Peck v. Commissioner of Social Security

Filing 23

ORDER REVERSING THE DECISION OF THE COMMISSIONER AND REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G). Signed by Chief Judge S. Thomas Anderson on 9/14/17. (Anderson, S. Thomas)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
EASTERN DIVISION
TENISHA PECK o/b/o A.M., a minor,
Plaintiff,
vs.
COMMISSIONER OF
SOCIAL SECURITY,
Defendant.

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Case No: 1:14-cv-01252-STA-dkv

ORDER REVERSING THE DECISION OF THE COMMISSIONER AND
REMANDING PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(G)
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Plaintiff Tenisha Peck, mother of A.M, a minor, filed this action to obtain judicial review
of Defendant Commissioner’s final decision denying the application of A.M. for childhood
Supplemental Security Income (“SSI”) benefits under Title XVI of the Social Security Act (“the
Act”). The application was denied initially and upon reconsideration by the Social Security
Administration. Plaintiff then requested a hearing before an administrative law judge (“ALJ”),
which was held on April 13, 2013. On May 23, 2013, the ALJ issued a decision, finding that
A.M. was not entitled to benefits. The Appeals Council denied Plaintiff’s request for review,
and, thus, the decision of the ALJ became the Commissioner’s final decision. For the reasons set
forth below, the decision of the Commissioner is REVERSED, and the action is REMANDED
pursuant to sentence four of 42 U.S.C. § 405(g).
Prior to filing the application at issue in this case, Plaintiff filed another claim on behalf
of A.M. (“first application”), which was denied in a written decision on March 28, 2011. The
second application for benefits, which is now under review in this Court, was filed while the first

application was pending before the Appeals Council. When the Appeals Council denied the
request for review of the denial of the first application, Plaintiff filed a complaint in District
Court, civil matter 1:12-cv-01240-JDT, seeking review of the ALJ’s decision. On April 22, 2015,
the Court entered an order affirming the ALJ’s decision on Plaintiff’s first application. The
parties agree that, at the time of the ALJ’s decision on Plaintiff’s second application, there had
been no final decision on the first application.1
Under 42 U.S.C. § 405(g), a claimant may obtain judicial review of any final decision
made by the Commissioner after a hearing to which he or she was a party. The Court “shall have
the power to enter, upon the pleadings and transcript of the record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing.”2 The Court’s review is limited to determining whether
there is substantial evidence to support the Commissioner’s decision3 and whether the correct
legal standards were applied.4 When substantial evidence does not support the ALJ’s factual
findings or when the correct legal standards were not applied, the case can be remanded under
sentence four of 42 U.S.C. § 405(g) for further consideration.”5
Pursuant to sentence four, a District Court may “enter, upon the pleadings and transcript
of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of
1

Plaintiff filed the first application for benefits on March 24, 2009, with an alleged onset date of
February 1, 2009. The second application was filed on May 17, 2011, with an alleged onset date
of November 19, 2009.

2

42 U.S.C. § 405(g).

3

Id.

4

Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997).

5

Faucher v. Secretary, 17 F.3d 171, 175 (6th Cir. 1994).
2

Social Security, with or without remanding the cause for a rehearing.”

The Court may

immediately award Plaintiff benefits “only if all essential factual issues have been resolved and
the record adequately establishes a plaintiff’s entitlement to benefits.”6 “A judicial award of
benefits is proper only [when] the proof of disability is overwhelming or where the proof of
disability is strong and evidence to the contrary is lacking.”7 These factors are not present in this
case, and, therefore, an immediate award of benefits is not appropriate. However, a remand
pursuant to sentence four of § 405(g) is appropriate because all essential issues have not been
resolved and the proper legal rules were not followed.
A.M. was born on November 10, 1996. She attended regular classes at school but was
referred to an alternative school for behavioral problems. She has no work history. She alleges
disability due to Attention Deficit Hyperactivity Disorder (“ADHD”), emotional and behavioral
problems, anxiety, and depression. Because this is a childhood SSI claim, insured status is not in
question.
The ALJ made the following findings: (1) A.M. was an adolescent on the date that the
application was filed and was still an adolescent on the date of the decision; (2) A.M. had not
engaged in any substantial work activity since the application date; (3) A.M. has severe
impairments of intermittent explosive disorder and oppositional defiant disorder (“ODD”);
however, she does not have an impairment listed in, medically equal to, or functionally equal to
one contained in 20 C.F.R. part 404, subpart P, appendix 1; (4) A.M. does not have any

6

Id. at 176 (citations omitted).

7

Id.
3

impairment or combination of impairments that functionally equal the severity of the listings; (5)
A.M. was not disabled at any time since the application was filed.8
The Welfare Reform Act amended certain provisions of the Social Security Act relating
to SSI applications by children as follows:
An individual under the age of 18 shall be considered disabled for purposes of this
title if that individual has a medically determinable physical or mental impairment
which results in marked and severe functional limitations, and which can be
expected to result in death, or which has lasted, or can be expected to last for a
continuous period of not less than 12 months.9
The Social Security Administration (“SSA”) has promulgated final rules implementing this
provision. The rules establish a three step sequential evaluation for determining childhood
disability such that the SSA considers (1) whether the child is working; (2) whether the child has
a medically determinable severe impairment which is expected to result in death, has lasted or is
expected to last for a continuous period of not less than twelve months and, if so, (3) whether the
impairment or combination of impairments meets, medically equals, or functionally equals the
severity of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the
“Listings”).10 A child will be found disabled if he or she has an impairment or combination of
impairments which meet, equal, or functionally equal any impairment listed in 20 C.F.R. Part
404, Subpart P, App. 1, Listing of Impairments.
In the present case, the ALJ determined that A.M. has severe impairments of intermittent
explosive disorder and ODD but does not have an impairment or combination of impairments
that meet or medically equal one of the listed impairments, and she does not functionally equal

8

R. 22 – 34.

9

42 U.S.C. § 1382c(a)(3)(C)(i).

10

20 C.F.R. § 416.924.
4

the listings. Therefore, A.M. was not disabled as defined in the Act since the date of the
application. In his decision, the ALJ acknowledged Plaintiff’s first application on behalf of
A.M., stated that a final decision had been rendered in that case, and determined that, under
Drummond, Dennard, and the related acquiescence rulings, he was “bound by the residual
capacity and other vocational information found in the prior final decision, absent evidence of a
significant change in the claimant’s medical condition during a relevant period.”11
Plaintiff contends that the ALJ erred (1) in applying the res judicata principles announced
in Drummond v. Comm’r of Social Sec., 126 F.3d 837 (6th Cir. 1997), AR 98-4(6), Dennard v.
Sec. of Health & Human Servs, 907 F.2d 598 (6th Cir. 1990), and AR 98-3(6); (2) in his
weighing of the medical evidence; (3) in failing to find that A.M.’s impairments satisfied the
elements of any listing; and (4) in his credibility determination.

Because the Court finds

Plaintiff’s Drummond argument to be persuasive, the Court need not decide Plaintiff’s remaining
arguments.
Plaintiff contends that Drummond, Dennard, AR 98-4(6), and AR 98-3(6) do not apply
generally in childhood SSI cases and are also not applicable in this particular case because the
decision as to A.M.’s first application had not become final at the time of the second ALJ
decision, contrary to the statement made by the ALJ. Because the Commissioner’s brief did not
address these arguments, the Court ordered the Commissioner to file a supplemental brief. The
supplemental brief was filed on September 11, 2017.12 While the Commissioner agrees that
Dennard and AR 98-3(6), which involve determinations of past relevant work and assessment of

11

R. 19.

12

(Comm’r Supp. Br., ECF No. 20.)
5

vocational factors, do not apply in childhood disability cases,13 she contends that Drummond and
AR 98-4(6) do apply.
In Drummond, the Sixth Circuit held that principles of res judicata apply to both Social
Security claimants and the Commissioner.14

Absent evidence of “changed circumstances”

relating to a claimant’s condition, “a subsequent ALJ is bound by the findings of a previous
ALJ.”15 Accordingly, when an ALJ seeks to deviate from a prior ALJ’s decision, “[t]he burden
is on the Commissioner to prove changed circumstances and therefore escape the principles of
res judicata.”16 The SSA issued Acquiescence Ruling 98-4(6) after Drummond:
When adjudicating a subsequent disability claim with an unadjudicated period
arising under the same title of the Act as the prior claim, adjudicators must adopt
such a finding from the 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 or there has been a change in the law, regulations or rulings affecting the
finding or the method for arriving at the finding.17
Thus, when a claimant seeks to avoid application of a prior ALJ’s finding, he or she must
produce evidence demonstrating that his or her condition has worsened since the time of the
prior determination.18
13

(Id. at p. 3.)

14

Drummond, 126 F.3d at 841–42.

15

Id. at 842.

16

Id. at 843.

17

AR 98–4(6), 1998 WL 283902, at *3 (June 1, 1998). Although Drummond was a Title II
case, AR 98-4(6) applies to both Title II and Title XVI disability claims. Id.
18

See, e.g., Caudill v. Comm’r of Soc. Sec., 424 F. App’x 510, 515 (6th Cir. 2011) (holding that
an ALJ was justified, under Drummond, in adopting a previous ALJ’s finding that the claimant
had a limited education because the claimant “introduced no new or additional evidence with
respect to illiteracy versus limited education.”
6

According to the Commissioner, AR 98-4(6) applies “to a finding of a claimant’s residual
functional capacity or other finding required at a step in the sequential evaluation process for
determining disability provided under 20 C.F.R. 404.1520, 416.920 or 416.924.” Because 20
C.F.R. § 416.924 outlines the procedures for determining disability in children, the
Commissioner reasons that Drummond and AR 98-4(6) apply to childhood SSI claims.
However, the Commissioner acknowledges that a final decision had not been made on Plaintiff’s
first application on behalf of A.M. at the time of the second ALJ decision, as required by
Drummond and AR 98-4-(6).
The Commissioner argues that the ALJ’s application of Drummond and AR 98-4-(6) in
the absence of a final decision was harmless error because substantial evidence supports the
second ALJ decision. The Commissioner is correct that judicial review of the denial of a
disability claim contemplates a harmless error analysis,19 and, generally, the Court will affirm the
Commissioner’s decision if is supported by substantial evidence in the administrative record.20
But, even if “substantial evidence otherwise supports the decision of the Commissioner,”
reversal is required when the agency fails to follow its own rules.21

Although in some

circumstances a violation of certain rules may be deemed harmless error,22 those circumstances

19

See Shkabari v. Gonzales, 427 F.3d 324, 328 (6th Cir. 2005) (“No principle of administrative
law or common sense requires us to remand a case in quest of a perfect opinion unless there is
reason to believe that the remand might lead to a different result.”)
20

See, e.g., Cox v. Astrue, 2008 WL 2478226 at *4 (W.D. Ky. June 18, 2008).

21

See Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 544 (6th Cir. 2004). See also Cole v.
Astrue, 661 F.3d 931, 939 – 40 (6th Cir. 2011) (The “ALJ’s failure to follow agency rules and
regulations denotes a lack of substantial evidence, even [when] the conclusion of the ALJ may be
justified based upon the record.”)

22

See, e.g., Wilson, 378 F.3d at 547 (finding that a violation of the [treating physician] rule
might be “harmless error” if (1) “a treating source’s opinion is so patently deficient that the
7

are not present in this case. Therefore, a remand is necessitated for further proceedings so that
the ALJ can apply the proper legal standards.23
Accordingly the decision of the Commissioner is REVERSED, and the action is
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for another hearing consistent
with this order.
IT IS SO ORDERED.
s/ S. Thomas Anderson
S. THOMAS ANDERSON
CHIEF UNITED STATES DISTRICT JUDGE
Date: September 14, 2017.

Commissioner could not possibly credit it;” (2) “if the Commissioner adopts the opinion of the
treating source or makes findings consistent with the opinion;” or (3) when “the Commissioner
has met the goal of § 1527(d)(2) - the provision of the procedural safeguard of reasons—even
though she has not complied with the terms of the regulation.”)
23

C.f, Gay v. Comm’r of Soc. Sec., 520 F. App’x 354, 358 (6th Cir. 2013) (“If an ALJ intends to
reopen prior decisions, he or she should say so, say why, and cite the appropriate regulation that
permits reopening. If an ALJ intends instead to adjudicate only the subsequent period in light of
changed circumstances, he or she should make this approach clear and cite the appropriate cases
and acquiescence rulings. Regardless of which path the ALJs take, they must clearly state their
approach.”)
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