sitting, and standing (Tr. 1321).
Plaintiff
Thacker
to
Plaintiff’s
also
the
submitted
Appeals
degenerative
an
Council
disc
April
(Tr.
disease
2016
1322).
would
letter
He
from
stated
have
Dr.
that
“severely
limited her ability to lift, carry, stand, stoop, and crawl
before
December
conditions
would
2012”
have
and
that
prevented
her
her
physical
from
and
mental
maintaining
any
substantial gainful employment prior to December 2012 (Tr. 1322).
To the extent Plaintiff challenges the RFC finding, the
Court should reject that argument because this RFC is identical
to the RFC from the 2012 ALJ decision (compare Tr. 27 with Tr.
89). In Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 842-43
(6th Cir. 1997), the Sixth Circuit held res judicata applied to
previous ALJ’s decisions, and the Commissioner was bound by a
previous ALJ’s RFC finding absent changed circumstances.
In
Acquiescence Ruling (AR) 98-4(6), 1998 WL 283902, the agency
8
clarified how it would comply with Drummond in Sixth Circuit
jurisdictions:
When adjudicating a subsequent disability
claim with an unadjudicated period arising
under the same title of the Act as the prior
claim, adjudicators must adopt [an RFC]
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 the finding.
Id. at *3. Because there was no new and material evidence or
change in the law, regulations, and rulings, the ALJ reasonably
adopted the RFC finding from the earlier decision (Tr. 29 (“The
undersigned finds the prior decision is accurate, and affords it
great consideration and adopts . . .the [RFC] through the date
last insured.”)).
Plaintiff also argues that the ALJ should have determined
that
the
Medical-Vocational
Guidelines
(Grids)
found
at
20
C.F.R. part 404, subpart P, appendix 2 dictated a disability
finding. But Plaintiff takes two logical leaps to reach this
conclusion,
neither
of
which
is
appropriate.
First,
she
contends that the ALJ was actually describing a sedentary —not
light— exertional capacity because Plaintiff was limited to four
hours of standing and walking per workday.
simply
incorrect.
The
Commissioner’s
9
This position is
regulations
define
the
light exertional level by how much weight is lifted, and do not
specify a minimum period of time the claimant must spend on her
feet: “Light work involves lifting no more than 20 pounds at a
time with frequent lifting or carrying of objects weighing up to
10 pounds.” 20 C.F.R. § 404.1567(b).
To perform the full range
of light work, a claimant must be able to walk for six hours in
an eight hour workday, Social Security Ruling (SSR) 83-10, 1983
WL
31251,
perform
a
at
*5-6,
reduced
but
range
the
ALJ
of
light
found
work,
that
not
Plaintiff
could
the
range
full
contemplated by the Grids [ TR 27] (“[T]he undersigned finds
that . . . the claimant had the [RFC] to perform lightwork . . .
except she could only be on her feet half of the workday . . .
.”).
A finding that Plaintiff could perform a reduced range of
light work does not automatically move the RFC finding into the
sedentary category, as Plaintiff seems to argue.
This merely
means that the ALJ could not rely solely on the light grid rule
to find that Plaintiff was not disabled, and needed to consult a
vocational expert to determine whether there was work in the
national economy that Plaintiff could perform. Social Security
Ruling 83-12 addresses exactly this situation and states that,
when an RFC is between two exertional levels, the ALJ should
consult a vocational expert. See SSR 83-12, 1983 WL31253, at *3.
That is exactly what the ALJ did here — called a vocational
10
exert to testify about whether a person with Plaintiff’s RFC
could perform other work (Tr. 47-50) – and then relyed on that
testimony to find that Plaintiff was not disabled (Tr. 31-32).
Nor can Plaintiff rely on the age categories to support her
argument that the Grids dictate a finding of disabled. Plaintiff
was a person closely approaching advanced age throughout the
period adjudicated by the ALJ (Tr. 31). She was 53 in May 2012,
when the relevant period began and 54 in December of that year,
when the period ended (Tr. 233 (indicating her birthdate was
June 17, 1958)). A person between the ages of 50 and 54 is in
the closely-approaching advanced-age category. See 20 C.F.R. §
404.1563(d).
Applying the light grid rule, a person in that age
category who shared Plaintiff’s other vocational factors—a high
school
education
and
skilled
past
work
with
no
transferable
skills (Tr. 47, 49, 265)—would be classified not disabled. See
20 C.F.R. pt. 404, subpt. P, app. 2, § 202.14.
However, once
such an individual moved into the advanced age category, the
grid rules would dictate the opposite and direct a finding of
disabled.
Id.at § 202.06.
Plaintiff
argues
that
the
Court
should
not
mechanically
apply the grid rules and should put Plaintiff in the advanced
age category because she turned 50 six months after her insured
status
expired
(Pl.’s
Br.
3-4).
But
the
Commissioner’s
regulations state that adjudicators should consider placing a
11
claimant in the higher category only if she is “within a few
days to a few months” of reaching the older category.5 20 C.F.R.
§ 404.1563(b). Plaintiff seems to argue—relying on what purports
to be an internal Appeals Council document whose provenance is
unknown and, in any event, is not official agency guidance—that
there is a fixed rule that any claimant within six to 12 months
of
the
next
age
category
category (Pl.’s Br. 3-4).
“unable
to
themselves
provide
would
should
be
placed
in
that
higher
However, the agency has stated it is
‘fixed’
reflect
guidelines
a
since
mechanical
such
guidelines
approach
to
the
application of the age categories.” 65 Fed. Reg. 17994, 17999
(2000).
to
As the Sixth Circuit has held, the ALJ had discretion
place
Plaintiff
in
the
higher
age
category,
but
was
not
required to do so. Ellison v. Comm’r of Soc. Sec., 101 F. App’x
994, 996 (6th Cir. 2004) (“This [mechanical application of the
grids] argument is unpersuasive because the ALJ was not required
to place Ellison in an age category that did not include his
actual
age,
even
though
he
borderline cases.” (citing
has
the
discretion
to
do
so
in
Crady v. Sec’y of Health & Human
Servs., 835 F.2d 617, 622 (6th Cir.1987))); see also Bowie v.
Comm’r of Soc. Sec., 539 F.3d 395, 399 (6th Cir. 2008) (quoting
20
C.F.R.
§
404.1563(b))
(“[N]othing
in
this
[regulatory]
language” requiring an ALJ to “‘consider’” using a different age
category “obligates an ALJ to address a claimant’s borderline
12
age situation in his opinion or explain his thought process in
arriving at a particular age-category determination.”).
In any event, Plaintiff has not shown that she has the
vocational
adversities
that
would
justify
application
of
the
higher age category. When a claimant is within a “few days to a
few months” of the older age category, i.e., borderline age, use
of the older age category is not automatic; rather the claimant
must
show
“progressively
more
additional
vocational
adversity(ies)—to support use of the higher age.” See Agency’s
Hearings, Appeals, and Litigation Law Manual (HALLEX1) II-5-3-2,
2003 WL 25498826 (“Absent a showing of additional vocational
adversity(ies) justifying use of the higher age category, the
adjudicator will use the claimant’s chronological age—even when
the time period is only a few days.
The adjudicator need not
explain his or her use of the claimant’s chronological age.”).
In this case, Plaintiff has made no attempt to explain what
additional
justify
vocational
use
of
the
adversities
higher
age
she
believes
category.
But
she
in
has
any
that
event,
additional vocational adversities are not present here. Examples
of additional vocational adversities include minimal literacy in
English and a “history of work in an unskilled job(s) in one
isolated industry or work setting.”
Id. Plaintiff is literate
in English and has a long history of skilled and semiskilled
work
[TR.
47,
263].
Thus,
she
13
has
not
shown
the
additional
vocational adversity necessary to justify use of the older age
category.
Finally,
Plaintiff
argues
that
the
ALJ
should
not
have
relied on the vocational expert’s testimony because the light
jobs that witness identified could not be performed by a person
who
had
to
complete
sit
for
Dictionary
half
of
of
the
day
Occupational
[Pl.’s
Titles
Br.
(DOT)
7-8].
The
entries
for
those jobs do not demonstrate a conflict between the vocational
expert’s
testimony
and
the
DOT.
See
DOT
No.
222.587-038
(Router), 1991 WL 672123l; DOT No. 209.587-034, 1991 WL 671802.
In fact, those entries provide a definition of light work that
clarifies that some light work jobs may require sitting “most of
the time.” Id.
Plaintiff claims the narrative description of these jobs
“fails
to
disclose
any
inference
that
these
jobs
could
performed while sitting for half of the day” [Pl.’s Br. 8].
the
opposite
is
also
true;
nothing
in
those
be
But
descriptions
indicates that they could not be performed while sitting half of
the day.
Under the substantial evidence standard of review,
that second reading that should be respected.
Buxton v. Halter,
246
findings
F.3d
762,
772
(6th
Cir.
2001)
(“The
of
the
Commissioner are not subject to reversal merely because there
exists in the record substantial evidence to support a different
conclusion.
This is so because there is a ‘zone of choice’
14
within which the Commissioner can act, without the fear of court
interference.”
(citations
conflict
the
with
DOT,
omitted)).
the
ALJ
Because
reasonably
there
is
relied
on
no
the
vocational expert’s testimony that a person with Plaintiff’s RFC
could perform the identified jobs obs.
See Russell v. Comm’r of
Soc. Sec., No. 16-3442, 2016 WL 6803729, at *1–2 (6th Cir. Nov.
17, 2016) (“The ALJ properly relied on the [vocational expert]’s
testimony
because
it
was
not
ambiguous
concerning
whether
Russell retained the capacity to work. . . .”).
Finally,
Plaintiff
argues
that
the
ALJ
should
not
have
relied on the jobs identified by the vocational expert because
he did not provide regional job numbers [Pl.’s Br. 8]. But the
correct
inquiry
significant
is
numbers
whether
in
the
there
“national
are
jobs
economy.”
existing
20
in
C.F.R.
§
404.1566. This can be established through either regional or
national
numbers.
Id.
Thus,
“[t]he
Commissioner
is
not
required to show that job opportunities exist within the local
economy.” Harmon v. Apfel, 168 F.3d 289, 292 (6th Cir. 1999);
see also Nation v. Apfel, No. 98-6759, 1999 WL 970302, at *8
(6th Cir. Oct. 15, 1999) (“It is sufficient that the [vocational
expert] identified a significant number of jobs which exist in
the national economy that Plaintiff could perform.”).
While
vocational experts often provide national and local job numbers,
both sets of numbers are not required.
15
The Court finds the ALJ applied the correct legal standards
and substantial evidence supports her factual findings.
Her
decision is AFFIRMED.
Accordingly,
IT IS ORDERED that the Acting Commissioner’s motion for
summary judgment [DE 11] is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s motions for summary
judgment [DEs 8 and 9] be DENIED.
A separate judgment in conformity herewith shall this date
be entered.
This the 5th day of December, 2017.
16
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