McDaniel v. Social Security Administration

Filing 19

OPINION AND ORDER by Magistrate Judge Kimberly E. West affirming the decision of the ALJ.(sjr, Chambers)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
STEVEN L. MCDANIEL,

)
)
)
)
)
)
)
)
)
)

Plaintiff,
v.
Commissioner of Social
Security Administration,
Defendant.

Case No. CIV-16-493-KEW

OPINION AND ORDER

Plaintiff Steven L. McDaniel (the “Claimant”) requests judicial
review of the decision of the Commissioner of the Social Security
Administration (the “Commissioner”) denying Claimant’s application
for disability benefits under the Social Security Act.

Claimant

appeals the decision of the Administrative Law Judge (“ALJ”) and
asserts that the Commissioner erred because the ALJ incorrectly
determined

that

discussed

below,

Claimant
it

is

was
the

not

disabled.

finding

of

this

For

the

Court

reasons

that

the

Commissioner’s decision should be and is AFFIRMED.
Social Security Law and Standard of Review
Disability under the Social Security Act is defined as the
“inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment. . .”
42 U.S.C. § 423(d)(1)(A).
Security

Act

“only

if

A claimant is disabled under the Social
his

physical

or

mental

impairment

or

impairments are of such severity that he is not only unable to do
his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful
work

which

exists

§423(d)(2)(A).

in

the

national

economy.

.

.”

42

U.S.C.

Social Security regulations implement a five-step

sequential process to evaluate a disability claim.

See, 20 C.F.R.

§§ 404.1520, 416.920.1
Judicial review of the Commissioner’s determination is limited
in scope by 42 U.S.C. § 405(g).
two inquiries:
substantial

This Court’s review is limited to

first, whether the decision was supported by

evidence;

standards were applied.

and,

second,

whether

the

correct

legal

Hawkins v. Chater, 113 F.3d 1162, 1164

1

Step one requires the claimant to establish that he is not
engaged in substantial gainful activity, as defined by 20 C.F.R. §§
404.1510, 416.910. Step two requires that the claimant establish that
he has a medically severe impairment or combination of impairments that
significantly limit his ability to do basic work activities. 20 C.F.R.
§§ 404.1521, 416.921. If the claimant is engaged in substantial gainful
activity (step one) or if the claimant’s impairment is not medically
severe (step two), disability benefits are denied. At step three, the
claimant’s impairment is compared with certain impairments listed in 20
C.F.R. Pt. 404, Subpt. P, App. 1. A claimant suffering from a listed
impairment or impairments “medically equivalent” to a listed impairment
is determined to be disabled without further inquiry.
If not, the
evaluation proceeds to step four, where claimant must establish that he
does not retain the residual functional capacity (“RFC”) to perform his
past relevant work.
If the claimant’s step four burden is met, the
burden shifts to the Commissioner to establish at step five that work
exists in significant numbers in the national economy which the claimant
– taking into account his age, education, work experience, and RFC – can
perform. Disability benefits are denied if the Commissioner shows that
the impairment which precluded the performance of past relevant work does
not preclude alternative work. See generally, Williams v. Bowen, 844
F.2d 748, 750-51 (10th Cir. 1988).

2

(10th Cir. 1997)(citation omitted). The term “substantial evidence”
has been interpreted by the United States Supreme Court to require
“more than a mere scintilla.

It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.”
Richardson

v.

Perales,

402

U.S.

389,

401

(1971)

(quoting

Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

The

court may not re-weigh the evidence nor substitute its discretion
for that of the agency.

Casias v. Secretary of Health & Human

Servs., 933 F.2d 799, 800 (10th Cir. 1991). Nevertheless, the court
must review the record as a whole, and the “substantiality of the
evidence must take into account whatever in the record fairly
detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 488 (1951); see also, Casias, 933 F.2d at 800-01.
Claimant’s Background
Claimant was 63 years old at the time of the ALJ’s latest
decision. Claimant completed thirteen years of education. Claimant
is a military veteran who has worked in the past as payroll
technician at a Veterans Administration hospital. Claimant alleges
an inability to work beginning October 23, 2009 due to limitations
resulting from PTSD.
Procedural History
The history of this case is extensive and somewhat tortured.

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Claimant originally filed for disability insurance benefits under
Title II (42 U.S.C. § 401, et seq.) of the Social Security Act on
January 20, 2009.

Claimant’s application was denied and he did not

appeal the decision.
On

October

application.

26,

2009,

Claimant

filed

a

second

Title

II

This application was denied and Claimant did not

appeal the decision.
On

August

application.

11,
The

2011,

Claimant

application

was

filed
denied.

a

third

Title

Claimant

II

sought

reconsideration of the decision and the application was denied on
reconsideration. Claimant did not appeal the reconsidered decision.
On July 14, 2013, Claimant filed a fourth Title II application.
On December 20, 2013, the agency issued a decision finding Claimant
disabled beginning July 5, 2012, the day after the period of time
that was previously adjudicated in a prior denial of an application
filed by Claimant.

Claimant requested reconsideration wherein he

disagreed with the agency’s determination of the date of disability
onset.

The agency reconsidered the decision and affirmed the

disability began on June 5, 2012.

Claimant requested a hearing

before an Administrative Law Judge (“ALJ”).
On April 27, 2015, Claimant appeared with counsel before ALJ
David Engel in Tulsa, Oklahoma for an administrative hearing.
Claimant’s counsel requested that the ALJ reopen Claimant’s prior

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Title II applications and modify the onset date to October 26, 2009.
On June 15, 2015, the ALJ determined that Claimant was disabled
beginning June 5, 2012.

He found no basis for reopening Claimant’s

prior Title II applications.

The Appeals Council denied review on

September 6, 2016. As a result, the decision of the ALJ represents
the Commissioner’s final decision for purposes of further appeal.
20 C.F.R. §§ 404.981, 416.1481.
Decision of the Administrative Law Judge
The ALJ determined that Claimant had not demonstrated good
cause to reopen his prior applications for Title II benefits and
that, under the doctrine of administrative finality, he could not
be determined to be disabled prior to June 4, 2012, the date of the
reconsideration denial of the last prior application for benefits.
As a result, the ALJ entered a partially favorable decision that
Claimant

was

under

a

disability

beginning

June

5,

2012

and

continuing in the future.

Errors Alleged for Review
Claimant asserts the ALJ committed error in (1) failing to
reopen

Claimant’s

prior

two

denials

of

benefits

after

he

demonstrated good cause to do so; and (2) applying res judicata to
the prior decisions denying benefits.

5

Denial of the Reopening of Claimant’s Prior Applications
In

his

decision,

the

ALJ

found

Claimant’s

prior

two

applications could not be reopened because Claimant had failed to
offer good cause for doing so.

He concluded that the findings made

in connection with the application dated August 11, 2011 were final
and binding because Claimant did not appeal timely.

(Tr. 26).

The

ALJ specifically found that Claimant had been advised that he had
received an overpayment from the Social Security Administration in
2014.

He stated that counsel for Claimant “pressed for reopening

the prior cases in an effort to forego claimant’s overpayment
situation – if the prior cases are reopened and (sic) was found
disabled based on those prior applications, despite the lack of new
evidence

to

warrant

rendered moot.”

reopening,

his

overpayment

case

would

be

The ALJ concluded that avoidance of the repayment

of an overpayment was not good cause to reopen a prior application
without new evidence.

(Tr. 17).

This Court’s authority to review a decision of Defendant is
governed by 42 U.S.C. § 405(g) which provides “[a]ny individual,
after any final decision of the Commissioner of Social Security made
after a hearing to which he was a party,. . . may obtain review of
such decision by a civil action[.]” This avenue represents the sole
path to judicial review of a decision made by Defendant.

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42 U.S.C.

§ 405(g).
The governing authority expressly provides that federal courts
lack jurisdiction to review Defendant’s discretionary decision to
decline to reopen previously adjudicated claims for disability
benefits, absent a colorable constitutional claim, because it does
not meet the hearing requirements of § 405(g).
Sanders 430 U.S. 99, 108 (1977).

See Califano v.

The Tenth Circuit has also

recognized the review restrictions and found a decision by Defendant
not to reopen a prior application is unreviewable. See

White v.

Schweiker, 725 F.2d 91, 93 (10th Cir. 1984)(“All circuits that have
considered the question after Sanders have held that a decision of
the

Social

Security

Administration

(SSA)

not

to

reopen

is

unreviewable, whether or not the SSA held a hearing on whether good
cause for the late filing was shown.”).

When the reopening of a

prior application has been expressly denied, the mere reference to
evidence from a prior claim has not been found to be a de facto
reopening of the claim.

See Brown v. Sullivan, 912 F.2d 1194, 1196

(10th Cir. 1990).
The exception noted by the Supreme Court in Califano exists if
a claimant challenges the denial of the reopening of an application
on constitutional grounds. Califano, 430 U.S. at 109. Claimant has
not raised any colorable constitutional claim associated with the

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denial of the reopening of the prior claims.

It appears the basis

provided to justify reopening is one of convenience so that Claimant
may avoid the required repayment of a Social Security overpayment.
Such is not fathomable as a constitutional basis for relief.
Claimant cites to the authority of Taylor v. Heckler, 738 F.2d
1112 (10th Cir. 1984) as the basis for requiring the reopening of
the prior claims.

In Taylor, the Tenth Circuit determined that

judicial review of a decision was denied based upon res judicata but
the judge did not decline to reopen a prior application.

The Court

found this was improper because the merits of the decision had been
reconsidered and effectively reopened so that judicial review was
required

and

appropriate.

Id.

at

1115.

This

case

is

distinguishable from Taylor because (1) the ALJ did decline to
reopen the prior application; and (2) the ALJ found that “good
cause” did not exist such that reopening was warranted.
Additionally, Defendant also asserts she is concerned Claimant
will contend that he had a mental impairment that precluded him from
pursuing

his

administrative

remedies

which

some

courts

determined to rise to a colorable constitutional claim.

have

Defendant

notes that Claimant raised the applicability of Soc. Sec. R. 91-5p
which finds “good cause” to reopen a prior decision “when the
evidence establishes that he or she lacked the mental capacity to
understand the procedures for requesting review.”

8

This regulation

references factors to consider in determining whether a claimant
lacks mental capacity which include (1) inability to read or write;
(2)

lack

of

facility

with

the

English

language;

(3)

limited

education; and (4) any mental or physical condition which limits the
claimant’s ability to do things for him or her self.

Id.

Nothing in the record would indicate that these factors exist
in

Claimant’s

case

or

that

his

mental

capacity

is

impaired.

Psychological examinations of Claimant do not reflect any impairment
of

his

mental

capacity.

He

was

able

to

read

and

follow

instructions, he was of average intelligence, and his fund of
general information was good.

(Tr. 398, 1031).

The diagnosis of

a mental impairment, such as PTSD, and allegations of confusion with
the appellate procedures are not sufficient to establish “good
cause” under Soc. Sec. R. 91-5p.

See Byam v. Barnhart, 336 F.3d

172, 182 (2nd Cir. 2005)(“[A] claimant’s argument that she was so
impaired as to be unable to pursue administrative remedies requires
more than a ‘generalized allegation’ of confusion[.]”).

Claimant

has failed to establish that he lacked the mental capacity to follow
Defendant’s appellate procedures.
Even

if

this

Court’s

limited

jurisdiction

were

properly

invoked, Claimant failed to demonstrate “good cause” to reopen the
prior decision.

Under 20 C.F.R. § 404.988, a prior decision may be

reopened for any reason within one year or within four years of the

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date of the notice of the initial determination if the ALJ finds
good cause as defined in § 404.989.

Further, under § 404.989, the

ALJ will find good cause to reopen a prior application if new and
material evidence is furnished, a clerical error was made in
computing benefits, or the evidence that was considered in the
decision making was clearly erroneous.
Claimant

did

not

establish

reopening the prior decisions.

any

of

the

stated

bases

for

His stated reason for attempting to

do so as related to the ALJ through his counsel - to avoid repayment
of a Social Security overpayment - does not constitute “good cause”
under the regulations.
Claimant’s final argument that the ALJ only relied upon res
judicata

to

deny

reopening

the

prior

decisions

and

that

the

principle should not have been applied is not borne out by the
record.

The ALJ clearly determined Claimant failed to show “good

cause” under the regulations.

(Tr. 18).

Conclusion
The decision of the Commissioner is supported by substantial
evidence and the correct legal standards were applied.

Therefore,

this Court finds, in accordance with the fourth sentence of 42
U.S.C. § 405(g), the ruling of the Commissioner of Social Security
Administration should be and is AFFIRMED.

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IT IS SO ORDERED this 29th day of March, 2018.

______________________________
KIMBERLY E. WEST
UNITED STATES MAGISTRATE JUDGE

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