McClain v. Social Security, Commissioner of

Filing 22

OPINION and ORDER Denying 19 Defendant's MOTION for Summary Judgment and Granting 12 Plaintiff's MOTION for Summary Judgment and Remanding Pursuant to Sentence Four. Signed by Magistrate Judge Michael J. Hluchaniuk. (THal)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
REGINA Y. McCLAIN,

Case No. 12-11172

Plaintiff,

Michael Hluchaniuk
United States Magistrate Judge

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________/

OPINION AND ORDER GRANTING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT (Dkt. 12), DENYING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT (Dkt. 19),
AND REMANDING PURSUANT TO SENTENCE FOUR
I.

PROCEDURAL HISTORY
A.

Proceedings in this Court

On March 16, 2012, plaintiff filed the instant suit seeking judicial review of
the Commissioner’s unfavorable decision disallowing benefits. (Dkt. 1). The
parties consented to the jurisdiction of the undersigned magistrate judge. (Dkt.
16). This matter is before the Court on cross-motions for summary judgment.
(Dkt. 12, 19). Plaintiff filed a reply in support of her motion. (Dkt. 20). The
Commissioner recently filed an affidavit, which was referenced in its motion but
not initially attached. (Dkt. 21).

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B.

Administrative Proceedings

On July 14, 2008, plaintiff filed an application for disabled widow’s
benefits, alleging disability beginning July 13, 1997. (Dkt. 7-2, Pg ID 43). The
claim was initially disapproved by the Commissioner on April 8, 2008. Id.
Plaintiff requested a hearing and, on April 23, 2009, plaintiff appeared with an
attorney before Administrative Law Judge (ALJ) Andrew G. Sloss, who considered
the case de novo. In a decision dated November 17, 2010, the ALJ found that
plaintiff was not disabled. (Dkt. 7-2, Pg ID 43-53). Plaintiff requested a review of
this decision on December 22, 2010. (Dkt. 7-2, Pg ID 39). The ALJ’s decision
became the final decision of the Commissioner when the Appeals Council, on
February 14, 2012, denied plaintiff’s request for review. (Dkt. 7-2, Pg ID 32-35);
Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 543-44 (6th Cir. 2004).
For the reasons set forth below, the Court GRANTS plaintiff’s motion for
summary judgment, DENIES the Commissioner’s motion for summary judgment,
and REMANDS this action for further proceedings under sentence four.
II.

FACTUAL BACKGROUND
A.

ALJ Findings

The issue before the ALJ was whether plaintiff is disabled under § 202(e) of
the Social Security Act. In addition, the ALJ was required to determine whether
plaintiff is the widow of the deceased, has attained the age of 50, is unmarried, and
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has a disability that began before the end of the prescribed period. The prescribed
period ends the month before the month in which plaintiff attains age 60, or if
earlier, either seven years after the worker’s death or seven years after the widow
was last entitled to survivor benefits, whichever is later. (Dkt. 7-2, Pg ID 43). The
ALJ determined that plaintiff’s prescribed period began on January 11, 2004, the
date the wage earner died. Therefore, plaintiff was required to establish that her
disability began on or before January 31, 2011 to be entitled to disabled widow’s
benefits. (Dkt. 7-2, Pg ID 43, 45).
Plaintiff was 50 years of age at the time of the most recent administrative
hearing, and 38 years old on the alleged onset date. (Dkt. 7-3, Pg ID 79, 51).
Plaintiff has no past relevant work. (Dkt. 7-2, Pg ID 51). The ALJ applied the
five-step disability analysis to plaintiff’s claim and found at step one that plaintiff
had not engaged in substantial gainful activity since the alleged onset date. (Dkt.
7-2, Pg ID 45). At step two, the ALJ found that plaintiff’s degenerative disc
disease, coronary artery disease, borderline intellectual functioning, depressive
disorder, and asthma were “severe” within the meaning of the second sequential
step. Id. At step three, the ALJ found no evidence that plaintiff’s combination of
impairments met or equaled one of the listings in the regulations. (Dkt. 7-2, Pg ID
46). The ALJ concluded that plaintiff has the following residual functional
capacity:
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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) except the claimant must be allowed to
alternate her position from sitting to standing and
standing to sitting for 1-2 minutes every hour. She cannot
constantly push or pull with her upper or lower
extremities and can perform no constant twisting or
pivoting. She can never climb ladders, ropes or scaffolds,
and can occasionally climb ramps or stairs. She can
occasionally balance, stoop, crouch, kneel or crawl. She
is limited to frequent overhead reaching and handling
with her right upper extremity, and must avoid
concentrated exposure to extreme cold, heat and
humidity. She must also avoid concentrated exposure to
irritants such as fumes, odors, dust and gasses. She has
psychological limitations, but retains the capacity to
perform simple routine, 2-step tasks on a sustained basis.
(Dkt. 7-2, Pg ID 47). At step four, the ALJ found that plaintiff had no past relevant
work. At step five, the ALJ concluded that, considering plaintiff’s age, education,
work experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that she can perform. (Dkt. 7-2, Pg
ID 51).
B.

Plaintiff’s Claims of Error

Plaintiff first claims that the hypothetical question posed to the vocational
expert did not accurately reflect her impairments in all significant and relevant
respects and, therefore does not constitute substantial evidence. Plaintiff points to
the opinion of Dr. Douglas, who opined that plaintiff’s social functioning is
reduced. According to plaintiff, the ALJ failed to account for plaintiff’s moderate
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limitation in social functioning in his hypothetical question. Plaintiff contends that
the ALJ gave significant weight to Dr. Menendes’ assessment but failed to explain
why the RFC was less restrictive than that assessment, including the opinion that
plaintiff was restricted to “one-step” instructions.
Plaintiff also argues that the this matter should be remanded pursuant to
Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997) and AR 98-4(6).
Plaintiff points to a prior decision by an ALJ dated April 28, 1998 involving
plaintiff. (Case No. 00-10406, Dkt. 12). In that decision, the ALJ found that
plaintiff was able to perform light work which did not require complex tasks and
only the occasional requirement to bend or squat. Id.
In the current case, plaintiff testified that she broke her right wrist, it was
fused and she cannot bend it. She also testified that she has trouble manipulating
objects, gripping, and grasping and drops things. The ALJ failed to discuss why he
did not find the right wrist fusion to be a severe impairment. Plaintiff also points
out that the current RFC indicates that plaintiff is limited to frequent handling with
her right upper extremity, but the prior denial limits her to only occasionally using
her right hand. Prior medical evidence indicated that plaintiff could make a fist but
had poor grip and newer evidence shows that her right wrist is fused with no range
of motion and decreased grip. Thus, plaintiff says the limitations should be the
same as previously determined. Plaintiff also argues that with her worsening heart
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condition (previously she only had hypertension and now she suffers from
coronary artery disease), she is less able to physically exert herself and therefore,
her RFC should be reduced from light to sedentary.
C.

The Commissioner’s Motion for Summary Judgment

The Commissioner sets forth additional details regarding plaintiff’s
application history. The first application, for supplemental security income (SSI)
benefits under Title XVI of the Social Security Act, was filed on December 5,
1991, and was denied on medical grounds on May 19, 1992. There was no request
for further administrative review. (Dkt. 21, Declaration of John H. Williams). The
second SSI application was filed on August 22, 1996, with a protected filing date
of July 24, 1996. The claim was medically denied on December 12, 1996. Plaintiff
requested a hearing before an administrative law judge, who held a hearing and
denied her claim on April 23, 1998. Plaintiff sought review of that decision in this
Court, but this Court affirmed the agency’s decision as supported by substantial
evidence in Case No. 00-10406. The third SSI application was filed on July 18,
2000, and was medically denied on November 15, 2000, at the initial level. An
administrative law judge granted the application on February 20, 2002, and
plaintiff was paid benefits from June 2000. Plaintiff continued receiving SSI
benefits through November 2004.
In November 2004, plaintiff’s SSI benefits were stopped due to her receipt
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of excess income. Specifically, plaintiff began receiving Surviving Divorced
Mother’s benefits under her late husband’s account as a surviving divorced spouse
of her late husband and she had in her care an entitled child of her late husband
who was younger than 16. Her Surviving Divorced Mother benefits terminated in
June 2007 because the youngest entitled child in her care turned 16. The fourth
SSI application was filed August 29, 2011, and benefits were awarded at the initial
claims level. (Dkt. 21).
The Commissioner contends that the Court should reject plaintiff’s assertion
that Acquiescence Ruling 98-4(6), which implements the Sixth Circuit’s decision
in Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997),
requires remand, for several reasons. First, according to the Commissioner, AR
98-4(6) applies only to the adjudication of “a subsequent disability claim with an
unadjudicated period arising under the same title of the Act as the prior claim.” Id.
(emphasis added). This is consistent with the agency’s res judicata regulation,
which provides that res judicata applies to a previous determination or decision
“under this subpart.” 20 C.F.R. §§ 404.957(c)(1), 416.1457(c)(1). The
Commissioner points out that plaintiff’s prior cases were under Title XVI and
under the regulations contained at 20 C.F.R. Part 416, not under Title II and the
regulations contained at 20 C.F.R. Part 404. Accordingly, the Commissioner
maintains that, under its own terms, AR 98-4(6) does not apply.
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Second, the Commissioner argues that even if AR 98-4(6) would apply to
the prior decisions, the SSA has determined that it does not apply when the prior
decision cannot be located. As the agency’s claim processing manual states, “[i]f
the prior file is lost or has been destroyed and the ALJ or [Appeals Council]
decision cannot be located anywhere in SSA or by the claimant, the AR cannot be
applied.” Program Operation Manual System DI 52705.010. Although plaintiff
has now been able to obtain information about the 1998 denial, this information
came from this Court’s records, not records in the possession of the agency.
According to the Commissioner, it would be inequitable to allow plaintiff to fail to
disclose the prior decision to the ALJ, before whom its introduction would not be
expected to help plaintiff, and instead hold it back for introduction to this Court if
the ALJ’s decision were not favorable.
Third, the Commissioner argues that even if AR 98-4(6) were applicable and
the 1998 decision had been available, the ALJ relied on adequate new and material
evidence to justify his RFC finding. The only way in which the prior RFC finding
was more restrictive than the 2010 RFC finding was in the use of the right hand.
The record shows that surgery had been performed on plaintiff’s wrist in about
2003 (Tr. 187), and the ALJ could view evidence obtained after surgery as more
probative of plaintiff’s current status than evidence that was over a decade old.
The ALJ noted that, at her consultative examination, plaintiff’s neurological
8

examination was intact and that she had a hand grip strength of 20 pounds on the
right. (Tr. 188). She could open a jar, button clothing, write legibly, pick up a
coin, and tie shoelaces with either hand. (Tr. 188). She could make a fist,
although it was not a tight one. (Tr. 190). The opinion of the state agency
physician, which was largely based on the consultative examination report, stated
that plaintiff could frequently (but not constantly) reach, handle, and finger with
her right hand. (Tr. 197). In light of intervening medical treatment, the long gap
between the prior decision and the new decision, and the recent medical evidence,
the Commissioner maintains that the evidence considered by the ALJ would have
met the new and material standard of AR 98-4(6), and that is enough. See Collier
v. Comm’r of Soc. Sec., 108 Fed.Appx. 358, 363 (6th Cir. 2004) (affirming ALJ
decision in a case in which the prior ALJ decision was lost given that there was
substantial evidence to support the ALJ’s conclusion given the new medical
evidence considered by the ALJ).
Plaintiff also argues that the ALJ should have limited her to sedentary work
due to her cardiac impairment, but the Commissioner contends that this argument
does not arise under Drummond or AR 98-4(6) because the prior decision limited
plaintiff to light work. Had AR 98-4(6) been applied, plaintiff would have had
to present new and material evidence showing that her cardiac status since the prior
decision had changed, but then the ALJ would have engaged in the same de novo
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review that he applied here. At the time of her consultative examination, plaintiff
was on blood pressure medication but no other cardiac medicine. (Tr. 187).
Although the consultative examiner noted a murmur, his only cardiovascular
diagnosis was somewhat uncontrolled hypertension. (Tr. 188-89). The murmur
was described as grade II; that is, faint but easily audible with a stethoscope. The
Commissioner also points out that the state agency physician found that plaintiff
could do light work. (Tr. 185). A November 2008 emergency-room visit after an
assault reported normal cardiac examination findings. (Tr. 234). Plaintiff’s
primary care treatment records from Health Delivery, Inc. documented
hypertension, but no cardiac complaints or other abnormalities. (Tr. 258-69).
Thus, the Commissioner asserts that during the earlier portion of the period under
review, there was very little to suggest that plaintiff could not do light work.
While plaintiff had a heart attack in November 2009 and was diagnosed with
new-onset congestive heart failure, on follow-up, a cardiologist described her as
clinically stable and told her that he did not need to see her again for a year. (Tr.
315-16). Plaintiff does not cite any evidence of continued cardiac problems that
spanned a 12-month consecutive period, but assumes that anyone with even
well-treated coronary artery disease should necessarily be limited to sedentary
work. Therefore, the ALJ could conclude, as he did, that plaintiff’s coronary artery
disease was responsive to treatment and thus was consistent with light exertion.
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(Tr. 18). The Commissioner also points out that neither plaintiff’s cardiologist nor
any other medical source placed exertional limitations on plaintiff.
Plaintiff also argues that the ALJ’s residual functional capacity finding did
not adequately account for her mental limitations. However, according to the
Commissioner, the ALJ’s finding is generally consistent with the statements of
both the state agency psychologist and the consultative examiner. The state agency
psychologist’s bottom-line opinion was that plaintiff “retain[ed] the capacity to
perform simple, routine, two-step tasks on a sustained basis.” (Tr. 44, 224). While
the psychologist did make other statements, the Commissioner contends that the
ALJ could reasonably read his comments about reduced social functioning as
prefatory to the psychologist’s translation of plaintiff’s limitations
in the abstract to an assessment of the specific type of jobs that she could perform.
In that view, the state agency psychologist recounted plaintiff’s limitations —
mildly restricted cognition, varied concentration, difficulty with complex tasks, and
reduced social functioning — not to imply that each needed to be accounted for
separately, but instead to support his ultimate conclusion that plaintiff could do
simple, routine, 2-step tasks on a sustained basis.
The Commissioner also points out that the ALJ specifically referred to the
state agency psychologist’s opinion in formulating his hypothetical questions,
including by stating that plaintiff had “psychological limitations.” (Tr. 44). And
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the jobs specified by the vocational expert, such as bench assembler and
production inspector (Tr. 44), are consistent with somewhat reduced social abilities
in that they do not involve significant social demands. Thus, at most, the
Commissioner argues that plaintiff has shown only harmless error. The ALJ gave
“significant” weight to the consultative examiner’s opinion, but stated that it in
some respects overstated plaintiff’s limitations. (Tr. 20). Thus, the Commissioner
maintains that the existence of some tension between the consultative examiner’s
opinion and the ALJ’s RFC finding does not render the latter unsupported by
substantial evidence. And, the consultative examiner stated that plaintiff’s social
skills were “good,” although she “may” have problems dealing with conflict. (Tr.
207). According to the Commissioner, the ALJ could reasonably conclude that the
concerns identified by the consultative examiner concerning stress, difficult
settings, conflict, or abstract thinking (Tr. 207) could be accommodated by the
state agency psychologist’s limitation to work that was simple, routine, and
consisted of no more than 2 steps. While plaintiff correctly observes that the
consultative examiner stated plaintiff could do one-step work while the state
agency psychologist stated she could do two-step work, the Commissioner
contends that she fails to explain why the ALJ was required to adopt the former
opinion in contrast to the latter, particularly given the state agency psychologist’s
expertise in using medical evidence to make assessments about individuals’
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functional abilities.
The Commissioner also points out that the ALJ explained that some of the
consultative examiner’s statements were inconsistent with other evidence,
particularly plaintiff’s activities. In making this explanation, he pointed to
plaintiff’s social activities, such as going to church and interacting with her family.
(Tr. 20). Furthermore, plaintiff reported being able to read the Bible and the
newspaper (Tr. 204), tasks which require some amount of concentration, but
presented as able to recall only two numbers backward and as unable to name any
famous people. (Tr. 205). She also claimed an inability to perform the serial
threes task (i.e., repeatedly subtracting three from a specified number). (Tr. 205).
And, because the consultative examiner noted some problems with effort and
persistence, including a discrepancy between testing on the one hand and plaintiff’s
presentation and ability to express herself on the other (Tr. 206-07), the ALJ could
reasonably look to plaintiff’s acknowledged daily activities as being contrary to the
portions of the mental status examination over which she could exercise control.
Thus, to the extent that the ALJ’s RFC finding was less restrictive than the
consultative examiner’s opinion, the Commissioner contends that the ALJ provided
valid reasons consistent with the record as to why he did not adopt all of the
opinion.
D.

Plaintiff’s Reply
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In reply, plaintiff points out that the application history recited by the
Commissioner brings to light information previously unknown to plaintiff’s
attorney. (Dkt. 20). With this new information, plaintiff asserts that this matter
should be remanded for further proceedings and development because there was an
error of fact and of law that occurred at the initial level, before this case even
reached the ALJ. Specifically, plaintiff points to the February 2002 approval of
benefits. Plaintiff’s SSI benefits were cut-off in November 2004 only because of
her subsequent receipt of excess income, not because of medical improvement.
Plaintiff also points out that when she was approved in 2002, she was a “younger
individual” under the Medical-Vocational Guidelines. In 2008, when she applied
for disabled widow benefits, plaintiff says her SSI benefits should have been
reinstated while the new application was pending.1 In addition, the 2002 decision,
which was favorable to plaintiff, should be produced because it is even more
important than the 1998 denial for comparison under Drummond. Plaintiff also
points out that 20 C.F.R. § 416.994(B)(1)(vii) provides that the Commissioner will
use the “most recent favorable medical decision that you were disabled” as a point

1

While plaintiff has not fully explored this issue on appeal, and therefore, it does not
seem appropriate to decide this issue at this juncture, it appears that plaintiff would not be
entitled to reinstatement. See Messer v. Astrue, 2010 WL 4791956 (E.D. Ky. 2012) (“Once a
claimant’s benefits are terminated, as opposed to merely suspended, he must submit a new
application for benefits subject to the five-step sequential evaluation process.”). Plaintiff does
not contend, and there is no evidence in this record suggesting, that plaintiff’s benefits were
suspended as opposed to terminated.

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of comparison for determining medical improvement.
Plaintiff says the Commissioner is incorrect that Drummond does not apply
because one claim arises under Title XVI and one under Title II. Plaintiff points
out that both Titles arise under the same Title of the Social Security Act - Title 20.
Plaintiff also urges the Court to reject the Commissioner’s “equity” argument
because obviously the Commissioner had knowledge of prior decisions and did not
request them. In summary, plaintiff argues that there was a fully favorable
decision in 2002, leading to the payment of benefits, there was never a medical
review or determination of any medical improvement and yet, plaintiff has to
continue to fight for benefits when she was already determined to be disabled.
III.

DISCUSSION
A.

Standard of Review

In enacting the social security system, Congress created a two-tiered system
in which the administrative agency handles claims, and the judiciary merely
reviews the agency determination for exceeding statutory authority or for being
arbitrary and capricious. Sullivan v. Zebley, 493 U.S. 521 (1990). The
administrative process itself is multifaceted in that a state agency makes an initial
determination that can be appealed first to the agency itself, then to an ALJ, and
finally to the Appeals Council. Bowen v. Yuckert, 482 U.S. 137 (1987). If relief is
not found during this administrative review process, the claimant may file an
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action in federal district court. Mullen v. Bowen, 800 F.2d 535, 537 (6th Cir.1986).
This Court has original jurisdiction to review the Commissioner’s final
administrative decision pursuant to 42 U.S.C. § 405(g). Judicial review under this
statute is limited in that the court “must affirm the Commissioner’s conclusions
absent a determination that the Commissioner has failed to apply the correct legal
standard or has made findings of fact unsupported by substantial evidence in the
record.” Longworth v. Comm’r of Soc. Sec., 402 F.3d 591, 595 (6th Cir. 2005);
Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 528 (6th Cir. 1997). In deciding
whether substantial evidence supports the ALJ’s decision, “we do not try the case
de novo, resolve conflicts in evidence, or decide questions of credibility.” Bass v.
McMahon, 499 F.3d 506, 509 (6th Cir. 2007); Garner v. Heckler, 745 F.2d 383,
387 (6th Cir. 1984). “It is of course for the ALJ, and not the reviewing court, to
evaluate the credibility of witnesses, including that of the claimant.” Rogers v.
Comm’r of Soc. Sec., 486 F.3d 234, 247 (6th Cir. 2007); Jones v. Comm’r of Soc.
Sec., 336 F.3d 469, 475 (6th Cir. 2003) (an “ALJ is not required to accept a
claimant’s subjective complaints and may ... consider the credibility of a claimant
when making a determination of disability.”); Cruse v. Comm’r of Soc. Sec., 502
F.3d 532, 542 (6th Cir. 2007) (the “ALJ’s credibility determinations about the
claimant are to be given great weight, particularly since the ALJ is charged with
observing the claimant’s demeanor and credibility.”) (quotation marks omitted);
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Walters, 127 F.3d at 531 (“Discounting credibility to a certain degree is
appropriate where an ALJ finds contradictions among medical reports, claimant’s
testimony, and other evidence.”). “However, the ALJ is not free to make
credibility determinations based solely upon an ‘intangible or intuitive notion
about an individual’s credibility.’” Rogers, 486 F.3d at 247, quoting Soc. Sec. Rul.
96-7p, 1996 WL 374186, *4.
If supported by substantial evidence, the Commissioner’s findings of fact are
conclusive. 42 U.S.C. § 405(g). Therefore, this Court may not reverse the
Commissioner’s decision merely because it disagrees or because “there exists in
the record substantial evidence to support a different conclusion.” McClanahan v.
Comm’r of Soc. Sec., 474 F.3d 830, 833 (6th Cir. 2006); Mullen v. Bowen, 800
F.2d 535, 545 (6th Cir. 1986) (en banc). 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.” Rogers, 486
F.3d at 241; Jones, 336 F.3d at 475. “The substantial evidence standard
presupposes that there is a ‘zone of choice’ within which the Commissioner may
proceed without interference from the courts.” Felisky v. Bowen, 35 F.3d 1027,
1035 (6th Cir. 1994) (citations omitted), citing Mullen, 800 F.2d at 545.
The scope of this Court’s review is limited to an examination of the record
only. Bass, 499 F.3d at 512-13; Foster v. Halter, 279 F.3d 348, 357 (6th Cir.
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2001). When reviewing the Commissioner’s factual findings for substantial
evidence, a reviewing court must consider the evidence in the record as a whole,
including that evidence which might subtract from its weight. Wyatt v. Sec’y of
Health & Human Servs., 974 F.2d 680, 683 (6th Cir. 1992). “Both the court of
appeals and the district court may look to any evidence in the record, regardless of
whether it has been cited by the Appeals Council.” Heston v. Comm’r of Soc. Sec.,
245 F.3d 528, 535 (6th Cir. 2001). There is no requirement, however, that either
the ALJ or the reviewing court must discuss every piece of evidence in the
administrative record. Kornecky v. Comm’r of Soc. Sec., 167 Fed.Appx. 496, 508
(6th Cir. 2006) (“[a]n ALJ can consider all the evidence without directly
addressing in his written decision every piece of evidence submitted by a party.”)
(internal citation marks omitted); see also Van Der Maas v. Comm’r of Soc. Sec.,
198 Fed.Appx. 521, 526 (6th Cir. 2006).
B.

Governing Law

The “[c]laimant bears the burden of proving his entitlement to benefits.”
Boyes v. Sec’y of Health & Human Servs., 46 F.3d 510, 512 (6th Cir. 1994);
accord, Bartyzel v. Comm’r of Soc. Sec., 74 Fed.Appx. 515, 524 (6th Cir. 2003).
There are several benefits programs under the Act, including the Disability
Insurance Benefits Program (DIB) of Title II (42 U.S.C. §§ 401 et seq.) and the
Supplemental Security Income Program (SSI) of Title XVI (42 U.S.C. §§ 1381 et
18

seq.). Title II benefits are available to qualifying wage earners who become
disabled prior to the expiration of their insured status; Title XVI benefits are
available to poverty stricken adults and children who become disabled. F. Bloch,
Federal Disability Law and Practice § 1.1 (1984). While the two programs have
different eligibility requirements, “DIB and SSI are available only for those who
have a ‘disability.’” Colvin v. Barnhart, 475 F.3d 727, 730 (6th Cir. 2007).
“Disability” means:
inability to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which can be expected to result in death or
which has lasted or can be expected to last for a
continuous period of not less than 12 months.
42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A) (DIB); 20 C.F.R. § 416.905(a) (SSI).
The Commissioner’s regulations provide that disability is to be determined
through the application of a five-step sequential analysis:
Step One: If the claimant is currently engaged in
substantial gainful activity, benefits are denied without
further analysis.
Step Two: If the claimant does not have a severe
impairment or combination of impairments, that
“significantly limits ... physical or mental ability to do
basic work activities,” benefits are denied without further
analysis.
Step Three: If plaintiff is not performing substantial
gainful activity, has a severe impairment that is expected
to last for at least twelve months, and the severe
impairment meets or equals one of the impairments listed
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in the regulations, the claimant is conclusively presumed
to be disabled regardless of age, education or work
experience.
Step Four: If the claimant is able to perform his or her
past relevant work, benefits are denied without further
analysis.
Step Five: Even if the claimant is unable to perform his
or her past relevant work, if other work exists in the
national economy that plaintiff can perform, in view of
his or her age, education, and work experience, benefits
are denied.
Carpenter v. Comm’r of Soc. Sec., 2008 WL 4793424 (E.D. Mich. 2008), citing, 20
C.F.R. §§ 404.1520, 416.920; Heston, 245 F.3d at 534. “If the Commissioner
makes a dispositive finding at any point in the five-step process, the review
terminates.” Colvin, 475 F.3d at 730.
“Through step four, the claimant bears the burden of proving the existence
and severity of limitations caused by her impairments and the fact that she is
precluded from performing her past relevant work.” Jones, 336 F.3d at 474, cited
with approval in Cruse, 502 F.3d at 540. If the analysis reaches the fifth step
without a finding that the claimant is not disabled, the burden transfers to the
Commissioner. Combs v. Comm’r of Soc. Sec., 459 F.3d 640, 643 (6th Cir. 2006).
At the fifth step, the Commissioner is required to show that “other jobs in
significant numbers exist in the national economy that [claimant] could perform
given [his] RFC and considering relevant vocational factors.” Rogers, 486 F.3d at
20

241; 20 C.F.R. §§ 416.920(a)(4)(v) and (g).
If the Commissioner’s decision is supported by substantial evidence, the
decision must be affirmed even if the court would have decided the matter
differently and even where substantial evidence supports the opposite conclusion.
McClanahan, 474 F.3d at 833; Mullen, 800 F.2d at 545. In other words, where
substantial evidence supports the ALJ’s decision, it must be upheld.
C.

Analysis and Conclusions

Generally, principles of res judicata require that the administration be bound
by a prior decision unless a change of circumstances is proven on a subsequent
application. Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997).
In Drummond, the Sixth Circuit held that Social Security claimants and the
Commissioner are barred from re-litigating issues that have previously been
determined at the administrative level. Drummond, 126 F.3d at 842; see also 42
U.S.C. § 405(h) (“The findings and decision of the Commissioner of Social
Security after a hearing shall be binding on all individuals who were parties to such
hearing.”). Drummond mandates that absent evidence that a claimant’s condition
has improved, findings issued by an ALJ as part of a prior disability determination
are binding on an ALJ in a subsequent proceeding. Drummond, 126 F.3d at 841.
The Commissioner bears the burden to prove changed circumstances so as to
escape being bound by the principles of res judicata. Id. at 842-43 (“We reject the
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Commissioner’s contention that the Social Security Administration has unfettered
discretion to reexamine issues previously determined absent new and additional
evidence .... Just as a social security claimant is barred from relitigating an issue
that has been previously determined, so is the Commissioner.”). Acquiescence
Ruling 98-4(6), issued post-Drummond, instructs that the agency “must adopt [the
residual functional capacity finding] from a 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....” The Sixth Circuit applies collateral estoppel to
“preclude reconsideration by a subsequent ALJ of factual findings that have
already been decided by a prior ALJ when there are no changed circumstances
requiring review.” Brewster v. Barnhart, 145 Fed.Appx. 542, 546 (6th Cir. 2005).
In this case, plaintiff was awarded SSI benefits, which were then terminated,
not because of medical improvement, but because her income became too high
based on her receipt of other benefits. Once those benefits were no longer
available, she applied for widow’s disability benefits. She was denied benefits, but
no consideration was given to the 2002 decision regarding her award of SSI
benefits. This case is quite similar to Harris v. Astrue, 2010 WL 3909495 (S.D.
Ohio 2010), adopted by 2010 WL 3909493 (S.D. Ohio 2010). In Harris, the
claimant’s SSI benefits were terminated after five months because the proceeds
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from a workers’ compensation settlement put her over-income. The Court found
that, under Drummond, the Commissioner erred by failing to apply the correct
legal standard, with regard to res judicata, to a prior initial administrative
determination of disability when claimant subsequently filed another application
for SSI. In finding that the case should be remanded to the ALJ on the issue of res
judicata, the Court opined:
The Court of Appeals held in Drummond, “Absent
evidence of improvement in a claimant's condition, a
subsequent ALJ is bound by the findings of a previous
ALJ.” 126 F.3d at 842 (citations omitted). “The burden is
on the Commissioner to prove changed circumstances
and therefore escape the principles of res judicata.”
Drummond, 126 F.3d at 843.
In the present case the Commissioner argues that
Drummond applies only to prior ALJ decisions, not to
other agency decisions. Consequently, according to the
Commissioner, ALJ Armstead was not obligated by
Drummond to discuss or apply res judicata to the prior
disability examiner’s determination that Plaintiff met
Listing 12.04.
The Commissioner’s contention lacks merit. Although
the previous administrative decision was not made by an
ALJ, it did constitute a determination by the Social
Security Administration that Plaintiff met Listing 12.05.
See Tr. 33, 51; cf. 20 C.F.R. § 404.901 (defining
“determination” to include “the initial determination or
the reconsidered determination”). Such determinations
are “subject to the doctrine of administrative res
judicata.” Drummond, 126 F.3d at 841 (citing Draper v.
Sullivan, 899 F.2d 1127, 1130 (6th Cir. 1990)). This
determination, moreover, constituted a final decision
concerning Plaintiff’s entitlement to benefits because it
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resulted in Plaintiff actually receiving SSI. See Tr. 51
(Notice of Award explaining to Plaintiff that she was
both medically and non-medically eligible to receive SSI
and explaining the amount of benefits she would
receive). “When the Commissioner has made a final
decision concerning a claimant’s entitlement to benefits,
the Commissioner is bound by this determination absent
changed circumstances.” Drummond, 126 F.3d at 842.
Harris, at *4-5; see also Miller v. Astrue, 2012 WL 220234 (S.D. Ohio 2012),
adopted by 2012 WL 4504545 (S.D. Ohio 2012). That reasoning applies here.
The Commissioner determined in 2002 that plaintiff was disabled under the same
five-step analysis that was conducted here. Absent evidence of medical
improvement, the Commissioner has not met his burden that res judicata does not
apply.
The undersigned is not persuaded by the Commissioner’s assertion that
Drummond does not apply because AR 98-4(6) only applies if the applications
were made “under the same title.”2 This issue was considered, and rejected, in
Kaufman v. Astrue, 2011 WL 3862350 (N.D. Ohio 2011), adopted by 2011 WL
3862345 (N.D. Ohio 2011). In Kaufman, the court pointed out that AR 98-4(6)
recognizes that “[a]lthough Drummond was a title II case, similar principles also
apply to title XVI. Therefore, this Ruling extends to both title II and title XVI

2

Plaintiff’s argument that both claims arise under Title 20 of the United State Code, and
therefore arise “under the same title” is equally unappealing. It is clear from the Ruling that the
Commissioner was referring to title II and title XVI. As discussed, infra, the Court concludes
that this distinction is neither controlling nor material.

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disability claims.” Id. at *5, quoting AR 98-4(6). The court concluded that while
AR 98-4(6) clearly recognizes that the rule announced in Drummond applies with
equal force to title II and XVI claims, “the Ruling falls short of determining
whether it applies to a title II claim when the previous claim was a title XVI
claim.” Id. However, the court applied Drummond anyway because the
determination is identical under both titles. Id. This Court agrees with Kaufman
and concludes that this is the only reasonable and logical result. Otherwise, the
principles of res judicata and collateral estoppel are essentially gutted and
meaningless.
Additionally, to the extent that the AR is inconsistent with Drummond, this
Court and the Commissioner are required to follow Drummond. As the Harris
court pointed out, the “Commissioner’s Acquiescence Rulings-like the
Commissioner’s Regulations-are not the supreme law of the land. ‘It is,
emphatically, the province and duty of the judicial department, to say what the law
is,’ Marbury v. Madison, 1 Cranch 137, 5 U.S. 137 (1803), [‘]and the
[Commissioner] will ignore that principle at [her] peril.’” Harris, at *5, quoting
Hutchison for Hutchison v. Chater, 99 F.3d 286, 287–88 (8th Cir. 1996) (other
citations omitted) (brackets in Hutchison). Harris questions whether AR 98-4(6) is
consistent with Drummond because the Ruling does not use the phrase
“improvement in a claimant’s condition” when instructing ALJs how to apply
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Drummond. Rather, it allows ALJs to use “new and material evidence relating to
such a [prior] finding ...” to avoid administrative res judicata without considering
whether such evidence also shows improvement in a claimant’s condition. Harris,
at *5. According to Harris, “[t]his leaves an ALJ free to overlook the
Commissioner’s burden, under Drummond, to point to evidence of improvement in
a claimant’s condition.” Id., citing Drummond, 126 F.3d at 841-42.
As noted above, because the 2002 decision did not come to light until the
Commissioner filed his motion for summary judgment in this case, the
Commissioner has not attempted to show that plaintiff’s condition improved since
the 2002 decision awarding benefits.3 While, on appeal, the Commissioner goes
through a lengthy analysis of the medical evidence of record to justify the ALJ’s
RFC and decision to deny benefits, such a justification of the ALJ’s decision is
immaterial without a proper analysis under Drummond at the administrative level.
Blevins v. Astrue, 2012 WL 3149343, *6 (E.D. Ky. 2012) (“It is not enough that
the ALJ relies on new evidence that post-dates the earlier decision to arrive at his
determination; the holding of Drummond requires that such new evidence
demonstrate ‘an improvement in a claimant’s condition.’”). Just as Blevins, there
is no mention of Drummond in the ALJ’s decision and no suggestion that the
3

The Commissioner argues that its manual and rulings state that res judicata will not
apply if the prior ruling cannot be located. This argument was made with respect to the 1998
decision, but not as to the 2002 decision, which is the critical decision at issue, and not part of
this record. Thus, this issue will not be addressed further.

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principles of administrative res judicata were considered. Id. at *6. For this
reason, a remand is required.
Based on the foregoing, the Court GRANTS plaintiff’s motion for summary
judgment, DENIES the Commissioner’s motion for summary judgment, and
REMANDS the action under sentence four to provide the ALJ an opportunity to
specifically address his findings in light of Drummond. The parties have advanced
several additional arguments on appeal, however the Court deems it unnecessary to
resolve these issues until the issue of res judicata is addressed at the administrative
level. See e.g., Blevins, at *6.
IT IS SO ORDERED.
Date: September 13, 2013

s/Michael Hluchaniuk
Michael Hluchaniuk
United States Magistrate Judge

CERTIFICATE OF SERVICE
I certify that on September 13, 2013, I electronically filed the foregoing
paper with the Clerk of the Court using the ECF system, which will send electronic
notification to the following: Mikel E. Lupisella, William L. Woodard, AUSA, and
Jason Scoggins, Social Security Administration.
s/Tammy Hallwood
Case Manager
[phone]
[e-mail]

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