Davis v. Commissioner of Social Security
Memorandum Opinion and Order that the decision of the Commissioner denying Davis disability insurance benefits and supplemental security income is affirmed. (Related docs # 1 , 13 ). Signed by Magistrate Judge William H. Baughman, Jr on 9/29/17. (H,D)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
COMMISSIONER OF SOCIAL
CASE NO. 5:16 CV 1935
WILLIAM H. BAUGHMAN, JR.
MEMORANDUM OPINION AND
Before me1 is an action by Vickie B. Davis under 42 U.S.C. § 405(g) for judicial
review of the final decision of the Commissioner of Social Security denying her 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
ECF # 13. The parties have consented to my exercise of jurisdiction.
ECF # 1.
ECF # 9.
ECF # 10.
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
Background facts and decision of the Administrative Law Judge (“ALJ”)
Davis, who was fifty-four years old at the time of the administrative hearing,11 has a
high school diploma and graduated from the Cleveland Institute of Medical and Dental
Assistant[s].12 She was previously employed as a phlebotomist at University Hospitals.13
The ALJ, whose decision became the final decision of the Commissioner, found that
Davis had the following severe impairments: status post fracture of left tibula/fibula, anxiety
disorder not otherwise specified, dysthymic disorder, degenerative changes of knees, and
mild carpal tunnel syndrome.14
ECF # 11.
ECF # 18 (Commissioner’s brief); ECF # 17 (Davis’s brief).
ECF # 18-1 (Commissioner’s charts); ECF # 17-1 (Davis’s charts).
ECF # 16 (Davis’s fact sheet).
ECF # INSERT.
ECF # 10, Transcript (“Tr.”) at 35.
Id. at 37.
Id. at 16.
After concluding that the relevant impairments did not meet or equal a listing, the ALJ
made the following finding regarding Davis’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 light work as defined
in 20 CFR 404.1567(b), except she cannot climb ladders, ropes, or scaffolds;
she can occasionally climb ramps and stairs, balance, kneel, crouch and crawl;
she can frequently handle and finger; and she can perform routine tasks in a
low-stress environment (not fast pace, strict quotas, or frequent duty changes),
with superficial interpersonal interactions (20 CFR 404.1569a).15
Given that residual functional capacity, the ALJ found Davis incapable of performing her
past relevant work as a phlebotomist.16 Applying the medical-vocational grids in Appendix 2
of the regulations, the ALJ found Davis not under a disability.17
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 Davis could
perform.18 The ALJ, therefore, found Davis not under a disability.19
Id. at 19.
Id. at 24.
Id. at 25.
Issues on judicial review
Davis 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, Davis
presents the following issues for judicial review:
Whether the ALJ erred when he dismissed Ms. Davis’ claim for
benefits from December 28, 2011 through October 4, 2012 on the basis
of res judicata when the decision denying Ms. Davis’ previous
application for benefits dated July 20, 2012.20
Whether the ALJ erred when he found that Ms. Davis was capable of
performing a range of light work activity when the evidence
demonstrates that the residuals from Ms. Davis’ fracture of her left
tibia/fibula preclude her from performing prolonged walking and
For the reasons that follow, I will conclude that the ALJ’s finding of no disability is
supported by substantial evidence and, therefore, must be affirmed.
Standards of review
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
ECF # 17 at 1.
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
The findings of the Commissioner are not subject to reversal merely
because there exists in the record substantial evidence to support a different
conclusion. This is so because there is a “zone of choice” within which the
Commissioner can act, without the fear of court interference.22
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.23 The court may not disturb the Commissioner’s
findings, even if the preponderance of the evidence favors the claimant.24
I will review the findings of the ALJ at issue here consistent with that deferential
“Prior findings and determinations” made in previous decisions control in any
subsequent hearing “unless there is new and material evidence or a showing of ‘changed
Buxton v. Halter, 246 F.3d 762, 772 (6th Cir. 2001) (citations omitted).
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,
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).
conditions.’”25 As Drummond v. Commissioner of Social Security provides, it is the burden
of the party seeking to escape the res judicata effect of the previous findings to introduce
substantial evidence of the changed conditions.26 Indeed, application of res judicata in the
context of social security proceedings means that a prior finding by the Commissioner is
presumed to remain true in a subsequent hearing, with that presumption subject to rebuttal
by new material evidence of changed conditions.27 Significantly, as Magistrate Judge Limbert
pointed out in Senanefes v. Astrue,28 the issue of the establishment of a change of conditions
that will overcome the res judicata attaching to any prior RFC finding is a separate issue
from the matter of what evidence is needed to support a new RFC finding.29 The party
seeking to avoid the application of res judicata and show changed circumstances must
introduce substantial evidence of that change to overcome the presumption in favor of that
application.30 The burden here, therefore, rests with the Commissioner.
Drummond v. Comm’r of Soc. Sec., 126 F.3d 837 (6th Cir. 1997).
Id. at 842.
Graham v. Astrue, No. CV 09-06046-SS, 2010 WL 1875669, at *8 (C.D. Cal.
May 10, 2010).
Senanefes v. Astrue, No. 4:10-CV-2157, 2012 WL 2576399 (N.D. Ohio July 3,
Id., at *5.
Munford v. Comm’r of Soc. Sec., No. 1:12-CV-2915, 2013 WL 4875073 (N.D. Ohio
Sept. 11, 2013) (report and recommendation (ECF # 27) issued Aug. 8, 2013), citing
Drummond, 126 F.3d at 842.
Application of standards
Davis’s initially argues that the ALJ erred in dismissing her claim for benefits for the
period from December 28, 2011 through October 4, 2012 on the grounds of res judicata.31
She asserts that although a prior application filed on July 30, 2012 was denied on
October 4, 2012, that decision is not part of the current record and the present ALJ did not
consider the reasons why the prior application was denied.32 She contends that because that
prior application remained subject to reopening for reconsideration for “any reason” for a
period of 12 months - or for six months beyond the date of filing of the present application the ALJ’s failure here to consider whether “any reason” existed to reopen the prior
application, as well as the failure to include that decision in the current record, deprives the
res judicata finding of support by substantial evidence.33
In response, the Commissioner argues that absent a constitutional claim this Court has
no jurisdiction to review an agency’s decision regarding reopening a claim.34 To that point,
the Commissioner notes that Davis here raises no allegation that her due process rights were
ECF # 17 at 10-11.
Id. at 10.
Id. at 11.
ECF # 18 at 9 (citing Califano v. Sanders, 430 U.S. 99, 107-08 (1977); Temples v.
Comm’r of Social Security, 515 Fed. App’x 460, 463 (6th Cir. 2013)).
violated, but merely argues that the present finding of res judicata should be reversed
because the prior decision was not on the record.35
In this case the denial at issue was at the initial level of consideration and was not
appealed to the Appeals Council.36 In that regard, under the regulations37 the “initial
determination is binding unless [the claimant requests] a reconsideration within the stated
time period, or we revise the initial determination.”38 This Court may entertain a challenge
to a decision by the Appeals Council denying review only in cases involving a colorable
In this case, Davis never sought a reconsideration of that prior decision by the Appeals
Council and never asked this ALJ to reopen or reconsider. If, as it appears, jurisdiction of this
Court would only arise from alleging a constitutional defect in the administrative proceeding
seeking reconsideration of the prior decision, this Court then lacks that jurisdiction because
there is no administrative reconsideration proceeding that could be claimed to have included
a constitutional error.
Tr. at 14.
20 C.F.R. § 404.905.
Loesch v. Comm’r of Social Security, 2014 WL 1683831, at * 1 (E.D. Mich. April
29, 2014)(quoting 20 C.F.R. § 404.905).
Temple v. Commissioner of Social Security, 515 Fed. App’x 460, 463 (6th Cir.
Moreover, even if Davis did not phrase her allegation as such, the form of it
essentially appears to be a claim that she should be entitled to have the one-year period for
filing a request for reconsideration equitably tolled. So understood, Davis asserts that she
failed to comply with the one-year deadline for seeking reconsideration, and so was
prejudiced by having her current claim dismissed on grounds of res judicata. She reasons that
through no fault of her own, the present ALJ failed to include or discuss the previous
decision in this record and thereby deprived Davis of an opportunity to determine if there
were grounds in the prior decision or in the reasons res judicata was applied here to now
seek reconsideration of that decision.
To state such a claim is to immediately discern its flaws. To begin with, the first
flawed assumption is that Davis did not know and could not know the reasons for the prior
decision unless that decision was included in this decision. There is no evidence that this is
true, given that Davis would have been sent a copy of that decision when it was issued.
Further, the second flawed assumption is that the present ALJ would need to give reasons as
to why he was applying res judicata in this case. As noted above, the regulations make the
original determination binding on subsequent ALJs, without a requirement for stating
This is not a situation where Drummond40 is directly applicable. Drummond, and the
administrative rulings explaining it,41 make it plain that Drummond sets forth the principle
that the Commissioner will be bound by res judicata when he or she has made a decision as
to disability “absent changed circumstances.”42 Here, of course, it is the claimant, not the
Commissioner, who was found to be bound by a prior decision under a different regulation.
And the method for a claimant avoiding the effect of a prior ruling is not a current showing
of changed circumstances, but in seeking a reconsideration of the previous ruling.
Accordingly, there was no error in the ALJ dismissing on grounds of res judicata
claims arising during the period December 28, 2011 through October 4, 2012.
Davis here argues that the ALJ erred in finding that she was not fully credible in her
accounts of purported difficulties in standing and walking, and then made a finding in the
RFC concerning this issue that was without the support of substantial evidence.43 Davis
claims that this finding was also based in part on incorrectly interpreting the notes and
opinions of Dr. Richard Masin, O.D., Davis’s treating physician. Davis asserts that when Dr.
Masin opined in 2012 that she would be capable of walking no more than 2 hours a day until
Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997).
See, Brogan v. Comm’r of Soc. Sec., 2015 WL 350387, at * 12 (N.D. Ohio Jan. 23,
2015)(discussing AR 98-3(6) and AR 98-4(6)).
Brogan, 2015 WL 350387, at * 12 (quoting Drummond, 126 F.3d at 842).
ECF # 17 at 12 (citing tr. at 20).
August 2012, that recommendation was made with the idea that she would continually
improve after her surgery - an assumption Davis now states was not realized.44
The Commissioner contends, among other things, that in addition to Davis’s testimony
and the 2012 opinion of Dr. Masin, the ALJ here gave significant weight to two functional
opinions from state agency reviewing physicians - both given in 2013 - that opined that Davis
was capable of light work with some restrictions.45 The Commissioner further notes that
Davis has not challenged the weight given to these sources and that the RFC in this case is
more restrictive than the opinions of the state agency reviewers.46 The two state agency
reviewers had the benefit of considering “most of [Dr. Masin’s] records and still concluded
that [Davis] could perform light work.”47
Ultimately, as the Commissioner stated, “x-rays showed that [Davis’s] fracture was
healed; her treating physician only placed restrictions on her activity until August 2012; and
two state agency physicians concluded that she could perform a limited range of light
work.”48 Accordingly, and on review of the record as a whole, the RFC finding that Davis
could perform light work with specified restrictions is supported by substantial evidence.
Id. (citing record).
Tr. at 23-24.
ECF # 18 at 13.
Id. at 14 fn. 8.
Id. at 15.
Substantial evidence supports the finding of the Commissioner that Davis had no
disability. Accordingly, the decision of the Commissioner denying Davis disability insurance
benefits and supplemental security income is affirmed.
IT IS SO ORDERED.
Dated: September 29, 2017
s/ William H. Baughman, Jr.
United States Magistrate Judge
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