Ford v. Commissioner of Social Security
Filing
25
MEMORANDUM OPINION AND ORDER by Magistrate Judge Lanny King on 6/9/2017; Because the Commissioner's final decision did not comport with applicable legal standards (Drummond), a remand is required for a new decision. Matter is REMANDED to the Commissioner for a new decision and further administrative proceedings deemed necessary and appropriate by the Commissioner. cc: Counsel (CDR)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF KENTUCKY
PADUCAH DIVISION
CIVIL ACTION NO. 5:16‐CV‐00115‐LLK
DANIEL FORD
PLAINTIFF
NANCY A. BERRYHILL, Acting Commissioner of Social Security
DEFENDANT
v.
MEMORANDUM OPINION AND ORDER
This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to 42
U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability
benefits. The fact and law summaries of Plaintiff and Defendant are at Dockets 19 and 24, and the case
is ripe for determination.
The parties have consented to the jurisdiction of the undersigned Magistrate Judge to
determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. Docket 14.
Due to a lack of evidence of improvement in Plaintiff’s medical condition supporting departure
from the prior administrative law judge’s (ALJ’s) finding that Plaintiff can only occasionally push and pull
with the bilateral lower extremities, the current ALJ’s decision did not comport with applicable legal
standards (Drummond v. Comm’r). Therefore, the Court will REMAND this matter to the Commissioner
for a new decision.
Drummond v. Comm’r
Drummond v. Comm’r, 126 F.3d 837 (6th Cir. 1997) held that the administrative law judge (ALJ)
erred in finding that Drummond had a residual functional capacity (RFC) for medium work in light of the
prior ALJ's finding that Drummond had an RFC for sedentary work. The error was due to a lack of
evidence of improvement in Drummond’s medical condition.
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Drummond was based on principles of fairness (to protect claimants from arbitrary re‐
adjudications of RFCs in subsequent claims) and administrative res judicata. “Just as a social security
claimant is barred from relitigating an issue that has been previously determined, so is the
Commissioner.” Id. at 842.
In adopting Acquiescence Ruling 98‐4(6), 1998 WL 283902, the Social Security Administration
recognized the applicability of Drummond in cases arising within the Sixth Circuit:
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 such a 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.
Read together, Drummond and Acquiescence Ruling 98‐4(6) establish that an ALJ is bound by
the prior ALJ’s RFC finding unless there is new and material evidence of a change (improvement) in the
claimant’s medical condition or a relevant change in the law.
A Drummond error occurred.
On May 3, 2010, while working as a deckhand on a barge, a cable broke and struck Plaintiff in
the left leg. This resulted in a transverse fracture within the mid‐femoral shaft, with some degree of
comminution. The injury required multiple corrective surgeries. Administrative Record (AR), p. 73.
The prior ALJ found that Plaintiff was disabled from May 3, 2010, through November 13, 2012,
but that, as of November 14, 2012, he had recovered sufficiently to perform a significant number of light
jobs in the national economy (office cleaner, laundry worker, doorkeeper/greeter). AR, p. 79.
The prior ALJ found that (beginning on November 14, 2012) Plaintiff is limited to only occasional
pushing/pulling with the bilateral lower extremities, in part, due to a bulging disc at L5‐S1 with possible
left‐sided neural foraminal encroachment and likely impingement of the left S1 nerve root. AR, p. 73.
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The current ALJ identified no evidence that this medical condition had improved such that
Plaintiff can now perform work requiring more than occasional pushing/pulling with the bilateral lower
extremities.
The current ALJ’s decision cited the negative April 2013 examination findings of Michael Meade,
M.D., in support of a conclusion that Plaintiff no longer requires the postural limitations identified by the
prior ALJ (i.e., Plaintiff is no longer limited to occasional stooping, kneeling, crouching, and crawling).
See current ALJ’s decision at AR, p. 10 referring to Dr. Meade’s findings at AR, pp. 313‐317. According to
the ALJ, “[t]he claimant’s comfort with sitting and standing, in addition to his normal range of motion,1
supports the functional capacity finding of no postural limitations, as opposed to the previous ALJ
decision that found postural limitations.” AR, p. 15.
While normal range of motion and comfort with sitting and standing may provide a basis for
discounting the prior RFC finding of postural limitations, they do not address the prior finding of
limitation in ability to push/pull with the bilateral lower extremities. Dr. Meade did not perform any test
or record any observation supporting a departure from the prior finding. On the contrary, Dr. Meade
found that:
The patient has low back pain most likely related to degenerative disc disease although the
patient does have some radiation, numbness, and tingling into the left lower extremity,
surgical intervention most likely will not be of benefit at this time. Considering he does have
lower extremity involvement, I recommend evaluation by a spine surgeon in order to establish
a baseline in case the patient’s condition deteriorates.
(AR, p. 315).
An MRI from February 2014 showed: “L5‐S1: Central local subligamentous disc herniation. This
finding was not present on a previous MRI.” AR, p. 373.2
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In fact, Dr. Meade found some variation from normal range of motion. Plaintiff’s cervical spine extension was 60
degrees out of 75 degrees (normal), lumbar spine flexion was 45 degrees out of 90 degrees, and left knee flexion
was 135 degrees out of 150 degrees. AR, pp. 314‐317.
2
In determining that Plaintiff is limited to occasional pushing/pulling with the lower extremities, the prior ALJ
considered the November 2012 findings of Hongbo Liu, M.D. See prior ALJ’s decision at AR, pp. 76‐78. To the
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There is a lack of new and material evidence supporting departure from the prior ALJ’s finding
that Plaintiff can only occasionally push/pull with the bilateral lower extremities due to a low back
impairment with radicular symptoms. This constituted a Drummond error.
Any additional Drummond error was harmless.
Some Drummond errors are harmless. There are three basic categories of harmless Drummond
errors.
First, even if the ALJ did not identify new and material evidence of a change warranting
departure from the prior RFC, the error was harmless if the current RFC was more claimant‐favorable
than the prior one. See Washington v. Comm’r, No. 3:13‐cv‐00785, WL 975349, at *11 (M.D. Tenn. Mar.
14, 2017) (“Where an ALJ in a subsequent decision renders an RFC finding that is more restrictive than
the ALJ in a prior decision, the claimant has no cause for remand even if the subsequent ALJ failed to
properly apply the preclusive effect of the earlier decision, because any error works to the claimant's
benefit”); Clayton v. Comm’r, No. 2:15‐cv‐12249, WL 5402963, at *3 (E.D. Mich. Sept. 28, 2016)
(“[W]here a later [RFC] is more restrictive than the prior RFC, a Plaintiff is unable to demonstrate the
prejudice or harm necessary to achieve a remand”); Castrovinci v. Comm’r, No. 1:10CV2650, WL 928736,
at *7 (N.D. Ohio Mar. 19, 2012) (“[T]he ALJ in the instant case actually found Plaintiff more limited
exertionally than the ALJ in the prior case due to additional impairments, which differentiates this case
from Drummond”); Whitaker v. Comm’r, No. 08‐120‐HRW, WL 2235999, at *3 (E.D. Ky. July 27, 2009)
(“The Court is somewhat perplexed by Plaintiff's contention as the ALJ in this case found a more
restrictive RFC than that of the 2005 decision. … The Court finds no violation of Drummond”).
Second, although the current RFC may appear to be less claimant‐favorable, in fact, it may be
substantially the same as the prior one in light of the definitions in the Social Security Rulings (SSRs) and
extent the current ALJ relied on Dr. Liu’s findings in support of a finding of medical improvement related to
Plaintiff’s ability to push/pull with the lower extremities, the reliance was unpersuasive. See Rudd v. Comm’r, 531
F. App’x 719, 726 (6th Cir. 2013) (In determining whether there was a Drummond error, the “focus is on the
evidence since the prior ALJ’s decision”).
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other sources – resulting in a harmless Drummond error. See Hill v. Comm’r, No. 1:13‐cv‐90, WL
6119326, at *3 (S.D. Ohio Nov. 21, 2013) ([SSR] 83‐10 defines “sedentary” work as requiring sitting for a
total of 6 hours per 8‐hour workday and entailing no significant stooping. Therefore, “[g]iven [the ALJ’s]
determination that Plaintiff is limited to a restricted range of sedentary jobs, the slight variation from
the prior RFC (i.e., eliminating a requirement that Plaintiff stand and/or walk for no more than 2 hours in
a day, and eliminating stooping and crouching restrictions), could be deemed harmless”); Yates v.
Comm’r, No. 3:14cv00132, WL 2338097, at *8 (S.D. Ohio May 13, 2015) (“[The ALJ’s] assessment of
Plaintiff's [RFC] reasonably precluded climbing ladders and scaffolds [as found by the prior ALJ] by
precluding ‘hazards such as unprotected heights’” and precluded “complex, detailed, and written
instructions” by limiting Plaintiff to “simple tasks”).
Third, a Drummond error may be harmless in light of the vocational testimony and the
requirements of jobs as described in the Dictionary of Occupational Titles (DOT). If the current RFC is
less claimant‐favorable but the jobs relied on by the current ALJ in support of his/her finding of lack of
disability do not require the additional capacity, any error was harmless. See Branham v. Comm’r, No.
07‐158‐GWU, WL 2325197, at *5 (E.D. Ky. June 4, 2008) (“[T]hese more severe mental restrictions were
presented to [the] Vocational Expert [who] identified a significant number of jobs which could be
performed. Therefore, any error by the ALJ in not adopting the earlier mental restrictions would appear
harmless”); Barker v. Comm’r, No. 5:09‐CV‐1171, WL 2710520, at *6 (N.D. Ohio July 7, 2010) (“[A]ny
error with respect to this [fact that the prior RFC limited Plaintiff to no interaction with the public] is
harmless because the VE testified that the three jobs he identified … required no interaction with the
public”); Yates v. Comm’r, No. 3:14cv00132, WL 2338097, at *8 (S.D. Ohio May 13, 2015) (“Plaintiff has
also not demonstrated that the exclusion of crawling or climbing could have plausibly changed the
decision. To the contrary, the [DOT] specifies that the jobs identified by the vocational expert … require
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no crawling or climbing. Consequently, even if [the ALJ] should have included no crawling or climbing,
such error was harmless”).
From a harmless‐error viewpoint, the RFCs in this case differed only with respect to
Plaintiff’s ability to push/pull with the bilateral lower extremities.
The prior ALJ found that Plaintiff has the following RFC:
After careful consideration of the entire record, the undersigned finds that, as of November
14, 2012, the claimant has had the residual functional capacity to perform light work as
defined in 20 CFR 404.1567(b) except that he should only occasionally push and pull with
the bilateral lower extremities. He can occasionally climb ramps and stairs, but should
never climb ladders, ropes, and scaffolds. He can occasionally stoop, kneel, crouch, and
crawl. He should avoid all exposure to hazardous machinery and heights. Further, due to
problems with reading, the claimant would require oral instructions.
(Prior ALJ’s decision, AR, p. 77).
The current ALJ found that Plaintiff has the following RFC:
After careful consideration of the entire record, the undersigned finds that the claimant has
the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and
416.967(b) where the claimant lifts or carries 20 pounds occasionally and 10 pounds
frequently, stands or walks for six of eight hours during the workday, and sits for six of eight
hours during the workday. The claimant’s work is limited to simple, unskilled (SVP 1 or 2)
work.
(Current ALJ’s decision, AR, p. 14).
All of the limitations identified in the first sentence of the current ALJ’s RFC findings, above, are
simply part of the definition of “light” work. See SSR 83‐10, 1983 WL 31251. In other words, the current
ALJ found that Plaintiff can perform the full range of light work (minus the postural and other limitations
found by the prior ALJ) and has the mental limitations described in the second sentence.
For the reasons explained below, from a harmless‐error perspective, the only significant
difference between the RFCs is that the current ALJ departed from the prior ALJ’s finding that Plaintiff
can only occasionally push/pull with the bilateral lower extremities.
The current ALJ found that Plaintiff is not disabled because he retains the ability to perform his
past relevant work as a wire preparation machine tender and other jobs that exist in significant numbers
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in the national economy. AR, pp. 19‐20. Specifically, Plaintiff can perform the jobs of assembler (DOT
706.684‐022, 1991 WL 679050), sorter (DOT 222.687‐022, 1991 WL 672133), and hand packer (DOT
559.687‐074, 1991 WL 683797). Id.
The vocational expert testified that an individual can perform these jobs (assuming he has some
assistance in completing the job applications) without being able to read or write. AR, pp. 57‐58.
According to SSR 96‐9p, 1996 WL 374185, “the ability to hear and understand simple oral instructions” is
sufficient to perform unskilled work. Therefore, in light of the vocational testimony and SSR 96‐9p,
there is no significant difference between the prior ALJ’s finding that Plaintiff “would require oral
instructions” and the current ALJ’s finding that he is “limited to … unskilled … work.”
According to the DOT, the jobs of assembler, sorter, and hand packer require no climbing,
kneeling, crouching, or crawling and do not involve exposure to hazardous machinery and heights (i.e.,
moving mechanical parts, electric shock, high exposed places, radiation, explosives, toxic caustic
chemicals, or other environmental conditions). The assembler and sorter jobs require no stooping, and
the hand packer job requires only occasional stooping.
The administrative record contains no evidence indicating whether Plaintiff’s past relevant work
as a wire preparation machine tender and the jobs of assembler, sorter, and hand packer require more
than occasional pushing/pulling with the bilateral lower extremities.
The only reversible Drummond error, therefore, concerned Plaintiff’s ability to push/pull with
the bilateral lower extremities.
Plaintiff has failed to prove that his intellectual disorder satisfies Listing § 12.05
IQ testing in April 2011 indicated that Plaintiff has a full‐scale IQ of 69. AR, p. 376.
Plaintiff is entitled to a conclusive presumption of disability if, among other things, he has a full‐
scale IQ score of 70 or below, significant deficits in adaptive functioning, and evidence that the low IQ
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score and deficits in adaptive functioning “began prior to … attainment of age 22.” Listing § 12.05(B)(3),
Appendix 1 of the regulations.
The ALJ found that “there were no school records or other evidence that confirm a diagnosis of
[borderline intellectual functioning] or intellectual disability, or a low I.Q. prior to [when] the claimant
turned 22 years old.” ALJ’s decision, AR, p. 13. While Plaintiff does not dispute this finding, he argues
that “[i]t must be kept in mind that the claimant was unrepresented at the hearing before the ALJ. The
ALJ has a responsibility to obtain relevant evidence when evaluating the claim of an unrepresented
claimant. The ALJ failed to do this.” Docket 19, p. 4. The Commissioner insists that – whether he
represented himself or not – the burden of proof was on Plaintiff to show that he satisfied the Listing.
Docket 24, p. 5.
The Court need not resolve this dispute because a remand is required for independent reasons
(Drummond). There is no legitimate why, upon remand, Plaintiff (who is now represented by counsel)
should not be afforded an opportunity to obtain his school records in support of a claim that he is
disabled pursuant to Listing § 12.05.
Conclusions
Because the Commissioner’s final decision did not comport with applicable legal standards
(Drummond), a remand is required for a new decision.3
Therefore, this matter is REMANDED to the Commissioner for a new decision and further
administrative proceedings deemed necessary and appropriate by the Commissioner.
June 9, 2017
3
The evidence is insufficient to support a judicial award of benefits because, even if Plaintiff can only occasionally
push/pull with the lower extremities, the prior ALJ identified a significant number of jobs in the national economy
consistent with that finding. AR, p. 79.
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