Faint v. Commissioner of Social Security Administration
Filing
22
Memorandum Opinion and Order that the decision of the Commissioner denying Faint's applications for disability insurance benefits and supplemental security income be reversed and the matter remanded for further administrative proceedings. (Related docs. # 1 , 12 ). Signed by Magistrate Judge William H. Baughman, Jr., on 08/31/2016. (S,MD)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
KELLY FAINT,
Plaintiff,
v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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CASE NO. 1:15 CV 1392
MAGISTRATE JUDGE
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
ORDER
Introduction
Before me1 is an action by Kelly Paul Faint under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying his applications
for disability insurance benefits and supplemental security income.2 The Commissioner has
answered3 and filed the transcript of the administrative record.4 Under my initial5 and
1
ECF # 12. The parties have consented to my exercise of jurisdiction.
2
ECF # 1.
3
ECF # 8.
4
ECF # 9.
5
ECF # 6.
procedural6 orders, the parties have briefed their positions7 and filed supplemental charts8 and
the fact sheet.9 They have participated in a telephonic oral argument.10
Facts
A.
Background facts and decision of the Administrative Law Judge (“ALJ”)
Faint, who was 43 years old at the time of the administrative hearing,11 has an eleventh
grade education with a GED.12 His past employment experience includes being a tow motor
operator, machine operator, lawn equipment mechanic, customer service representative, and
a coating operator.13
The ALJ, whose decision became the final decision of the Commissioner, found that
Faint had the following severe impairments: affective disorders and anxiety disorders (20
CFR 404.1520(c) and 416.920(c)).14
6
ECF # 10.
7
ECF # 19 (Commissioner’s brief); ECF # 16 (Faint’s brief) ECF # 17-1 (Faint’s
amended brief).
8
ECF # 19-1 (Commissioner’s charts); ECF # 16-1 (Faint’s charts).
9
ECF # 15 (Faint’s fact sheet).
10
ECF # 21.
11
ECF # 15 at 1.
12
Id.
13
ECF #9, (Transcript (“Tr.”) at 28.
14
Tr. at 25.
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After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Faint’s residual functional capacity (“RFC”):
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to perform a full range of work
at all exertional levels but with the following nonexertional limitations: he can
perform simple and repetitive tasks. He can occasionally interact with
supervisors, coworkers, and the public.15
Given that residual functional capacity, the ALJ found Faint incapable of performing
his past relevant work as a tow motor operator, machine operator, lawn equipment mechanic,
customer service representative, and coating operator.16
Based on an answer to a hypothetical question posed to the vocational expert at the
hearing setting forth the residual functional capacity finding quoted above, the ALJ
determined that a significant number of jobs existed locally and nationally that Faint could
perform.17 The ALJ, therefore, found Faint not under a disability.18
B.
Issues on judicial review
Faint asks for reversal of the Commissioner’s decision on the ground that it does not
have the support of substantial evidence in the administrative record. Specifically, Faint
presents the following issues for judicial review:
15
Id. at 26.
16
Id. at 28.
17
Id.
18
Id. at 29.
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•
Whether the ALJ’s assessment of the evidence in light of listing 12.04
is supported by substantial evidence.
•
Whether the ALJ erred in failing to give appropriate weight to the
opinion of the treating mental health provider and erred in relying on
an opinion from a previous hearing when stating Drummond did not
apply.19
For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
not supported by substantial evidence and, therefore, must be remanded.
Analysis
A.
Standards of review
1.
Substantial evidence
The Sixth Circuit in Buxton v. Halter reemphasized the standard of review applicable to
decisions of the ALJs in disability cases:
Congress has provided for federal court review of Social Security
administrative decisions. 42 U.S.C. § 405(g). However, the scope of review is
limited under 42 U.S.C. § 405(g): “The findings of the Secretary as to any fact,
if supported by substantial evidence, shall be conclusive....” In other words, on
review of the Commissioner’s decision that claimant is not totally disabled
within the meaning of the Social Security Act, the only issue reviewable by
this court is whether the decision is supported by substantial evidence.
Substantial evidence is “ ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.’ ”
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
19
ECF # 17-1 at 1.
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conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.20
Viewed in the context of a jury trial, all that is necessary to affirm is that reasonable
minds could reach different conclusions on the evidence. If such is the case, the
Commissioner survives “a directed verdict” and wins.21 The court may not disturb the
Commissioner’s findings, even if the preponderance of the evidence favors the claimant.22
I will review the findings of the ALJ at issue here consistent with that deferential
standard.
B.
Application of standard
Although Faint raises potentially substantive issues concerning the ALJ’s
determination of whether he met Listing 12.04, it is the ALJ’s application of the rule set forth
in Drummond v. Commissioner of Social Security23 that is dispositive and will require a
remand.
Drummond holds that “[a]bsent evidence of an improvement in a claimant’s condition,
a subsequent ALJ is bound by the findings of a previous ALJ.”24 As the Sixth Circuit
20
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
21
LeMaster v. Sec’y of Health & Human Servs., 802 F.2d 839, 840 (6th Cir. 1986);
Tucker v. Comm’r of Soc. Sec., No. 3:06CV403, 2008 WL 399573, at *6 (S.D. Ohio Feb. 12,
2008).
22
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
23
Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997).
24
Id. at 842.
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succinctly stated, “[j]ust as a social security claimant is barred from relitigating an issue that
has been previously determined, so is the Commissioner.”25 Prior to Drummond, the Sixth
Circuit in Denard v. Secretary of the Health and Human Services,26 held that where a prior
finding was that a claimant is not capable of performing his past relevant work, subsequent
ALJ’s are precluded, by estoppel, from reconsidering the issue and finding that the claimant
is capable of performing past relevant work.27
Following these decision, the Social Security Administration (SSA) issued AR 98-3(6)
and 98-4(6) explaining how the SSA would apply Denard and Drummond within the Sixth
Circuit. The SSA rulings state in relevant part:
When adjudicating a subsequent disability claim with an unadjudicated period arising
under the same title of the Act as the prior claim, the adjudicators must adopt such a finding
as from the final decision by the 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 regulations or rulings affecting the finding or the method of arriving at the finding.28
Here, a prior ALJ in March 2010 found that Faint had a RFC to only perform light
work with certain restrictions.29 After noting the existence of this final decision, the current
25
Id.
26
Denard v. Secretary of the Health and Human Services, 907 F.2d 598 (6th Cir.
1990)(per curiam).
27
Id. at 599-600.
28
AR 98-3-(6), 1998 WL 283901 at * 3 (June 1, 1998); AR 98-4(6), 1998 WL 283902
at *3 (June 1, 1998).
29
Tr. at 70.
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ALJ then determined that because of new and material evidence in the record, such as Faint’s
recovery from an upper extremity fracture and a more extensive work history, the “medical
and vocational findings” of the 2010 decision “are not binding.”30 In support of that
conclusion, the ALJ in this case specifically cited Drummond, Denard and AR 98-4(6).31
On that premise, the ALJ then considered, and gave “little weight,” to the functional
opinion of Barbara Wisely, APNR,32 Faint’s treating nurse, noting that Wisely was “not an
acceptable medical source” and that her opinion was not supported by her own treatment
notes.33 He further gave “some weight” to the functional opinion of Manella Link, Ph.D., a
state agency reviewing psychologist, who gave the opinion in September, 2012, or nearly a
year and a half before the hearing.34
In this situation, and specifically asserting that he was lacking “supported and specific
opinions from acceptable medical sources,” the ALJ reached back to the 2010 decision in
Faint’s prior case and “accept[ed]” the mental limitations from the prior administrative law
judge decision.”35
30
Id. at 22.
31
Id.
32
Advanced Practice Registered Nurse. An APRN is a registered nurse with a
master’s, post-master’s or doctoral degree in a nursing specialty and is generally able to
practice without the immediate supervision of a physician. See, www.graduatenursingedu.org
33
Tr. at 27.
34
Id.
35
Id.
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As Faint points out, and as the ALJ’s own words demonstrate, the ALJ here directly
stated that the current record was insufficient for him to make a reasoned, supportable
decision as to Faint’s current mental limitations. Yet, instead of seeking the opinion of a
Medical Expert, or sending Faint to a consultative examiner, the ALJ chose to “accept” the
four-year-old mental limitations findings of the prior ALJ.
This decision is troubling on many levels. First, while an ALJ is not required to utilize
an ME in every case, nor to order a consultative examination, he is given the authority to do
so particularly “when the record before him does not permit him to make a disability
determination.”36 Further, the current ALJ’s decision to “accept” the prior ALJ’s mental
limitations findings37 while also specifically disavowing that the prior RFC finding had any
binding effect38 makes it unclear, at the very least, how this ALJ applied Drummond in the
current circumstance.39 To the extent that the current ALJ relied on any prior mental
limitation finding because it was deemed “binding” within the meaning of Drummond, that
conclusion would be undercut by this ALJ’s explicit statement in the opinion that the prior
“medical ... findings ... are not binding.”40 To the degree that the current ALJ was seeking
36
Brown v. Secretary of Health and Human Services, 911 F.2d 731 at *5 (6th Cir.
1990)(table case)(citation omitted).
37
Tr. at 22.
38
Id. at 27.
39
See, Brogan v. Comm’r of Soc. Sec., 2015 WL 350387 at *14 (N.D. Ohio June 23,
40
Id. at 22.
2015).
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an acceptable source for reaching a conclusion as to Faint’s current mental limitations, a
four-year-old, non-binding opinion from a prior hearing that did not even consider the “new
and material evidence” in the present record does not constitute substantial evidence in
support of the current decision.
As noted, my focus on this issue as sufficient for determination of a remand should
not be understood as precluding examination of the other issues raised here when the matter
is remanded.
Conclusion
For the reasons stated, I find that the decision of the Commissioner here is not
supported by substantial evidence. Therefore, the matter is hereby remanded for further
proceedings consistent with this opinion.
IT IS SO ORDERED.
Dated: August 31, 2016
s/ William H. Baughman, Jr.
United States Magistrate Judge
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