Smith v. Colvin
Filing
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OPINION AND ORDER Signed by U.S. District Judge Lawrence L. Piersol on 9/11/2014. (MWT)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
FILED
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CIV 13-4058
MICHAEL DEAN SMITH,
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Plaintiff,
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OPINION AND ORDER
VS.
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CAROLYNW. COLVIN,
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Commissioner of Social Security,
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Defendant.
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This Court referred the case to United States Magistrate Judge John E. Simko for the purpose
of issuing a Report and Recommendation.
The Magistrate Judge has recommended that the
Commissioner's decision be affirmed and Plaintiffs Complaint be dismissed with prejudice and on
the merits. Plaintiff has filed Objections to the Report and Recommendation. The Plaintiff's
Objections are granted in part and denied in part. Likewise, the Report and Recommendation is
adopted in part and refused in part.
Plaintiff Michael Dean Smith claims benefits from March 2000 to March 2, 2002 and to
January 20, 2005. The Administrative Law Judge (ALJ) in the 2012 Opinion concluded that the
United States Magistrate's 2011 Report and Recommendation, which this Court adopted, precluded
consideration of benefits prior to January 20, 2005. That comment in the Magistrate's Report and
Recommendation was dicta which related to the Magistrate Judge's understanding ofthe ALJ' s 2008
decision.
Subsequently at the 2012 hearing the claimant through replacement counsel submitted
substantial new and material evidence which was received into the hearing record. In addition to
other claims, Plaintiff claims that the 2000 application can be reopened because the Plaintiff had
cognitive deficiencies which precluded him from appealing the adverse ruling on the 2000
Application. There is new and material evidence from both expert and lay witnesses regarding the
traumatic brain injury and its effects upon Michael Smith. That evidence, even though credible, is not
enough to establish a mental incapacity that would allow a reopening of the 2000 claim. The only
other possibility for reopening is not available in that the 2000 claim is beyond the four year window
for constructive reopening.
The December 2002 application was initially denied on April 4, 2003, less than four years
prior to the application filed in 2006 so that is within the four year window conferred by constructive
reopening. Accordingly, the Court will consider only the December 2002 application. Whether res
judicata was applicable because of the Magistrate's dicta that was adopted by this Court is a law
question. The ALJ was misled by that dicta and concluded that it could not consider the claims prior
to 2005. Administrative res judicata is not applicable in this case because new and material evidence
was presented subsequent to the initial determination on the 2002 claim. Since there was new and
material evidence offered and received in this case administrative res judicata will not be applied.
Additional medical evidence was introduced into the record for the 2012 hearing. In addition,
lay witness evidence was also submitted at the 2012 hearing which detailed the functioning problems
of Mr. Smith in the time span following the 2000 accident up to the hearing. This lay witness
evidence was used by the treating psychologist for his opinion, coupled with his own knowledge of
the patient. That combination of evidence meets the admissibility standard stated in Jones v. Chater,
65 F.3d 102, 104 (8th Cir. 1985) and must be considered. That evidence was properly allowed into
the 2012 record, but was not commented upon by the ALJ. The expert opinion was that Smith's
psychological impairment resulting from traumatic brain injury had been listing-level since the
March 2, 2000 injury. AR 687-707. Smith also submitted evidence from Medical Advanced Pain
Specialists dated September 2001 to February 2003, MAPS psychological evaluation dated May 31,
2002, Mayo Clinic evidence dated February to August 2003, ophthalmology evidence dated March
2000 to October 2003, physical therapy evidence for 2003, vocational rehabilitation evidence dated
February 2003, and Minneapolis Clinic ofN eurology evidence dated March 2000 to June 2011. AR
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731-831, 887-891.
The ALJ in the August 22, 2012 decision found that Smith had "severe" impairments in the
form of degenerative disc disease, traumatic brain injury, bilateral carpal tunnel syndrome,
degenerative joint disease, diplopia, mood disorder, and a history of substance addiction disorder and
that Smith had an impairment that met one listed in20 C.F.R. pt. 404, subpt. P, app. 1, as ofJune 21,
2005. With the exception of the substance abuse disorder and mood disorder, Smith had all those
conditions since the time of or soon after his March 2, 2000 injuries. Those injuries from being
knocked 14 or 16 feet into a rock and landing on his head and left side included bifrontal subdural
hemorrhages, hemorrhagic cerebral contusions, subarachnoid hemorrhage, rib fractures, bilateral
pleural effusions, left shoulder injury, lumbar disc injuries, left wrist injury and injuries affecting
vision.
The new and material evidence submitted, along with previously submitted evidence,
establishes that for the time period covered by the 2002 claim, that being March 2, 2002 through
January 20, 2005, the Plaintiff qualifies for Disability Insurance Benefits.
Plaintiff urges that the 2012 decision of the ALJ should be reversed because of a failure to
consider HELLEX regulations. The HELLEX regulations are for internal use of the Social Security
Administration and do not establish a separate basis for reversal in this case. The Court finds Moore
v. Apfel, 216 F.3d 864, 868-869 (9th Cir. 2000)persuasiveon that point and does not basethis award
on that claim of error by the Plaintiff.
Due to the Court finding that the cognitive difficulties from his injury did not prevent Mr.
Smith from appealing, the Court does not find that Smith's due process rights were violated in these
or any of the prior proceedings. There has been no such showing made.
The record convincingly establishes that Michael D. Smith has an impairment that is "severe"
dating from his injury on March 21, 2000 and is entitled to Disability Insurance Benefits from
March 2, 2002 through January 20, 2005, as well as subsequent to 2005 as has been previously
awarded and accordingly those prior benefits are awarded by this opinion. There is no need to
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remand again to the Administrative Law Judge for further proceedings and an immediate granting
benefits is appropriate. Accordingly,
IT IS ORDERED:
1.
That the Report and Recommendation, Doc. 25, is adopted to the extent that
it denies the reopening of the 2000 application for Disability Insurance
Benefits from March 2000 to March 2, 2002, but that result is reached for the
reasons stated herein.
2.
That the Objections to the Report and Recommendation are granted to the
extent that Disability Insurance Benefits are granted for the period from
March 2, 2002 to January 20, 2005 for the reasons stated in this Opinion and
Order.
f.
Dated this \(-day of September, 2014.
BY THE COURT:
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United States District Judge
ATTEST:
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EPUTY
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