Busdicker v. Commissioner of Social Security

Filing 21

Memorandum Opinion and Order: The decision of the Commissioner is reversed; this case is remanded for reevaluation of the prior Administrative Law Judge's decision and the medical evidence under Drummond and/or AR98-4(6), with clar ification and explanation of whether Drummond applies, and the proper following of the dictates of Drummond and/or AR98-4(6) if the instant Administrative Law Judge determines that those doctrines do apply (Related document 1 ). Signed by Magistrate Judge George J. Limbert on 3/9/16. (S,AA)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

MARCUS J. BUSDICKER,
Plaintiff,
v.
CAROLYN W. COLVIN1,
ACTING COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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CASE NO. 3:14CV2067
MAGISTRATE JUDGE
GEORGE J. LIMBERT
MEMORANDUM OPINION & ORDER

Marcus J. Busdicker (“Plaintiff”) seeks judicial review of the final decision of Carolyn W.
Colvin (“Defendant”), Acting Commissioner of the Social Security Administration (“SSA”),
denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security
Income (“SSI”). ECF Dkt. #1. For the following reasons, the Court REVERSES the ALJ’s decision
and REMANDS the instant case:
I.

PROCEDURAL AND FACTUAL HISTORY
Plaintiff initially filed applications for DIB and SSI on October 17, 2007, alleging disability

beginning May 31, 2005 due to bipolar disorder and manic depression. ECF Dkt. #11 at 261 (“Tr.”).
The applications were denied initially and upon reconsideration, and an ALJ ultimately denied
benefits on September 15, 2009. Tr. at 89-98. Plaintiff did not appeal this decision. ECF Dkt. #15
at 2, fn.1.
Plaintiff filed new applications for DIB and SSI in June of 2010 and these applications were
denied at the initial administrative level in September of 2010. ECF Dkt. #15 at 2, fn.1. Plaintiff
did not appeal the administrative denials of these applications. Id.
On April 11, 2011, Plaintiff filed for DIB and SSI, alleging disability beginning September
11, 2009, due to bipolar disorder, manic depression, attention deficit hyperactivity disorder

1

On February 14, 2013, Carolyn W. Colvin became the acting Commissioner of Social Security,
replacing Michael J. Astrue.

(“ADHD”), anxiety, mood swings, racing thoughts, and having trouble sleeping. Tr. at 237-249,
2842. The SSA denied Plaintiff’s applications initially and on reconsideration. Id. at 105-155.
Plaintiff requested an administrative hearing, which was held on February 27, 2013. Id. at 35, 183190. At the hearing, the ALJ accepted the testimony of Plaintiff, who was represented by counsel,
Plaintiff’s mother, and a vocational expert (“VE”). Id. at 36. On April 25, 2013, the ALJ issued a
decision denying benefits. Id. at 13-27. Plaintiff filed a request for review, which the Appeals
Council denied on July 24, 2014. Id. at 1-9.
On September 17, 2014, Plaintiff filed the instant suit seeking review of the ALJ’s decision.
ECF Dkt. #1. On May 20, 2015, with leave of Court, Plaintiff filed a brief on the merits. ECF
Dkt.#15. On August 17, 2015, with leave of Court, Defendant filed a brief on the merits. ECF Dkt.
#19. Plaintiff filed a reply brief on August 31, 2015. ECF Dkt. #20.
II.

SUMMARY OF RELEVANT PORTIONS OF THE ALJS’ DECISIONS
In his September 15, 2009 decision, the prior ALJ found that while Plaintiff had the severe

impairments of affective disorder, substance abuse disorder, and tendonitis under 20 C.F.R. §§
404.1520(c) and 416.920(c), those impairments, individually or in combination, did not meet or
equal any of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”). Tr.
at 91-92.
The prior ALJ went on to find that Plaintiff had the residual functional capacity (“RFC”) to
perform medium work with the following limitations: simple, routine, repetitive tasks with short
simple instructions and few workplace changes; only occasional interaction with supervisors and
co-workers; only occasional superficial contact with the public; jobs requiring an attention span to
perform simple work tasks for only 2-hour intervals throughout an 8-hour workday; and no highpaced or timed production demands. Tr. at 93. With this RFC and based upon the VE’s testimony,
the ALJ concluded that Plaintiff could not perform his past relevant work as a machine operator,
landscaper or garbage slinger, but Plaintiff was capable of performing other jobs existing in

2

References to the administrative record in this case refer to the ECF docket number of the cited
document and the page number assigned to cited pleading by the ECF system, which can be found in the
search box at the top of the page on the ECF toolbar.

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significant numbers in the national economy, including the representative occupations of hand
packager, order picker or kitchen helper. Id. at 97-98. Consequently, the ALJ found that Plaintiff
had not been under a disability as defined in the SSA and was not entitled to benefits. Id. at 98.
In the most recent ALJ decision dated April 25, 2013, the ALJ determined that Plaintiff, who
was thirty-four years old at the time of the ALJ’s decision and thirty-one years old at the time that
he allegedly became disabled, suffered from bipolar disorder and polysubstance abuse in apparent
remission since October 2011. Tr. at 15. She indicated that she was bound “by certain of the prior
Judge’s findings.” Id. at 13. The ALJ then found that the bipolar disorder and polysubstance abuse
in remission impairments qualified as severe impairments under 20 C.F.R. §§ 404.1520(c) and
416.920(c). Tr. at 15. The ALJ noted that while the prior ALJ found tendonitis to be a severe
impairment, the joint affected was not identified and the record before the current ALJ revealed no
similar diagnosis or treatment. Id. at 16. Moreover, the current ALJ noted that while Plaintiff
alleged knee arthritis as an impairment, no diagnosis or treatment of the arthritis was found in the
record. Id. The current ALJ therefore did not find tendonitis or knee arthritis to be severe
impairments. Id.
The current ALJ further determined that Plaintiff did not have an impairment or combination
of impairments that met or medically equaled one of the impairments in the Listings. Tr. at 15-16.
She went on to find that Plaintiff had the RFC to perform medium work with the following
limitations: the work must have a Specific Vocational Preparation (“SVP”) of 1 to 2; the pace of
productivity is not dictated by an external source over which the claimant has no control such as an
assembly line or conveyor belt; the work must be repetitive from day to day, with few and expected
changes; and the work must have only occasional contact with the general public, co-workers and
supervisory authority. Tr. at 18. With this RFC and based upon the VE’s testimony, the ALJ
ultimately concluded that Plaintiff could perform his past relevant work as a dumping machine
operator and landscape specialist. Id. at 25. The ALJ also found that Plaintiff was capable of
performing other jobs existing in significant numbers in the national economy, including the
representative occupations of stores laborer, industrial cleaner, and hand packager. Id. at 25-26.

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As a consequence, the ALJ found that Plaintiff had not been under a disability as defined in the SSA
and was not entitled to benefits. Id. at 26.
III.

STEPS TO EVALUATE ENTITLEMENT TO SOCIAL SECURITY BENEFITS
An ALJ must proceed through the required sequential steps for evaluating entitlement to

benefits. These steps are:
1.

An individual who is working and engaging in substantial gainful activity
will not be found to be “disabled” regardless of medical findings (20 C.F.R.
§§ 404.1520(b) and 416.920(b) (1992));

2.

An individual who does not have a “severe impairment” will not be found to
be “disabled” (20 C.F.R. §§ 404.1520(c) and 416.920(c) (1992));

3.

If an individual is not working and is suffering from a severe impairment
which meets the duration requirement, see 20 C.F.R. § 404.1509 and
416.909 (1992), and which meets or is equivalent to a listed impairment in
20 C.F.R. Pt. 404, Subpt. P, App. 1, a finding of disabled will be made
without consideration of vocational factors (20 C.F.R. §§ 404.1520(d) and
416.920(d) (1992));

4.

If an individual is capable of performing the kind of work he or she has done
in the past, a finding of “not disabled” must be made (20 C.F.R. §§
404.1520(e) and 416.920(e) (1992));

5.

If an individual’s impairment is so severe as to preclude the performance of
the kind of work he or she has done in the past, other factors including age,
education, past work experience and residual functional capacity must be
considered to determine if other work can be performed (20 C.F.R. §§
404.1520(f) and 416.920(f) (1992)).

Hogg v. Sullivan, 987 F.2d 328, 332 (6th Cir. 1992). The claimant has the burden to go forward
with the evidence in the first four steps and the Commissioner has the burden in the fifth step. Moon
v. Sullivan, 923 F.2d 1175, 1181 (6th Cir. 1990).
IV.

STANDARD OF REVIEW
Under the Social Security Act, the ALJ weighs the evidence, resolves any conflicts, and

makes a determination of disability. This Court’s review of such a determination is limited in scope
by § 205 of the Act, which states that the “findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). Therefore, this
Court’s scope of review is limited to determining whether substantial evidence supports the findings
of the Commissioner and whether the Commissioner applied the correct legal standards. Abbott v.
Sullivan, 905 F.2d 918, 922 (6th Cir. 1990).
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The substantial-evidence standard requires the Court to affirm the Commissioner’s findings
if they are supported by “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Cole v. Astrue, 661 F.3d 931, 937, citing Richardson v. Perales, 402 U.S.
389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (citation omitted). An ALJ’s failure to follow
agency rules and regulations “denotes a lack of substantial evidence, even where the conclusion of
the ALJ may be justified based upon the record.” Cole, supra, citing Blakely v. Comm’r of Soc. Sec.,
581 F.3d 399, 407 (6th Cir.2009) (citations omitted). The Court cannot reverse the decision of an
ALJ, even if substantial evidence exists in the record that would have supported an opposite
conclusion, so long as substantial evidence supports the ALJ’s conclusion. Walters v. Comm’r of
Soc. Sec., 127 F.3d 525, 528 (6th Cir.1997).
V.

LAW AND ANALYSIS
A.

DRUMMOND V. COMMISSIONER OF SOCIAL SECURITY

Plaintiff first complains that the ALJ erred in applying Drummond v. Commissioner of Social
Security, 126 F.3d 837 (6th Cir. 1997) and by failing to explain why Drummond applied. ECF Dkt.
#15 at 14-15. Plaintiff asserts that the long-term record shows that Drummond does not apply as
records show that he has bipolar disorder which impacts his insight and judgment and causes many
of his symptoms to persist even when he is clearly sober. Id. at 15. He further contends that new
and material records of Dr. Funke, Clinical Nurse Specialist (“CNS”) Florke, and CNS David
Bingham show that he has limitations inconsistent with an ability to sustain the mental demands of
work on a regular and continuing basis. Id. at 15. Plaintiff further contends that the ALJ erred in
her evaluation of these opinions in the long-term record. Id.
Drummond stands for the principle that absent evidence of a change in a claimant's condition,
a subsequent ALJ is bound by the findings of a previous ALJ. Drummond, 126 F.3d at 842; see also
Acquiescence Ruling (“AR”) 98-4(6). "When an administrative agency is acting in a judicial
capacity and resolves disputed issues of fact properly before it which the parties have had an
opportunity to litigate, the courts have not hesitated to apply res judicata to enforce repose." United
States v. Utah Const. & Mining Co., 384 U.S. 394, 422 (1966). In Drummond, the Sixth Circuit
looked to whether substantial evidence was introduced to show that Plaintiff's condition changed
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significantly between the two hearing dates. Drummond, 126 F.3d at 843. The Court held that the
Commissioner shoulders the burden of showing a change of circumstances to escape res judicata and
substantial evidence was not introduced in order to find that the claimant’s condition improved
significantly between the two hearings so the subsequent ALJ was bound by the prior ALJ’s
determination. Id. The Drummond Court held that:
Absent evidence of an improvement in a claimant's condition, a subsequent ALJ is
bound by the findings of a previous ALJ. We reject the Commissioner's contention
that the Social Security Administration has unfettered discretion to reexamine issues
previously determined absent new and additional evidence. To allow the
Commissioner such freedom would contravene the reasoning behind 42 U.S.C. §
405(h) which requires finality in the decisions of social security claimants. Just as a
social security claimant is barred from relitigating an issue that has been previously
determined, so is the Commissioner.
Id. at 842. AR 98–4(6), issued post-Drummond, provides 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.” AR 98-4(6). AR 98-4(6) applies
Drummond to a claimant’s RFC “or other findings required at a step in the sequential evaluation
process for determining disability provided under 20 CFR 404.1520, 416.920 or 416.924, as
appropriate, which was made in a final decision by an ALJ or the Appeals Council on a prior
disability claim.” AR 98-4(6). However, 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, 2 L.Ed. 60 (1803), [']and the [Commissioner] will ignore that principle at [her] peril.' ”
Harris v. Astrue, 2010 WL 3909495, at *5 (S.D. Ohio, 2010), adopted by 2010 WL 3909493 (S.D.
Ohio 2010), quoting Hutchison v. Chater, 99 F.3d 286, 287–88 (8th Cir.1996) (other citations
omitted) (brackets in Hutchison).
In the instant case, while the ALJ stated that she was bound by the prior ALJ’s decision, her
decision contradicts the core elements of the prior ALJ’s determination, thus leaving the Court
unclear as to whether she actually found that she was bound by Drummond and/or AR 98-4(6). In
the beginning of her April 25, 2013 decision, the ALJ indicated that she was bound by certain of

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the prior ALJ’s findings pursuant to Acquiescence Rulings 98-3(6) and 98-4(6). Tr. at 13. However,
if Drummond and AR 98-4(6) apply, the ALJ was bound by the all of the prior ALJ’s findings and
did not have the freedom to pick and choose the findings or to modify them. For instance, as to Step
Two of the sequential evaluation, the instant ALJ reexamined the prior ALJ’s determination of which
impairments were severe and found that Plaintiff’s tendonitis was not severe, even though the prior
ALJ found that it was severe. Compare Tr. at 16, 91-92. Further, and regardless of whether only
Drummond applied or if both Drummond and SSR 98-4(6) applied, and the instant ALJ was bound
only by the prior ALJ’s RFC, the instant ALJ’s RFC is different than that of the prior ALJ. The
instant ALJ concluded that her RFC for Plaintiff “is consistent with that of the prior Administrative
Law Judge, although worded differently. This record reveals nothing to warrant deviation from the
prior assessed residual functional capacity.” Id. at 25. The Court agrees that the instant ALJ’s RFC
limitation of Plaintiff to medium work is indeed the same as that of the prior ALJ. Compare Tr. at
18, 93. The Court also agrees that the instant ALJ’s limitation of Plaintiff to a SVP of 1 to 2
corresponds to the prior ALJ’s limitation of Plaintiff to jobs involving simple, routine, repetitive
tasks with short simple instructions. Id. A SVP of 1 to 2 is consistent with unskilled work. S.S.R.
00–4p, 2000 WL 1898704, at *3. The Sixth Circuit has found unskilled work to be defined as work
involving simple, routine, and repetitive tasks. Allison v. Apfel, 229 F.3d 1150 (6th Cir.2000). Both
ALJs have limitations for Plaintiff to jobs involving few workplace changes. Tr. at 18, 93.
However, the Court finds significant differences in the ALJs’ limitations for Plaintiff in pace
and attention span. The prior ALJ specifically found that Plaintiff had the attention span to perform
simple work tasks for two-hour intervals throughout an eight-hour day with no high-paced or timed
production demands. Tr. at 93. The instant ALJ fails to mention these limitations. Rather, she
limited Plaintiff to “work...where the pace of productivity is not dictated by an external source over
which the claimant has no control such as an assembly line or conveyor belt.” Id. at 18. Without
explanation or further clarification in her decision or with the VE at the hearing of this restriction,
the Court is unable to find that this part of the RFC is “consistent with” or similar to the prior ALJ’s
RFC of performing tasks for two-hour intervals throughout an eight-hour day with no high-paced or
time production demands. Moreover, the instant ALJ did not include the “superficial” contact with
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the public restriction determined by the prior ALJ, but rather, she merely limited the contact with the
public to “occasional” without sufficient explanation. The difference in the RFCs is also highlighted
by the fact that the instant ALJ concluded with her RFC for Plaintiff, and with the aid of the VE, that
Plaintiff could return to his past relevant work as a dumping machine operator and landscape
specialist, while the prior ALJ concluded with the RFC that he determined for Plaintiff that Plaintiff
could not return to his past relevant work as a machine operator or landscaper. Id. at 25, 97.
In addition, the jobs relied upon by the ALJs at Step Five were different, except for that of
hand packager. Tr. at 26, 98. The VE at the instant ALJ’s hearing also testified that a employee is
required to be on task at a minimum for at least 80% throughout the workday, which includes already
prescribed breaks. Id. at 82. When Plaintiff’s counsel asked the VE whether an employee who kept
pace 15 to 25% less that than expected by an employer could maintain a job, the VE responded that
this would not be acceptable in competitive employment. Id. at 83. This testimony, coupled with
the instant ALJ’s lack of explanation or clarification of her “external source” limitation and how it
is consistent with or similar to that of the prior ALJ after applying Drummond, leads the Court to
conclude that the ALJ did not follow the dictates of Drummond.
Further highlighting the unclear stance taken by the instant ALJ as to Drummond and/or AR
98-4(6) is her review of the medical evidence. She reviewed the medical evidence from after the
prior ALJ’s decision, but rather than determining whether it constituted new and material evidence
pertinent to a particular finding or a change in circumstances, the instant ALJ concludes that she is
bound by the prior findings but she then undertakes a new sequential analysis with a RFC, Step Four
and Step Five findings different from that of the prior ALJ. This undertaking without further
explanation or clarification is confusing in that in one breath the instant ALJ determines that she is
bound by the prior ALJ’s determinations, but she then modifies those prior findings and conducts
her own sequential analysis.
Accordingly, the Court REMANDS the instant case in order for the ALJ to reevaluate the
evidence and determine whether Drummond and/or AR 98-4(6) applies and to clearly and
sufficiently follow the dictates of Drummond. Further, upon remand, the ALJ should provide more

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than a passing statement as to why she was bound by Drummond in the first place, if, upon remand,
she determines that she is still so bound.
B.

PLAINTIFF’S REMAINING ASSERTIONS OF ERROR

Plaintiff also asserts that the ALJ’s RFC was erroneous because she failed to properly analyze
the opinions of his former treating psychiatrist Dr. Funke and Certified Nurse Specialists Floke and
Bingham. ECF Dkt. #15 at 15-22. He additionally contends that the ALJ erroneously dismissed the
fact that Plaintiff was living at Potter’s Hand, a restoration center in rural Ohio, which should have
been considered in both the “C” criteria of the Listings in 12.00 and at other steps of the sequential
evaluation. Id. at 23.
The Court declines to address these subsequent issues in light of the Court’s remand of the
instant case for clarification and explanation of whether Drummond and/or AR 98-4(6) applies and
proper following of the dictates of Drummond if it is determined that it does indeed apply.
VI.

CONCLUSION
For the foregoing reasons, the Court REVERSES the Commissioner’s decision and

REMANDS the instant case for reevaluation of the prior ALJ’s decision and the medical evidence
under Drummond and/or AR 98-4(6), with clarification and explanation of whether Drummond
applies, and the proper following of the dictates of Drummond and/or AR 98-4(6) if the instant ALJ
determines that those doctrines do apply.
DATE: March 9, 2016
/s/George J. Limbert
GEORGE J. LIMBERT
UNITED STATES MAGISTRATE JUDGE

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