Kidd v. SSA

Filing 31

MEMORANDUM OPINION & ORDER: For the reasons discussed in the Courts October 6, 2016, Memorandum Order & Opinion, and those further articulated here and during the hearing held this date, the plafs fail to establish any of the necessary factors for injunctive relief. Accordingly, the plafsmotions for injunctive relief have been denied. [No. 7: 16-178, [Record No. 22]; and No. 7: 16-220, Record No. 23 By operation of the February 23, 2017, Order entered in both actions, these matters are now STAYED pending the Sixth Circuits decision in Perkins or other substantially similar matters. Signed by Judge Danny C. Reeves on 2/24/17.(MJY)cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
SOUTHERN DIVISION
(at Pikeville)
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KIMBERLY MICHELLE HAYDEN,
Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant,
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MARSHA FLO KIDD
Plaintiff,
V.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant,
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Civil Action No. 7: 16-178-DCR

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Civil Action No. 7: 16-220-DCR

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MEMORANDUM OPINION AND ORDER AFFIRMING
THE DENIAL OF INJUNCTIVE RELIEF
The plaintiffs in both of the above-captioned actions moved the Court to issue
injunctive relief in their favor. [Plaintiff Hayden in Civil Action No. 7: 16-178, Record No.
22; and Plaintiff Marsha Kidd in Civil Action No. 7: 16-220, Record No. 23] A joint hearing
was held on this date. No evidence or testimony was presented by the parties. At the
conclusion of the hearing, the undersigned denied the motions in each case. This memorandum

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supplements the oral findings and conclusions announced by the Court at the conclusion of
today’s hearing.
I. BACKGROUND
Plaintiff Kimberly Hayden is from Johnson County, Kentucky, and claims to suffer
from osteoarthritis, sciatica, dysthymia, and panic disorder (agoraphobia). Hayden was
originally represented by attorney Eric Conn. She was awarded Supplemental Security Income
following a favorable ruling by Administrative Law Judge (“ALJ”) David Daugherty on
October 8, 2010. Hayden was notified by a letter dated May 18, 2015, that the Social Security
Administration would redetermine her entitlement to benefits based on reason to believe that
fraud was involved in her application and subsequent award.
On April 14, 2016, ALJ Jerry Faust concluded that Hayden had not been under a
disability from the alleged onset date. The Appeals Council affirmed this decision on June 7,
2016. Hayden filed her Complaint on August 11, 2016, alleging that the Commissioner
violated her right to due process under the Fifth Amendment of the United States Constitution
in redetermining her benefits, violated provisions of Social Security Act, and violated the
Administrative Procedure Act. She also claims that ALJ Faust’s decision was not supported
by substantial evidence.
On January 13, 2017, the Commissioner moved for partial summary judgment based
on this Court’s decision in Carter v. Colvin, -- F. Supp. 3d --, Civ. A. No. 0: 16-17-DCR, 2016
WL 6794790 (E.D. Ky. Nov. 15, 2016) (finding that similarly-situated plaintiffs were not
denied due process of law in the redetermination proceedings, and finding no statutory
violations). [Record No. 18] On February 5, 2017, the plaintiff filed a motion to remand [No.
7: 16-178, Record No. 21], and a motion for a preliminary injunction [No. 7: 16-178, Record
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No. 22]. Thereafter, on February 21, 2017, the Commissioner filed a motion to stay pending
decision in the Sixth Circuit. [No. 7: 16-178, Record No. 28] And on February 23, 2017, the
matter was stayed—save the plaintiff’s motion for a preliminary injunction—pending the Sixth
Circuit’s resolution of the related appeals. [No. 7: 16-178, Record No. 29]
Plaintiff Marsha Kidd is also from Johnson County, Kentucky. Kidd suffers from a
torn rotator cuff and impingement syndrome. She was also represented by attorney Eric Conn
and was awarded Disability Insurance benefits and Supplemental Security Income following
a favorable ruling by ALJ David Daugherty on January 16, 2007. Kidd was notified by a letter
dated May 18, 2015, that the Social Security Administration would redetermine her entitlement
to benefits based on reason to believe that fraud was involved in her application.
On May 23, 2016, ALJ William Wallis determined that Kidd had not been under a
disability from the alleged onset date. The Appeals Council affirmed his decision on July 27,
2016. Kidd filed a Complaint on September 30, 2016, alleging that the Commissioner violated
her right to due process under the Fifth Amendment of the United States Constitution in
redetermining her benefits, violated provisions of Social Security Act, and violated the
Administrative Procedure Act. She also claims that ALJ Wallis’ decision was not supported
by substantial evidence.
On December 15, 2016, the Commissioner moved for partial summary judgment based
on this Court’s decision in Carter v. Colvin, -- F. Supp. 3d - -, Civ. A. No. 0: 16-17-DCR, 2016
WL 6794790 (E.D. Ky. Nov. 15, 2016) (finding that similarly-situated plaintiffs were not
denied due process of law in the redetermination proceedings, and finding no statutory
violations). [No. 7: 16-220, Record No. 17] On January 9, 2017, the plaintiff filed a response
in opposition to the motion for partial summary judgment [No. 7: 16-220, Record No. 22] and
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a motion for a preliminary injunction [No. 7: 16-220, Record No. 23]. On February 23, 2017,
the matter was stayed—save the plaintiff’s motion for a preliminary injunction—pending the
Sixth Circuit’s resolution of the related appeals. [No. 7: 16-220, Record No. 29]
For the reasons stated in this Court’s related October 6, 2016, Memorandum Opinion
and Order denying injunctive relief [See Carter v. Berryhill, Ashland Civil Action No. 0: 16017, Record No. 24; Griffith v. Berryhill, Pikeville Civil Action No. 7: 16-101, Record No.
34], and for the reasons discussed herein, the plaintiffs have not met the burden to obtain
injunctive relief.
II. DISCUSSION
In resolving the pending motions in these two cases, the Court incorporates in full the
October 6, 2016, Memorandum Opinion and Order referenced above. As discussed in that
opinion, preliminary injunctions are “extraordinary and drastic remed[ies] . . . never awarded
as of right.” Platt v. Bd. of Comm'rs on Grievances & Discipline of Ohio Supreme Court, 769
F.3d 447, 453 (6th Cir. 2014) (quoting Munaf v. Geren, 553 U.S. 674, 689–90 (2008)). A
plaintiff seeking injunctive relief must show, either individually or in combination, that: (1) he
or she is likely to succeed on the merits; (2) he or she is likely to suffer irreparable harm in the
absence of preliminary relief; (3) the balance of equities tips in his or her favor, and; (4)
issuance of injunctive relief is in the public interest. Platt, 769 F.3d at 453 (quoting Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008)).
a. The Likelihood of Success on the Merits
As other plaintiffs have alleged in related proceedings, the plaintiffs in the present cases
allege various grounds for relief, including violations of the Due Process Clause of the Fifth
Amendment, violations of the Social Security Act, and violations of the Administrative
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Procedures Act.

In seeking injunctive relief, they rely heavily on assertions that the

Commissioner failed to produce complete administrative records for the redetermination of
their benefits. The plaintiffs point to the lack of an exhibit list from ALJ Daugherty’s original
favorable decisions as strong evidence of an incomplete record. Further, Kidd suggests a lack
of “non-disability documents in the record[], except those that were generated by the
Commissioner in its redetermination process.” [No. 7: 16-220, Record 23-1 at 3] Hayden
alleges that several “jurisdictional documents” were missing from the record and that the
Commissioner provided a “reconstructed record.” [No. 7: 16-178, Record No. 21 at 6] Hayden
further points to the absence of documents from a successful continuing disability review in
2013-14. [No. 7: 16-178, Record No. 22-1 at 3]
In response, the Commissioner contends in convincing fashion that Kidd’s complete
file was submitted.

Regarding Hayden, the Commissioner alleges that any record not

reproduced, including continuing deniability evaluation records, were not relevant to the
redetermination.
As the Court explained earlier and again during the hearing held this date, for the loss
of administrative records to constitute a due process violation, those records must be vital to
the plaintiff’s claim. See Wells v. Astrue, No. CIV. A. 09-32-GWU, 2009 WL 5214488, at *1
(E.D. Ky. Dec. 23, 2009) (citing Energy West Mining Company v. Oliver, 555 F.3d 1211, 1270
(10th Cir. 2009)). But here, neither plaintiff identifies any record of substance that is missing
from their file. The absence of an exhibit list is not proof that substantive evidence is missing,
but may suggest that an exhibit list was never produced. To obtain preliminary relief, a
plaintiff must show likely success on the merits of their claims. The plaintiffs establish nothing
more than speculation.
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b. Irreparable Harm
The plaintiffs also contend that they have suffered irreparable injury; however, neither
alleges in any detail what that harm entails. Hayden claims that her Medicaid insurance flows
from her Social Security benefits, and Kidd alleges the same for her Medicare insurance. To
be sure, the loss of health insurance may constitute per se irreparable harm, but only where the
plaintiff alleges a critical need for healthcare. See Carabillo v. ULLICO Inc. Pension Plan &
Trust, 355 F. Supp. 2d 49, 54 (D.D.C. 2004). Such claims are not made nor demonstrated in
either case currently before the Court. Further, neither plaintiff alleges that the benefits they
seek to have restored were their sole source of income.
c. Balance of the Equities and the Public Interest
The plaintiffs have not distinguished themselves from other plaintiffs who sought but
were denied preliminary injunctions based on the same legal arguments. Now, as before, the
equites and public interest weigh against injunctive relief.
III.

CONCLUSION

For the reasons discussed in the Court’s October 6, 2016, Memorandum Order and
Opinion, and those further articulated here and during the hearing held this date, the plaintiffs
fail to establish any of the necessary factors for injunctive relief. Accordingly, the plaintiffs’
motions for injunctive relief have been denied. [No. 7: 16-178, Record No. 22; and No. 7: 16220, Record No. 23] By operation of the February 23, 2017, Order entered in both actions,
these matters are now STAYED pending the Sixth Circuit’s decision in Perkins (6th Cir. No.
17-502), Hicks (6th Cir. No. 17-5206), or other substantially similar matters.

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This 24th day of February, 2017.

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