Taylor v. Colvin
Filing
23
MEMORANDUM OPINION. Signed by Magistrate Judge Pamela Meade Sargent on 02/21/2018. (Bordwine, Robin)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION
LARRY KERMIT TAYLOR,
Plaintiff
v.
NANCY A. BERRYHILL,1
Acting Commissioner of
Social Security,
Defendant
)
)
)
)
)
)
)
)
)
)
Civil Action No. 1:16cv00044
MEMORANDUM OPINION
BY: PAMELA MEADE SARGENT
United States Magistrate Judge
I. Background and Standard of Review
Plaintiff, Larry Kermit Taylor, (“Taylor”), filed this action challenging the
final decision of the Commissioner of Social Security, (“Commissioner”),
determining that he was not eligible for disability insurance benefits, (“DIB”),
under the Social Security Act, as amended, (“Act”), 42 U.S.C.A. § 423 (West
2011), following a redetermination hearing, held pursuant to 42 U.S.C. § 405(u).
Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g). This case is before the
undersigned magistrate judge upon transfer pursuant to the consent of the parties
under 28 U.S.C. § 636(c)(1).
In Counts I through VII of his Complaint, Taylor challenges the legality of
the procedure used to redetermine his eligibility for DIB benefits pursuant to 42
U.S.C. § 405(u). In these counts, Taylor argues that the redetermination procedure
violated his due process rights under the Fifth Amendment, the Administrative
1
Nancy A. Berryhill became the Acting Commissioner of Social Security on January 23,
2017. Berryhill is substituted for Carolyn W. Colvin, the previous Acting Commissioner of
Social Security.
-1-
Procedures Act, the Social Security Act and the Social Security regulations. He
also argues that the redetermination did not occur “immediately” as required by 42
U.S.C. § 405(u). In Count VIII of his Complaint, Taylor argues that the
Commissioner’s decision that he was not disabled was not supported by substantial
evidence.
The record shows that Taylor filed an application for DIB on July 1, 2010,
alleging disability as of June 23, 2010. (Record, (“R.”), at 263-66.) He hired Eric
C. Conn, a then-prominent Social Security practitioner in the region, as his
attorney. When Taylor’s claim was initially denied on August 18, 2010, he sought
reconsideration. (R. at 115-26.) Thereafter, on October 20, 2010, Taylor’s request
for reconsideration also was denied. (R. at 127-29.) Taylor then requested a
hearing before an Administrative Law Judge, (“ALJ”). (R. at 134.) On January 7,
2011, Taylor underwent a consultative examination by Dr. Srini Ammisetty, M.D.,
arranged by Conn. (R. at 525-27.) Taylor was awarded DIB benefits by decision
dated February 2, 2011, by ALJ David B. Daugherty and entered without a
hearing. (R. at 9, 106-09.) ALJ Daugherty’s favorable decision was based, in part,
on the examination and report of Dr. Ammisetty.
On May 12, 2015, the Social Security Administration’s, (“SSA” or
“Agency”), Office of the Inspector General, (“OIG”), informed SSA that it had
reason to believe fraud was involved in applications for benefits for approximately
1,800 individuals, including Taylor, whose cases involved evidence from Bradley
Adkins, Ph.D., Dr. Srini Ammisetty, M.D., Dr. Frederic Huffnagle, M.D., or Dr.
David P. Herr, D.O., dated between January 2007 and May 2011. (R. at 337.) More
specifically, OIG had reason to believe that Conn, or his law firm, submitted
precompleted “template” residual functional capacity forms, some of which were
from Dr. Ammisetty, between January 2007 and May 2011, in support of these
-2-
individuals’ applications for benefits. On May 18, 2015, the Appeals Council
informed Taylor it was redetermining the decision granting him DIB benefits on or
before February 2, 2011. (R. at 153-56.) The Appeals Council further notified
Taylor that the OIG directed it to disregard any evidence from Dr. Ammisetty
when that information was submitted by Conn or representatives associated with
his law firm. (R. at 153.) The Appeals Council explained that Dr. Ammisetty had
provided evidence in his case that ALJ Daugherty used to find him disabled, and
the ALJ relied solely on Dr. Ammisetty’s medical source statement and did not
evaluate any other evidence or medical opinions. (R. at 154.) Without considering
Dr. Ammisetty’s residual functional capacity form, the Appeals Council concluded
that there was not sufficient evidence in the file to show that Taylor was disabled
on or before February 2, 2011, the date Taylor previously had been awarded
benefits. (R. at 154-55.) The Appeals Council invited Taylor to submit additional
evidence or statements and granted his request for an extension of time within
which to do so. (R. at 155, 159.) Taylor did submit additional medical evidence in
June 2015.
In August 2015, after reviewing the additional evidence or statements
supplied by Taylor, the Appeals Council set aside the prior favorable decision and
remanded Taylor’s case to a different ALJ for further action and a new decision.
(R. at 111-14.) The Appeals Council gave Taylor an opportunity for a hearing
before another ALJ, ALJ Gavras, and an opportunity to testify and submit evidence
that was new, material and related to the period at issue. Taylor elected to appear
and testify at the April 2016 hearing with the assistance of counsel. (R. at 30-74.)
As a result of that redetermination hearing, ALJ Gavras, by decision dated April
21, 2016, found there was insufficient evidence to support Taylor’s entitlement to
DIB benefits at the time he was originally awarded them. (R. at 12-16.)
-3-
The ALJ found that Taylor met the insured status requirement of the Act for
DIB purposes through December 31, 2011. (R. at 12.) The ALJ also found that
Taylor had not engaged in substantial gainful activity during the period from his
alleged onset date of June 23, 2010, through February 2, 2011, the date Taylor
previously was awarded benefits.2 (R. at 13.) The ALJ found that the medical
evidence established that Taylor suffered from the following medically
determinable
impairments
during
the
relevant
period:
hypertension;
hyperlipidemia; and fatty liver infiltration, but he found that Taylor did not have a
severe impairment or combination of impairments. (R. at 13.) Thus, the ALJ found
that Taylor was not under a disability as defined under the Act from June 23, 2010,
through February 2, 2011, and was not eligible for benefits. (R. at 16.) See 20
C.F.R. § 404.1520(c) (2017). That being the case, the ALJ terminated Taylor’s
benefits and notified him that SSA may treat any benefits previously received as
overpayments, but that he could request that any such overpayment be waived. (R.
at 16.) Upon Taylor’s request, the Agency waived the $116,167.70 overpayment in
DIB benefits that Taylor had received.
Taylor requested review of the ALJ’s decision, (R. at 5), which the Appeals
Council denied on September 7, 2016. (R. at 1-3.) Taylor then filed the present
action on November 3, 2016, to appeal the Commissioner’s unfavorable
redetermination decision, which now stands as the Commissioner’s final decision.
See 20 C.F.R. § 404.981 (2017). He challenges not only the merits of the Agency’s
decision, but also raises challenges to the redetermination procedure as set out in
the Act. This case is before the court on Taylor’s motion for summary judgment
2
See Hearings, Appeals & Litigation Law Manual, (“HALLEX”), I-1-3-25, which states
that, when redetermining a claim, the relevant period is from the alleged onset date to the date of
previous award. In HALLEX, the Deputy Commissioner of Disability Adjudication and Review
defines procedures for carrying out policy and provides guidance for processing and adjudicating
claims at the hearing, Appeals Council and civil action levels. See HALLEX I-1-0-1.
-4-
filed May 4, 2017, and the Commissioner’s motion for summary judgment filed
June 19, 2017.
On June 1, 2015, during the pendency of Taylor’s redetermination, he filed
new claims for DIB and SSI. Although, typically, a claimant can have only one
active claim at a time, the Commissioner is allowing former clients of Conn to file
new claims during the redetermination of their old claims because the two claims
generally cover different time periods. The redetermination is limited to the period
that was previously awarded, while the new claims cover the period afterwards. On
October 14, 2016, the SSA denied Taylor’s DIB claim, finding that his date last
insured was December 31, 2012,3 and his treatment records did not show disability
as of that date. (Docket Item No. 17-2.) However, on October 28, 2016, the
Agency awarded Taylor’s SSI claim because it found him disabled as of June 1,
2015. (Docket Item No. 17-3.) He currently is receiving SSI benefits in the amount
of $191.31 per month. Taylor is seeking review before the Agency of the denial of
DIB benefits.
II. Facts 4
The court finds it necessary to include a description of the unusual
circumstances leading up to the redetermination of Taylor’s prior DIB award. The
record shows that the government indicted Conn, ALJ Daugherty and Dr. Bradley
Adkins in an 18-count indictment returned on April 1, 2016. Dr. Ammisetty was
not indicted. See United States v. Conn, et al., No. 5:16-cr-22 (E.D. Ky. Apr. 1,
3
In the ALJ’s decision, ALJ Gavras had found that Taylor’s date last insured was
December 31, 2011, not 2012. Thus, it appears that this is a typographical error in the 2016
denial.
4
Taylor’s substantive arguments on appeal focus on his back impairment. Therefore, the
court also will focus largely on the evidence related to these complaints.
-5-
2016). (Docket Item No. 17-5.) On March 24, 2017, Conn pled guilty in federal
court to his role in a scheme to defraud the Agency. See United States v. Conn, No.
5:17-cr-43 (E.D. Ky. Mar. 24, 2017). (Docket Item No. 17-6.) Conn agreed to a
factual basis to support his plea, including that he submitted the falsified medical
documents, and former SSA ALJ Daugherty authored decisions granting disability
benefits in nearly 1,800 claimants’ cases. (Docket Item No. 17-7.) Conn admitted
he paid medical professionals to sign medical forms that he fabricated before
evaluations of claimants occurred. According to his guilty plea, Conn routinely
prepared, and medical professionals signed, evaluation reports indicating that
claimants had limitations considered disabling by the SSA, irrespective of the
claimants’ actual physical or mental conditions. On or about June 2, 2017, Conn
removed his electronic monitoring device while under house arrest and fled his
home, about a month before his scheduled July 2017 sentencing. See
www.kentucky.com/news/state/article156523654.html (last visited Feb. 15, 2018).
In July 2017, Conn was sentenced in absentia to 12 years in prison. Law
enforcement apprehended him on December 2, 2017, in Honduras. The original
18-count indictment against Conn remains in effect, and the government intends to
prosecute him pursuant to it, in addition to escape and related charges. See
www.kentucky.com/news/state/article189653509.html (last visited Feb. 15, 2018).
Taylor was born in 1955, which classified him as a “person of advanced
age” under 20 C.F.R. § 404.1563(e) during the relevant time period. (R. at 39.) He
has a ninth-grade education and past relevant work experience as a truck driver. (R.
at 40-41.)
At his April 2016 hearing, Taylor testified that he last worked as a coal truck
driver in 2010. (R. at 42-43.) He stated that he quit working because he “couldn’t
do [his] job to satisfy the people that [he] was working for.” (R. at 43.) He stated
-6-
that he had to stop and walk around for 15 or 20 minutes every two or three hours
due to back pain and leg numbness and pain. (R. at 43-44, 58.) Taylor testified that
he broke his tailbone and was off work for about two months, after which time he
had experienced low back pain. (R. at 45.) He stated that he could not afford to go
to the doctor, and he explained that is why he did not take pain medications and
why there are not many medical records in his file relating to the relevant time
period. (R. at 45-46.) Nonetheless, Taylor stated that he went to the doctor a few
times, but they could not determine the cause of his problems. (R. at 45.) He said
that, prior to 2011, he was told he had a few deteriorated discs, a “spot” on his liver
and a lot of stomach problems, carpal tunnel syndrome in both wrists and fingers,
which caused numbness, and high blood pressure, which was controlled fairly well
with medications. (R. at 46, 51, 58-59.) Taylor stated that he did only what he had
to do at home, including mowing the yard if there was no one else to do it. (R. at
46-47.) He stated that he could stand for 30 to 45 minutes without experiencing
back pain. (R. at 47.) Taylor stated that he would lie down on the couch a lot in an
effort to relieve his pain. (R. at 48.) He stated that he could drive if he had to. (R. at
49.)
Taylor also testified that he experienced mood swings, depression, anxiety
and nervousness, but he did not seek any mental health treatment because he could
not afford it. (R. at 59.) He also stated that he never had to seek emergent treatment
for such mental health issues. (R. at 59.)
Taylor’s daughter, Kayla Taylor, also testified at this hearing. (R. at 61-63.)
She stated that she was 18 years old in 2010 and lived with her father. (R. at 62.)
Kayla Taylor stated that her father was in a lot of pain all the time, and he could
not work as long of hours as he had previously. (R. at 62.) She stated that he
complained of pain in his back, legs, arms and feet daily. (R. at 63.) Kayla Taylor
-7-
stated that when Taylor was home, he would alternate among the couch, the
recliner and the bed. (R. at 62.) She testified that Taylor had to rest all weekend in
order to be able to work the following week. (R. at 62.) Kayla Taylor stated that
her father did not participate in any of her school-related activities. (R. at 62-63.)
Theresa Wolford, a vocational expert, also was present and testified at
Taylor’s hearing. (R. at 66-71.) Wolford classified Taylor’s past work as a tractor
trailer truck driver as medium5 and semi-skilled work. (R. at 66.) Wolford testified
that an individual who could perform simple, routine medium work would not be
able to perform Taylor’s past relevant work as a truck driver. (R. at 66-67.)
However, she testified that such an individual could perform other jobs existing in
significant numbers in the national economy, including those of a hand packager
and a laundry worker. (R. at 67.) Wolford testified that a hypothetical individual
who could perform the full range of light 6 work also could not perform Taylor’s
past work as a truck driver. (R. at 67-68.) Wolford testified that an individual who
could perform simple, routine medium work, but who could sit for only two hours
at a time, could perform the jobs previously enumerated. (R. at 68-69.) Likewise,
she testified that if that individual could stand for only two hours at a time, he still
could perform those jobs. (R. at 69.) Wolford testified that with unskilled work,
typically, employers will tolerate being off task approximately 15 percent of the
time in addition to regularly scheduled breaks. (R. at 70.) She further testified that
employers typically tolerate one to two absences monthly at the unskilled level of
work, noting that if the employee would need two absences on a monthly,
5
Medium work involves lifting items weighing up to 50 pounds at a time and frequently
lifting or carrying items weighing up to 25 pounds. If someone can perform medium work, he
also can perform sedentary and light work. See 20 C.F.R. § 404.1567(c) (2017).
6
Light work involves lifting items weighing up to 20 pounds at a time with frequent
lifting or carrying of items weighing up to 10 pounds. If someone can perform light work, he
also can perform sedentary work. See 20 C.F.R. § 404.1567(b) (2017).
-8-
continuous basis, he would have difficulty maintaining competitive employment.
(R. at 70.)
In rendering his decision, the ALJ reviewed medical records from Family
Care Center; Clinch Valley Medical Center; Buchanan General Hospital; Dr. J.N.
Patel, M.D.; Pikeville Medical Center; University of Virginia Digestive Health
Clinic; Dr. Bert Spetzler, M.D., a state agency physician; and Dr. Joseph
Duckwall, M.D., a state agency physician.
The record shows that Taylor received treatment at Family Care Center 7
from October 2008 through October 2015. On July 13, 2010, Taylor complained of
elevated blood pressure, but he reported that he had stopped taking his medication.
(R. at 357.) On physical examination, Taylor’s blood pressure was 150/100, and he
was alert and oriented with an appropriate affect. (R. at 357.) A physical
examination was largely normal. (R. at 357.) Taylor could stand erect with a steady
gait, despite a reported history of chronic back pain. (R. at 357.) However, Taylor
stated that he was quitting his job because he could not stand the pain in his back.
(R. at 357.) He was diagnosed with hypertension and a history of increased
hyperlipidemia. (R. at 357.) On August 10, 2010, Taylor’s blood pressure was
132/78. (R. at 371.) His abdomen was distended, but nontender, and the remainder
of his examination was within normal limits. (R. at 371.) Taylor was diagnosed
with hypertension, hyperlipidemia and elevated liver function tests. (R. at 371.) A
liver ultrasound was ordered, and Taylor was advised to consume no alcohol. (R. at
371.)
Dr. Bert Spetzler, M.D., a state agency physician, completed an assessment
7
Many of the treatment notes from Family Care Center are difficult to read or illegible.
The court has done its best to decipher these notes.
-9-
in connection with Taylor’s initial disability claim on August 6 and 9, 2010. (R. at
88-93.) After reviewing Taylor’s medical records, Dr. Spetzler concluded that he
did not suffer from any severe impairments. (R. at 90.) Dr. Spetzler found that
Taylor could perform his past relevant work as a truck driver. (R. at 92.) Dr.
Spetzler specifically found that Taylor was receiving treatment for high blood
pressure and high cholesterol, but neither of these conditions would prevent him
from performing normal work activities. (R. at 92-93.) He further found that,
although Taylor alleged back pain and pain and numbness in the legs, feet, arms
and hands, there was no evidence of significant muscle weakness or nerve damage
that would prevent him from working. (R. at 93.) Dr. Spetzler also found that,
despite allegations of stomach problems, there was no evidence to indicate that
Taylor had received treatment for this condition. (R. at 93.) Finally, Dr. Spetzler
noted that, although Taylor was concerned about mood swings, depression and
anxiety, the evidence did not indicate that he had ever received treatment for such
conditions or that they would significantly affect his ability to remember,
understand or communicate with others. (R. at 93.) Dr. Spetzler concluded that
Taylor’s condition did not result in significant limitations in his ability to perform
basic work activities. (R. at 93.) Thus, he found that Taylor’s condition was not
disabling. (R. at 93.)
On August 19, 2010, an ultrasound of Taylor’s liver revealed a small echopoor mass in the right lobe, probably representing a hemangioma. (R. at 382-83.) It
also revealed another larger echo-poor mass in the midline measuring roughly 5 x
6 centimeters, representing a mass probably arising from the pancreas or, less
likely, the liver. (R. at 382.) A CT scan was recommended for further evaluation.
(R. at 382.) This CT scan of Taylor’s abdomen and pelvis was performed on
August 30, 2010, and revealed low attenuation of the liver compatible with diffuse
fatty liver infiltration. (R. at 381.) There also were multiple hepatic masses, the
-10-
largest of which was 8 centimeters in diameter and located in the left lobe. (R. at
381.) The appearance was most suggestive of multiple hemangiomata, but other
possible etiologies included metastatic disease, multifocal hepatoma, focal nodular
hyperplasia or adenomas, and an MRI was recommended for further confirmation.
(R. at 381.)
On September 24, 2010, Taylor was seen at the University of Virginia
Digestive Health Clinic for evaluation of liver lesions. (R. at 376-79.) Dr. Anshu
Mahajan, M.D., reviewed the results of Taylor’s diagnostic studies. (R. at 376.)
Taylor’s blood pressure was 129/69, and he was alert and oriented and in no acute
distress. (R. at 377.) Taylor’s abdomen was soft, nontender and nondistended with
present bowel sounds. (R. at 377.) The liver edge was palpable. (R. at 377.) There
was no clubbing, cyanosis or edema of the extremities. (R. at 377.) Dr. Mahajan
concluded that Taylor’s abnormal liver function tests were likely due to fatty liver.
(R. at 377.) He opined that the masses on the CT scan probably represented
hemangiomas, but their size was concerning. (R. at 377.) Dr. Mahajan stated that
Taylor’s case would be discussed at the Interdisciplinary Hepatology Tumor
Board. (R. at 377.) He ordered lab work in anticipation of a possible liver biopsy.
(R. at 377.) For Taylor’s fatty liver, Dr. Mahajan recommended exercise, diet and
alcohol abstinence. (R. at 377.) After discussing Taylor’s diagnostic studies with
the Interdisciplinary Hepatology Tumor Board, it was recommended that Taylor
follow up with either a tagged red blood cell scan or another three-phase contrast
CT scan in six months to evaluate for interval change or increase in size. (R. at
378.)
On October 14 and 18, 2010, Dr. Joseph Duckwall, M.D., a state agency
physician, completed an assessment in connection with the reconsideration of
Taylor’s claims. (R. at 94-100.) After reviewing the medical evidence of record,
-11-
Dr. Duckwall found that Taylor did not suffer from any severe impairments and
that he could perform his past relevant work as a truck driver. (R. at 97-99.) Dr.
Duckwall further found that Taylor was receiving treatment for high blood
pressure and high cholesterol, but neither of these conditions would prevent him
from doing normal work activities. (R. at 99.) He further found that, despite
Taylor’s allegations of back pain and pain and numbness in the legs, feet, arms and
hands, there was no evidence that he had significant muscle weakness or nerve
damage that would prevent him from working. (R. at 99.) Dr. Duckwall also found
that, despite allegations of stomach problems, there was no evidence to indicate
that Taylor had received any treatment for such condition. (R. at 99.) With regard
to his alleged mood swings, depression and anxiety, Dr. Duckwall noted that the
evidence did not indicate that he had ever received treatment for such conditions or
that they would significantly affect his ability to remember, understand or
communicate with others. (R. at 99.) Dr. Duckwall concluded that Taylor’s
condition did not result in significant limitations in his ability to perform basic
work activities and, therefore, was not severe enough to be considered disabling.
(R. at 99.)
Taylor returned to Family Care Center on November 10, 2010, for
medication refills. (R. at 439.) Physical examination at that time was within normal
limits. (R. at 439.) Taylor was diagnosed with hyperlipidemia, hypertension,
gastroesophageal reflux disease, (“GERD”), and low back pain, and he was
continued on medications. (R. at 439.)
This is the entirety of the medical evidence from the time period relevant to
the ALJ’s redetermination decision. Taylor explains that there is a dearth of
evidence during the relevant time period because he could not afford health
insurance. However, once he received DIB benefits, he could afford it, and he
-12-
began receiving medical treatment more regularly. The evidence that follows is
dated subsequent to the February 2, 2011, decision granting Taylor DIB benefits.
The ALJ reviewed this evidence, but concluded that it did not relate to the time
period relevant to the redetermination. Thus, this court also will consider this
evidence in determining whether the ALJ’s decision is supported by substantial
evidence. See Wilkins v. Sec’y of Dep’t of Health & Human Servs., 953 F.2d 93, 96
(4th Cir. 1991).
On March 28, 2011, Taylor returned to Family Care Center. (R. at 437.) His
blood pressure was 122/80. (R. at 437.) He was ambulatory with a steady gait, and
he had no complaints of leg or muscle pain. (R. at 437.) Taylor was diagnosed with
an upper respiratory infection, hypertension, GERD and hyperlipidemia, and he
was prescribed antibiotics. (R. at 437.) In May 2011, Taylor had complaints of
congestion, shortness of breath and a cough. (R. at 436.) His blood pressure was
112/70. (R. at 436.) A physical examination was normal, except for nasal
congestion. (R. at 436.) Taylor had a full range of motion of the extremities, and he
had normal reflexes. (R. at 436.) He was diagnosed with an upper respiratory
infection and received antibiotics. (R. at 436.) On October 3, 2011, Taylor had no
extremity edema, and his spine and gait were normal. (R. at 435.) He was
diagnosed with hypertension and hyperlipidemia, and he was advised to continue
his medications. (R. at 435.) On February 20, 2012, Taylor complained of head
congestion, cough and GERD. (R. at 434.) He exhibited no extremity edema, and
his spine and gait were, again, within normal limits. (R. at 434.) Taylor was
diagnosed with hypertension, hyperlipidemia, GERD and an upper respiratory
infection, and he received antibiotics. (R. at 434.) On July 11, 2012, Taylor
complained of bilateral knee swelling, hypertension, GERD and arthralgias. (R. at
433.) His blood pressure was 130/84. (R. at 433.) On physical examination, Taylor
had decreased range of motion in his knees, but his spine and gait were within
-13-
normal limits. (R. at 433.) He was diagnosed with hypertension, hyperlipidemia,
GERD and bilateral knee pain, and x-rays of the knees were ordered. (R. at 433.)
On May 10, 2013, Taylor complained of lower back pain with a burning sensation
radiating into both legs and feet. (R. at 432.) He also complained of hypertension
and myalgias/arthralgias. (R. at 432.) His blood pressure was 140/94, but Taylor
stated that he had been out of his blood pressure medication for two days. (R. at
432.) He had a full range of motion of the extremities with no edema, normal
reflexes and a steady gait. (R. at 432.) Taylor was diagnosed with hypertension,
neuropathy and back pain, and x-rays of the lumbar spine were ordered. (R. at
432.) Taylor was prescribed Neurontin. (R. at 432.)
X-rays of Taylor’s lumbar spine, taken on June 18, 2013, showed
levoscoliosis with degenerative disc and joint disease. (R. at 451.) X-rays of
Taylor’s left foot, taken on November 19, 2014, showed severe arthritic changes at
the medial malleolus and mild midfoot arthritic changes, but no definite acute bony
abnormalities. (R. at 450.)
On July 2, 2013, Taylor returned to Family Care Center, complaining that
Neurontin was not helping. (R. at 431.) He continued to complain of
myalgias/arthralgias, and his blood pressure was 128/72. (R. at 431.) He had a full
range of motion of the extremities with no edema and a steady gait. (R. at 431.)
However, Taylor exhibited paraspinal muscle tenderness and pain and burning,
which radiated into the bilateral lower extremities. (R. at 431.) Taylor was
diagnosed with lower back pain, neuropathy in both lower extremities and
polyarthropathy. (R. at 431.) He was prescribed Ultram, and his Neurontin dosage
was increased. (R. at 431.) On August 21, 2013, Taylor’s blood pressure was
107/62. (R. at 430.) He had a full range of motion and no edema of the extremities,
and no gross neurological deficits were noted. (R. at 430.) Taylor was diagnosed
-14-
with allergic rhinitis, an upper respiratory infection, hypertension and
hyperlipidemia. (R. at 430.) On November 25, 2013, Taylor complained of
bilateral leg pain. (R. at 429.) His blood pressure was 130/90. (R. at 429.) It was
noted that Taylor had chronic low back pain, which radiated into both lower
extremities with burning and numbness. (R. at 429.) It also was noted that Taylor
was limping. (R. at 429.) He was diagnosed with bilateral lower extremity pain and
neuropathy. (R. at 429.) On February 26, 2014, Taylor’s blood pressure was
140/98. (R. at 427.) He had a full range of motion of the extremities without
edema, reflexes were normal, and no neurological deficits were noted. (R. at 427.)
He was diagnosed with bronchitis, an upper respiratory infection and congestion.
(R. at 427.) On March 22, 2014, a physical examination yielded normal findings.
(R. at 423.) Taylor was diagnosed with neuropathy, hypertension, GERD and
hyperlipidemia. (R. at 423.) On November 11, 2014, Taylor complained of left foot
pain. (R. at 422.) His blood pressure was 140/90. (R. at 422.) A physical
examination revealed a full range of motion of the extremities with no edema and
normal reflexes. (R. at 422.) Taylor was diagnosed with polyarthropathy, bilateral
knee pain, a left foot injury, left foot pain, low back pain, hypertension and
neuropathy. (R. at 422.) A left foot x-ray was ordered. (R. at 422.)
On January 28, 2015, Taylor returned to Family Care Center. (R. at 421.)
His blood pressure was 128/82. (R. at 421.) He was diagnosed with peripheral
vascular disease, bilateral lower extremity pain, osteoarthritis, polyarthralgia and
right knee pain. (R. at 421.) On February 10, 2015, bilateral ankle brachial indices
were normal, and dedicated arterial imaging was recommended if symptoms were
severe. (R. at 443.)
On February 13, 2015, Taylor saw Dr. J.N. Patel, M.D., for a consult for a
colonoscopy. (R. at 391-93, 409-11.) He complained of left lower quadrant pain
-15-
for the previous three months, as well as constipation. (R. at 391, 409.) He
described the pain as dull, aching and nonradiating, with no aggravating or
relieving factors. (R. at 391, 409.) Taylor reported arthritis, back pain, joint pain
and stiffness, but he denied headache, dizziness, tingling, numbness, anxiety,
nervousness, depression and insomnia. (R. at 391, 409.) On physical examination,
Taylor was alert and oriented and in no acute distress. (R. at 391, 409.) No
deformities or muscle wasting was noted, but osteoarthritis was present. (R. at 392,
410.) Taylor had a normal gait and no joint dislocation, instability or subluxations.
(R. at 392, 410.) Muscle strength was full, and he had a normal range of motion
without pain or crepitus. (R. at 392, 410.) There was no clubbing, cyanosis or
edema of the extremities, and knee, ankle and bicep tendon jerks were 2+. (R. at
392, 410.) There were 2+ dorsalis pedis and posterior tibial pulses, negative
Homan’s sign, and Taylor ambulated without difficulty. (R. at 392, 410.) He had
normal respiratory, cardiovascular and neurological examinations. (R. at 392, 410.)
Taylor’s abdomen was soft and nondistended, without ascites and obvious hernias.
(R. at 392, 410.) There was no tenderness, guarding or rebound tenderness to
palpation. (R. at 392, 410.) There also was no evidence of hepatosplenomegaly, no
palpable masses and no costovertebral angle, (“CVA”), tenderness. (R. at 392,
410.) Dr. Patel diagnosed Taylor with left lower quadrant abdominal pain,
constipation, noninsulin dependent diabetes mellitus, hypertension, hyperlipidemia
and osteoarthritis. (R. at 393, 411.) He ordered lab work and a colonoscopy. (R. at
393, 411.)
On February 20, 2015, Taylor was admitted to Buchanan General Hospital
for a screening colonoscopy. (R. at 390, 395-96, 404-06.) He did well postoperatively and was discharged home. (R. at 390, 395, 404, 406.) Taylor was
diagnosed with diverticulosis coli and mild inflammation of the cecum. (R. at 390,
395, 404, 406.) He returned to Dr. Patel on February 27, 2015, for a follow-up
-16-
appointment. (R. at 400-02.) Taylor was alert, oriented and in no acute distress. (R.
at 400.) There were no deformities or muscle wasting, but osteoarthritis was
present. (R. at 401.) A physical examination yielded the same findings as
previously. (R. at 401.) Dr. Patel noted that Taylor’s colonoscopy showed mild
inflammation in the cecum, but a biopsy was negative. (R. at 402.) He diagnosed
Taylor with left lower quadrant abdominal pain, constipation, chronic back
syndrome, hyperlipidemia, hypertension and osteoarthritis. (R. at 402.) He
recommended a high-fiber diet and a repeat colonoscopy in five years. (R. at 402.)
On March 11, 2015, Taylor returned to Family Care Center. (R. at 419.)
Chronic bilateral lower extremity burning, tingling and numbness was noted. (R. at
419.) A physical examination was within normal limits. (R. at 419.) Taylor was
diagnosed with osteoarthritis, hyperlipidemia, hypertension, polyarthropathy and
neuropathy. (R. at 419.)
Taylor saw Dr. Belal Said, M.D., at Pikeville Medical Center on March 12,
2015, with complaints of joint pain, worse in the knees, legs and back and
associated with subjective swelling. (R. at 484-91.) Taylor stated that the pain was
worse with activities and decreased with rest. (R. at 484.) He also stated that it was
worse in the evening and associated with numbness in the legs, without history of
stool or urine incontinence. (R. at 484.) Taylor’s blood pressure was 155/96. (R. at
485.) He rated his pain as a five on a 10-point scale. (R. at 486.) A physical
examination was largely normal, except for crepitation of both knees and trace
pitting edema of both lower extremities. (R. at 486.) Dr. Said diagnosed Taylor
with joint pain, site unspecified, and he ordered lab work. (R. at 487.) Taylor was
continued on his medications, which included aspirin and gabapentin. (R. at 48788.) X-rays of Taylor’s knees, taken on March 12, 2015, showed mild
tricompartmental osteoarthritis in both knees. (R. at 414, 482.) A chest x-ray, taken
-17-
the same day, showed no acute cardiopulmonary process, but mild ageindeterminate wedge deformity of the L1 disc. (R. at 417, 480.) Taylor returned to
Dr. Said on April 14, 2015, with complaints of joint pain in both legs, which he
rated as a six on a 10-point scale. (R. at 492-99.) He described the pain as aching
and burning, and he stated it was aggravated by walking and standing and was
worse in the mornings. (R. at 492.) Taylor stated that the pain was relieved by
medication. (R. at 492.) Taylor’s blood pressure was 130/78. (R. at 493.) A
physical examination was normal, except for a mildly reduced range of motion of
the right elbow and crepitation of both knees. (R. at 494.) Dr. Said diagnosed
Taylor with osteoarthrosis, unspecified whether generalized or localized, involving
unspecified site, and he was advised to continue taking diclofenac. (R. at 494.)
Taylor returned to Family Care Center on August 17, 2015, with complaints
of leg and finger cramps. (R. at 500.) He was alert and oriented with an appropriate
affect. (R. at 500.) Taylor had a full range of motion of the extremities without
edema, and he exhibited normal reflexes. (R. at 500.) He had increased burning
and tingling in both lower extremities. (R. at 500.) He was diagnosed with lower
back pain, polyarthropathy, neuropathy, hypertension and GERD. (R. at 500.) On
September 23, 2015, Taylor’s blood pressure was 112/72. (R. at 501.) He had
bilateral knee crepitus and positive bilateral straight leg raise testing. (R. at 501.)
Taylor was diagnosed with lower back pain, bilateral knee pain and
polyarthropathy. (R. at 501.) His dosage of Norco was increased, and he was
prescribed a course of prednisone. (R. at 501.) On October 9, 2015, Taylor again
had bilateral knee crepitus, as well as paraspinal muscle tenderness. (R. at 502.) He
was diagnosed with hyperlipidemia, lower back pain and polyarthropathy. (R. at
502.) On October 15, 2015, Taylor complained of achy and persistent pain in both
legs and feet, which he rated as a six on a 10-point scale. (R. at 512.) He stated that
it was aggravated by standing and relieved by rest. (R. at 512.) Taylor also
-18-
complained of increased pain in the hands with numbness, as well as knee pain, for
which he was taking Norco. (R. at 512.) Although he was still taking diclofenac, he
did not think it was helping. (R. at 512.) Taylor was diagnosed with
polyosteoarthritis, unspecified, and carpal tunnel syndrome of the arm. (R at 512.)
Diclofenac was discontinued, and he was prescribed nabumetone. (R. at 512.)
Taylor was advised to try wrist braces for the carpal tunnel symptoms, and a nerve
conduction study would be considered for both hands. (R. at 512.) A complete
metabolic panel and sedimentation rate testing were ordered. (R. at 512.) On
October 22, 2015, Taylor’s blood pressure was 128/80. (R. at 503.) He had
bilateral knee crepitus, as well as cervical spine, thoracic spine and lumbar spine
paramuscle tenderness. (R. at 503.) He also complained of increased burning and
tingling in the lower extremities and feet, which he rated a 10 on a 10-point scale.
(R. at 503.) Taylor was diagnosed with lower back pain, osteoarthritis, bilateral
peripheral neuropathy, polyarthropathy and sciatica. (R. at 503.) Spinal x-rays
were ordered, and Taylor’s dosage of Norco was increased. (R. at 503.)
On September 8, 2015, Taylor saw Dr. Nasreen Dar, M.D., a psychiatrist,
for a psychiatric evaluation. (R. at 515-17.) He reported back pain for 12 to 15
years, but no history of back injury. (R. at 515.) Taylor stated that he had been
diagnosed with degenerative disc disease in his back. (R. at 515.) He reported that
his back continued to hurt, with pain radiating down both legs and a burning
sensation in both feet. (R. at 515.) Taylor reported difficulty bending over, lifting
heavy objects, sitting, standing or walking for too long. (R. at 515.) Taylor also
reported diagnoses of hypertension and arthritis, for which he was taking
medication. (R. at 515.) He further reported being nervous for the past several
years, having difficulty dealing with stress, crowds, loud noises and children. (R. at
515.) He expressed feelings of irritability, depression and worry and having
difficulty going to sleep and being restless during the night. (R. at 515.) Taylor
-19-
reported that his appetite was fair without any weight change. (R. at 515.) He
reported feelings of hopelessness, helplessness and worthlessness, and he admitted
to suicidal thoughts without definite plans or attempts. (R. at 515.) Taylor stated
that when he became nervous or upset, he developed a headache, he smothered and
he became sick to his stomach. (R. at 515.) He was not in treatment and had not
taken any medication for his emotional difficulties. (R. at 515.)
On mental status examination, Taylor was cooperative, but withdrawn. (R. at
516.) His affect and mood were depressed and frustrated, but he was fully oriented.
(R. at 516.) Taylor presented with a poverty of thoughts, had difficulty relating to
the examiner, and his speech revealed frustration. (R. at 516.) Taylor’s
concentration also was impaired, as he was unable to recall any one when asked to
name five recent United States presidents. (R. at 516.) Dr. Dar opined that his
intellect was borderline. (R. at 516.) He had difficulty performing Serial 7’s, but he
was able to do a simulated purchase and make change for one dollar. (R. at 516.)
Taylor’s recent and remote memory was intact, and he had no difficulty repeating
or recalling during the interview. (R. at 516.) There were no signs or symptoms of
organic brain syndrome. (R. at 516.) Taylor’s impersonal judgment was
questionable, and he responded to proverbs in a concrete manner. (R. at 516.) His
general fund of knowledge was poor. (R. at 516.) Dr. Dar opined that Taylor had a
fair amount of insight into his difficulties, but a low amount of self-esteem. (R. at
516.) He did not appear to have any auditory or visual hallucinations during the
interview, and he did not present with delusional thinking, ideas of reference or
loose associations. (R. at 516.) Dr. Dar diagnosed Taylor with severe neurotic
depression; back pain; and low intellect, and she deemed his prognosis guarded.
(R. at 516.) She concluded that he continued to have physical and emotional
difficulties and did not appear to be able to tolerate much stress or handle any
gainful employment. (R. at 517.) Dr. Dar further opined that Taylor was not a good
-20-
candidate for vocational rehabilitation. (R. at 517.) She recommended that he seek
psychiatric follow-up treatment. (R. at 517.)
Taylor returned to Dr. Dar on October 22, 2015, stating that he was not
doing well emotionally. (R. at 518-19.) He reported difficulty dealing with stress
and concentrating and not sleeping well, but he was eating “fair,” he was in touch
with reality, and he was able to relate and take part in chores and activities. (R. at
518.) Taylor complained of excessive crying, fatigue, night sweats, tiredness and
weight gain. (R. at 518.) He also complained of palpitations and rapid heart rate,
back pain, joint pain, stiffness and swelling, leg cramps and muscle cramps,
anxiety, change in sleep pattern, depression, early awakening, being easily
irritated, frequent crying, inability to concentrate, mood changes, nervousness and
trouble falling asleep. (R. at 518.) Taylor’s blood pressure was 156/102. (R. at
519.) Dr. Dar diagnosed Taylor with dysthymia, generalized anxiety disorder, high
blood pressure and acid reflux. (R. at 519.) She prescribed amitriptyline and
buspirone. (R. at 519.)
Taylor returned to Family Care Center on October 26, 2015, for a follow-up
appointment. (R. at 520-23.) A history of chronic back pain was noted of sudden
onset and a severity of a 10 on a 10-point scale. (R. at 520.) Taylor described the
pain as aching, burning, cramping, dull, sharp, shooting and tender, and he stated it
was constant. (R. at 520.) This pain radiated into the right buttocks and leg above
the knee and into the left leg above the knee. (R. at 520.) Aggravating factors
included lifting, movement, walking, lying down, bending and prolonged sitting,
among other things. (R. at 520.) Taylor reported no alleviating factors. (R. at 520.)
He reported that his neuropathy in the lower back and legs was exacerbated and
uncontrolled, even with good medication compliance. (R. at 520.) He rated its
severity as a 10 on a 10-point scale, and he stated it was constant. (R. at 520.) He
-21-
reported moderate numbness, decreased sensation and weakness, with aggravating
factors of stress, lack of sleep, exercise, rest, walking, prolonged sitting and
movement, but no alleviating factors. (R. at 520.) On physical examination, Taylor
was in no acute distress, but appeared chronically ill. (R. at 521.) He was alert and
fully oriented and ambulated without difficulty. (R. at 521.) He had no deformities,
clubbing, cyanosis or edema of the extremities, but both hips, knees, ankles and
feet were moderately tender with decreased range of motion. (R. at 522.) His gait
was within normal limits, and he had no focal deficits. (R. at 522.) Taylor’s mood
was depressed with a congruent affect, his intellectual functioning was appropriate,
as were his thought content and perceptions, and his associations were congruent.
(R. at 522.) Evidence of exaggerated pain behavior was noted. (R. at 522.) There
was midline spinal tenderness, paralumbar tenderness, parathoracic tenderness and
buttocks tenderness noted. (R. at 522.) Range of motion with extension, lateral
bending and rotation was moderately decreased. (R. at 522.) Patellar deep tendon
reflexes were diminished bilaterally, and ankle dorsiflexion strength and sensation,
as well as great toe dorsiflexion strength and sensation, were moderately
decreased. (R. at 522.) Deep tendon reflexes in the ankles were diminished
bilaterally, and ankle plantar flexion strength and sensation were moderately
decreased. (R. at 522.) Straight leg raise testing was positive, and Taylor had a
moderately antalgic gait. (R. at 522.)
Taylor was diagnosed with uncontrolled and worsening chronic low back
pain; worsening lumbar disc degeneration; worsening sciatica; uncontrolled
chronic pain syndrome; osteoarthritis, not otherwise specified; polyarthropathy;
and peripheral neuropathy. (R. at 522-23.) It was explained to Taylor that his
symptoms and examination were most consistent with a benign musculoskeletal
back injury. (R. at 523.) He was given a favorable prognosis. (R. at 523.) Physical
therapy was recommended, but Taylor declined. (R. at 523.) He was advised to
-22-
continue his current medication regimen. (R. at 523.)
Although the ALJ could not consider the evaluation and physical assessment
conducted by Dr. Srini M. Ammisetty, M.D., on January 6, 2011, as part of the
redetermination of Taylor’s claim, I will include it for clarification of the record
only. In sum, Dr. Ammisetty concluded that Taylor could lift and carry items
weighing up to 10 pounds occasionally and up to five pounds frequently. (R. at
528-31.) He found that Taylor could stand/walk for a total of two hours in an eighthour workday, but for only 30 minutes without interruption, and that he could sit
for four hours in an eight-hour workday, but for only 30 minutes without
interruption. (R. at 528-29.) Dr. Ammisetty opined that Taylor could occasionally
balance, stoop, crouch and kneel, but never climb or crawl. (R. at 529.) He found
that he could constantly see, hear and speak, frequently handle and feel objects, but
occasionally reach and push/pull. (R. at 530.) Dr. Ammisetty opined that Taylor
could frequently work around temperature extremes, chemicals, dust, noise, fumes
and humidity, but occasionally work around heights, moving machinery and
vibration. (R. at 531.)
III. Analysis
A. Procedural Arguments
Taylor makes multiple procedural arguments regarding the redetermination
procedure itself, in addition to his argument regarding the ALJ’s substantive
determination that he was not disabled and not entitled to DIB benefits. I will
address these procedural arguments first before turning to Taylor’s substantive
arguments. Taylor argues that the redetermination procedure violates his
constitutional right to due process. He also alleges that various statutorily created
-23-
procedural rights were violated, including violations of res judicata principles
contained in the Social Security Act and violations of the Administrative Procedure
Act, (“APA”). Lastly, Taylor argues that his redetermination proceeding violated
the “immediacy” requirement contained in § 405(u). As the Commissioner notes in
her brief, these all appear to be issues of first impression in this district. However,
courts in the Eastern District of Kentucky, 8 the Southern District of West Virginia 9
and the Middle District of Florida 10 have addressed the issues raised by Taylor. I
agree with the reasoning of these courts, and their analysis of the issues informs
my findings here.
The Commissioner has moved for summary judgment on Taylor’s claims
attacking the redetermination process. With regard to a motion for summary
judgment, the standard for review is well-settled. The court should grant summary
judgment only when the pleadings, responses to discovery and the record reveal
that “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” FED. R. CIV. P. 56(a); see, e.g., Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 250 (1986); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S.
574, 586-87 (1986). A genuine dispute of fact exists “if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Anderson, 477
8
The court notes that there is a split in the Eastern District of Kentucky as to whether the
redetermination process violates claimants’ constitutional due process rights. In Hicks v. Colvin,
2016 WL 5944715 (E.D. Ky. Oct. 12, 2016), Judge Thapar granted the plaintiff’s motion for
summary judgment and denied the Commissioner’s cross-motion in related cases on due process
grounds. However, in Carter v. Colvin, 220 F. Supp. 3d 789 (E.D. Ky. 2016), and Perkins v.
Colvin, 224 F. Supp. 3d 575 (E.D. Ky. 2016), Judge Reeves and Judge Hood, respectively, found
that the redetermination procedure comported with due process. The issue is on appeal to the
Sixth Circuit, but no decision has yet been issued. I find the reasoning employed by Judge
Reeves and Judge Hood persuasive.
9
See Robertson v. Berryhill, 2017 WL 1170873 (S.D. W.Va. Mar. 28, 2017).
10
See Smith v. Comm’r of Soc. Sec., 2017 WL 5256872 (M.D. Fla. Nov. 13, 2017).
-24-
U.S. at 248. In considering a motion for summary judgment, the court must view
the facts and the reasonable inferences to be drawn from the facts in the light most
favorable to the party opposing the motion. See Anderson, 477 U.S. at 255;
Matsushita, 475 U.S. at 587. In order to be successful on a motion for summary
judgment, a moving party “must show that there is an absence of evidence to
support the non-moving party’s case” or that “the evidence is so one-sided that one
party must prevail as a matter of law.” Lexington-South Elkhorn Water Dist. v. City
of Wilmore, Ky., 93 F.3d 230, 233 (6th Cir. 1996). When a motion for summary
judgment is made and is properly supported by affidavits, depositions or answers
to interrogatories, the nonmoving party may not rest on the mere allegations or
denials of the pleadings. See Oliver v. Va. Dep’t of Corrs., 2010 WL 1417833, at
*2 (W.D. Va. Apr. 6, 2010) (citing FED. R. CIV. P. 56(e)). Instead, the nonmoving
party must respond by affidavits or otherwise and present specific facts from which
a jury could reasonably find for either side. See Anderson, 477 U.S. at 256-57.
The relevant provision of the Social Security Act at issue in this case is
found at 42 U.S.C. § 405(u), which states as follows:
(1)(A) The Commissioner of Social Security shall immediately
redetermine the entitlement of individuals to monthly insurance
benefits under this subchapter if there is reason to believe that fraud or
similar fault was involved in the application of the individual for such
benefits. …
(B) When redetermining the entitlement, or making an initial
determination of entitlement, of an individual under this subchapter,
the Commissioner of Social Security shall disregard any evidence if
there is reason to believe that fraud or similar fault was involved in
the providing of such evidence.
42 U.S.C.A. § 405(u)(1)(A)-(B) (West 2011). In 42 U.S.C. § 1320a-8(l), Congress
required the SSA’s OIG to make this determination as to whether there is such a
-25-
reason to believe fraud or similar fault was involved in a claimant’s application for
benefits. That section states, in relevant part:
“As soon as the [OIG] has reason to believe that fraud was involved in
the application of an individual for monthly insurance benefits under
subchapter II or for benefits under subchapter VIII or XVI, the [OIG]
shall make available to the Commissioner … information identifying
the individual. …”
42 U.S.C.A. § 1320a-8(l) (West 2012 & Supp. 2017).
1. Claim of Due Process Violation
Taylor argues that § 405(u) violates principles of due process because: (1)
the Agency did not supply an evidentiary basis for the determination that fraud was
involved in the reports of the doctors; (2) the Agency never actually found that
fraud was involved in those doctors’ reports; and (3) the Agency did not give him
the opportunity in the administrative proceedings to challenge the finding of fraud
as to Dr. Ammisetty’s report. Thus, Taylor’s argument relies on his inability to
challenge the OIG’s finding that there was reason to believe that fraud was
involved in his application. For the reasons that follow, I find all of Taylor’s due
process arguments unpersuasive, and I will enter summary judgment in the
Commissioner’s favor on this claim.
Due process is not a fixed concept, but is “flexible and calls for such
procedural protections as the particular situation demands.” Morrissey v. Brewer,
408 U.S. 471, 481 (1972). In Mathews v. Eldridge, 424 U.S. 319 (1976), the
Supreme Court set out a three-part balancing test courts must use when evaluating
procedural due process claims. This three-part test requires courts to balance the
following factors: (1) the private interest that will be affected by the official action;
-26-
(2) the risk of erroneous deprivation of such interest through the procedure used
and the probable value, if any, of additional or substitute procedural safeguards;
and (3) the government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement
would entail. See Mathews, 424 U.S. at 334-35; Robertson, 2017 WL 1170873, at
*5-6; Carter, 220 F. Supp. 3d at 799; Smith, 2017 WL 5256872, at *6.
Disability benefits constitute a statutorily created property interest. See Am.
Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 60 (1999); see also Mathews, 424 U.S.
at 332; see also Majors v. Astrue, 2008 WL 2783524, at *1 n.6 (W.D. Va. July 16,
2008). Thus, the continued receipt of such benefits is protected by the Due Process
Clause. See Mathews, 424 U.S. at 332; see also Majors v. Astrue, 2008 WL
2783524, at *1 n. 6 (W.D. Va. July 16, 2008). “The fundamental requirement of
due process is the opportunity to be heard ‘at a meaningful time and in a
meaningful manner.’” Mathews, 424 U.S. at 333 (quoting Armstrong v. Manzo,
380 U.S. 545, 552 (1965)). As to the first Mathews factor, I find that Taylor’s
interest is substantial. Taylor has stated that he is receiving SSI benefits of only
$191.31 per month, whereas he previously was receiving $1,778.90 in monthly
DIB benefits. Despite Taylor’s admission that his wife receives monthly benefits
and a monthly pension payment, he claims that the reduction in his monthly
benefits has left his family unable to pay their bills.
As to the second Mathews factor, the risk of erroneous deprivation, the court
must examine the procedural protections that are in place as part of the
redetermination process. During the redetermination process, the Agency examines
all of the evidence considered at the time of the original award of benefits, except
for the evidence related to the alleged fraud. Claimants, however, are entitled to
submit new evidence that relates to the time period relevant to the original award.
-27-
In fact, claimants have two opportunities to submit such new evidence – once after
the initial notification before the Appeals Council remands the case to an ALJ, and
again if the case is remanded. Moreover, the Agency will assist beneficiaries in
obtaining and developing such new evidence. This new evidence may then be
substituted for the excluded evidence. Here, Taylor was notified of his right to
submit additional evidence by the Agency in a Notice of Appeals Council Action,
dated May 18, 2015. (R. at 153-56.) In this Notice, the Appeals Council advised
Taylor of its intention to redetermine his eligibility for benefits based on the OIG’s
reason to believe that fraud was involved in his application for benefits. The
Appeals Council further advised Taylor: “You may send us more evidence or a
statement about the facts and the law in your case within 10 days of the date of this
letter. … If you cannot obtain the information within 10 days, you will have
additional time to submit evidence, as described below, to the [ALJ].” (R. at 155.)
The Appeals Council advised Taylor that it would consider additional evidence
that was new and material and related to his disability starting on or before
February 2, 2011, the date of the ALJ’s decision awarding benefits. (R. at 155.)
Thereafter, Taylor requested, and was granted, additional time to submit such
evidence or statements to the Appeals Council regarding his original benefits
application. (R. at 159-61.) Taylor further was advised that, if the Appeals Council
ultimately remanded his case to an ALJ for further review, he would have yet
another opportunity to submit additional evidence or statements at that time. (R. at
160.)
On September 23, 2015, Taylor was advised that the Appeals Council had
remanded his case to an ALJ for further action. (R. at 162-64.) Taylor was advised
that the ALJ would “consider the issue(s) you raise, the evidence now in your file,
and any additional evidence you provide.” (R. at 163.) This letter also stated “[w]e
can help you get evidence. If you need help, contact our office, your local Social
-28-
Security office, or your representative … immediately.” (R. at 164.) A September
29, 2015, Notice Of Conference was sent to Taylor, which stated that a prehearing
telephone conference was scheduled for October 16, 2015, to discuss, among other
things, any evidence not yet submitted. (R. at 174-75.) A Notice Of Hearing, dated
November 16, 2015, was sent to Taylor, advising him of a December 15, 2015,
hearing date. (R. at 176-81.) As part of this Notice Of Hearing, Taylor was again
advised that the ALJ would consider additional evidence that was new and material
and related to his disability on or before February 2, 2011. (R. at 178.) Thus,
Taylor was notified that he had more than one opportunity to provide additional
evidence to substitute for Dr. Ammisetty’s excluded report.
The greatest risk of erroneous deprivation, however, comes from the
exclusion of certain evidence. As the Carter court found, the degree of this risk is
linked entirely to the probative value of the excluded evidence. See 220 F. Supp.
3d at 802; see also Smith, 2017 WL 5256872, at *7 (“Dr. Huffnagle was not a
treating physician and his opinion is not entitled to controlling weight or deference
under the regulatory framework.”). Here, Dr. Ammisetty was not Taylor’s treating
physician; thus, his opinions would not be entitled to great weight under the
regulations. See 20 C.F.R. § 404.1527(c)(2) (2017). As the court in Carter noted, if
ALJ Daugherty erroneously gave this evidence more weight than it deserved, then
redetermination is likely to produce a different result regardless of whether that
evidence is excluded. See 220 F. Supp. 3d at 802-03. Also, as noted by the court in
Carter, it not only is alleged that ALJ Daugherty was giving improper weight to
the opinions from these nontreating providers, including Dr. Ammisetty, but that
he was not weighing the evidence at all. See 220 F. Supp. 3d at 803. All of this
being said, because Dr. Ammisetty’s reports were most likely entitled to little
weight, as opposed to controlling weight, and because claimants, including Taylor,
may substitute for the excluded evidence, I find that the risk of erroneous
-29-
deprivation is low based on the procedures employed during redetermination
hearings.
Additionally, Taylor proposes, as a substitute safeguard, that a hearing be
held to determine whether Dr. Ammisetty’s report should have been excluded. The
statute at issue, 42 U.S.C. § 405(u), requires the Agency to disregard any evidence
that is believed to be fraudulent. Thus, such a proposed hearing would include a
determination of whether there is actually a reason to believe the fraud existed. As
noted in Carter and Robertson, such a hearing likely would require the government
to show by a preponderance of the evidence that fraud existed, which a claimant
would then have to rebut. See 220 F. Supp. 3d at 803; see also 2017 WL 1170873,
at *9. It is undisputed that there was evidence sufficient for a criminal indictment
as to Conn, ALJ Daugherty and Dr. Adkins. With a criminal indictment of three
main players in a fraud conspiracy and an investigation including Dr. Ammisetty in
that conspiracy, it seems unlikely that the Agency would fail to meet its burden.
See Robertson, 2017 WL 1170873, at *9. Also, while Dr. Ammisetty was not the
subject of a criminal indictment, Conn was indicted, and as part of his guilty plea,
he agreed to a factual basis to support it, which included that he provided
precompleted medical forms to medical professionals, including Dr. Ammisetty, 11
who signed them without modifying their disabling limitations, despite the
claimant’s actual limitations. On the other hand, I find it unlikely that Taylor could
succeed in rebutting such a showing where many potential witnesses are under
criminal indictment. Although Taylor may be able to call Dr. Ammisetty as a
witness to testify as to the legitimacy of his medical report, Dr. Ammisetty’s
credibility would be challenged and recollection doubtful. See Robertson, 2017
11
The criminal indictment does not identify Dr. Ammisetty by name. Instead, it
references “Unindicted Co-Conspirator A” and “Unindicted Co-Conspirator B.” Given the OIG’s
referral, directing the Agency to exclude certain medical evidence from Dr. Ammisetty, it stands
to reason that he, in fact, is one of these unindicted co-conspirators.
-30-
WL 1170873, at *9. It is for these reasons that I find that added evidentiary
hearings on the fraud would be of negligible value in preventing erroneous
deprivation. See Carter, 220 F. Supp. 3d at 803; see also Robertson, 2017 WL
1170873, at *9. Under the circumstances of this case, with the only excluded
evidence being from a consultative medical provider, I find that the added
evidentiary hearing on fraud would add little or no value in preventing the
erroneous deprivation of Taylor’s benefits. See Robertson, 2017 WL 1170873, at
*9.
Furthermore, as the Carter court stated, Taylor’s core interest is in the
retention of his benefits, not in avoiding the redetermination. See 220 F. Supp. 3d
at 803. Although a successful rebuttal of the fraud allegation would seem to ensure
continued receipt of benefits, the inability to rebut the allegation does not
compromise Taylor’s right to prove his eligibility for benefits. See Carter, 220 F.
Supp. 3d at 803; see also Robertson, 2017 WL 1170873, at *9 (noting that the final
decision that the plaintiff did not qualify for disability benefits did not turn on the
fraud determination, but on the sufficiency of the evidence, and the plaintiff was
given a full opportunity, with assistance from SSA, to develop new evidence to
prove his disability.) Therefore, when it comes to the actual probative value of a
fraud hearing on Taylor’s ability to retain his DIB benefits, it will be relatively
meaningless at this stage. See Carter, 220 F. Supp. 3d at 803; see also Robertson,
2017 WL 1170873, at *9 (“[T]he added evidentiary hearing of fraud would add
little to no value in preventing the erroneous deprivation of Plaintiff’s benefits.”).
For all of the above-stated reasons, I find that the second Mathews factor tips in
favor of the defendant.
I will next turn to the third Mathews factor – the government’s interest. This
includes the function involved and the financial and administrative burdens the
-31-
additional or substitute safeguards would entail. Other circuit courts have
emphasized that, in “[m]easuring the important interests at stake, as described in
both Goldberg v. Kelly12 and in Mathews v. Eldridge” an individual’s interest in
the finality of the decision as to whether he is eligible for benefits does not
outweigh the government’s “interest in assuring a fiscally responsible system
which is subject to proper auditing.” Himmler v. Califano, 611 F.2d 137, 146-47
(6th Cir. 1979); see also Ching v. Mayorkas, 725 F.3d 1149, 1158 (9th Cir. 2013)
(the degree of defendant’s interest in preventing fraud and in avoiding erroneously
providing benefits is relevant to the third factor in the Mathews test); see also
Smith, 2017 WL 5256872, at *7 (finding that the government’s interest is
“legitimate and compelling.”). First, I find that such additional procedures would
seem to undermine the swift termination of benefits that is the purpose of the
redetermination process. In this case, if the nearly 1,800 individuals whose
entitlement had to be redetermined were granted “mini trials” as to whether there
was a reason to believe that fraud was involved in their individual cases, the costs
would be high, overpayments would mount, the criminal proceedings could be
jeopardized, the chance of disparate results would be significant and the Agency’s
strong interest in complying with its statutory mandate to conduct redeterminations
“immediately” would be undermined. See Robertson, 2017 WL 1170873, at *10
(“The greatest detriment to the SSA in requiring these evidentiary hearings would
be the time and delay involved.”); see also Erickson v. U.S. ex rel. Dep’t of Health
& Human Servs., 67 F.3d 858, 863 (9th Cir. 1995) (“Requiring full-blown
predeprivation hearings would frustrate Congress’ intent and impede the
Secretary’s ability to act quickly. It would also impose significant administrative
costs.”). This is not to say that these burdens would necessarily outweigh the
interest in avoiding the risk of erroneous deprivation of benefits. However, in
12
Goldberg v. Kelly, 397 U.S. 254 (1970).
-32-
reality, and as stated above, such hearings would likely be of minimal value to a
claimant’s ability to retain benefits.
Part of the fraud allegation is that physicians, including Dr. Ammisetty, were
signing precompleted residual functional capacity forms, which included disabling
limitations, regardless of a claimant’s actual limitations. While the Agency does
not want to continue to pay benefits to claimants who are not entitled to them, it
also does not wish to deprive deserving claimants of benefits to which they are
entitled. Thus, Congress struck a balance by requiring that the fraudulent evidence
be excluded from the redetermination procedure, and the Agency developed
processes through which claimants may submit new evidence to substitute for the
excluded evidence. See Carter, 220 F. Supp. 3d at 804. The Agency also offers its
assistance to claimants in doing so. Furthermore, in this case, because the United
States has undertaken criminal prosecutions where warranted, to require a judicialtype hearing as to the existence of fraud in this administrative context would
frustrate the redetermination process. See Carter, 220 F. Supp. 3d at 804.
Moreover, requiring the Commissioner to obtain the relevant evidence from the
OIG and present it to each individual defendant in the administrative context also
could risk compromising the ongoing criminal prosecutions. See Carter, 220 F.
Supp. 3d at 804. As the court in Carter found, because there is a strong public
interest in maintaining the integrity of the criminal prosecution, and not needlessly
tying up the process of redetermining benefits, I also find that this third Mathews
factor weighs in favor of the government. See 220 F. Supp. 3d at 804.
Additionally, I find that being subject to a redetermination without a
threshold adjudication of the fraud allegation does not violate due process for the
following reasons. Beneficiaries are subject to routine reevaluations. The
regulations provide limitations as to when the Commissioner may reopen benefits
-33-
determinations, with a general limit of four years absent any of the stated
conditions. See 20 C.F.R. § 404.988(b) (2017). Additionally, Congress is free to
mandate more frequent reviews of Title II or Title XVI benefits without violating
the due process rights of beneficiaries. Thus, while beneficiaries have a property
interest in their previously awarded benefits, they do not have a constitutional
interest in not being subjected to continuing assessments of eligibility. See Carter,
220 F. Supp. 3d at 805.
Furthermore, it would be fundamentally unfair, and defeat the primary
purpose of procedural due process, if similarly situated individuals received
disparate decisions based on different factfinders’ analyses of the evidence against
Conn, Daugherty and the medical sources. By bestowing the OIG with exclusive
authority to conduct investigations into large-scale fraud schemes perpetrated by
third parties, requiring OIG to notify the Agency of any “reason to believe”
findings resulting from its investigations and requiring the Agency to initiate
redeterminations based on those findings, the redetermination process as
prescribed by Congress ensures that its programs are administered fairly and
uniformly. Moreover, requiring the Agency to factually determine fraud in each
case would thwart the OIG’s exercise of authority granted to it by Congress to
identify and prosecute program fraud. See Robertson, 2017 WL 1170873, at *5.
In sum, I find that, even though Taylor has a substantial interest in the
retention of his DIB benefits, the risk of erroneous deprivation is not sufficient to
justify the substitute safeguards he seeks. Also, the additional process he seeks
could substantially interfere with other important interests. I find that, because the
fraud allegation is not the proximate cause of Taylor’s benefits being terminated,
and because he was given a meaningful opportunity to substitute for Dr.
Ammisetty’s evidence, he has not been deprived of due process. Because there is
-34-
no genuine dispute as to a material fact regarding Taylor’s due process claim, and
because I am persuaded by the Commissioner’s legal arguments as set out above, I
will grant summary judgment in the Commissioner’s favor on Taylor’s claim in
Count I.
2. Claim of Violations of the Social Security Act and/or Agency Regulations
a. Res Judicata
Taylor argues that the doctrine of res judicata precludes the Agency from
revisiting the previous decision granting him DIB benefits. Again, I find this
argument unpersuasive. “Under the doctrine of res judicata, … ‘[a] final judgment
on the merits of an action precludes the parties or their privies from relitigating
issues that were or could have been raised in that action.’” Pueschel v. United
States, 369 F.3d 345, 354 (4th Cir. 2004) (quoting Federated Dep’t Stores, Inc. v.
Moitie, 452 U.S. 394, 398 (1981)). The Fourth Circuit has held that 42 U.S.C. §
405(h) codifies res judicata and prevents final decisions by the Agency from being
relitigated. See Lively v. Sec’y of Health & Human Servs., 820 F.2d 1391, 1392 (4th
Cir. 1987); 42 U.S.C.A. § 405(h) (“The findings and decision of the Commissioner
of Social Security after a hearing shall be binding upon all individuals who were
parties to such hearing. No findings of fact or decision of the Commissioner of
Social Security shall be reviewed by any person, tribunal, or governmental agency
except as herein provided.”) Applying res judicata to social security cases prevents
the Agency “from reaching an inconsistent result in a second proceeding based on
evidence that has already been weighed in a claimant’s favor in an earlier
proceeding.” Lively, 820 F.2d at 1392; see also United States v. Utah Const. &
Min. Co., 384 U.S. 394, 422 (1966). However, Congress can override common law
principles of res judicata by crafting legislation with alternate procedures. See
Astoria Fed. Sav. & Loan Ass’n v. Solimino, 501 U.S. 104, 108 (1991) (“Thus,
-35-
where a common-law principle is well established … the courts may take it as
given that Congress has legislated with an expectation that the principle will apply
except when a statutory purpose to the contrary is evident.”) (internal quotation
marks and citations omitted); Albright v. Comm’r of Soc. Sec. Admin., 174 F.3d
473, 478 n.10 (4th Cir. 1999) (recognizing authority for SSA to reopen previous
final decisions under certain circumstances).
As the Robertson court stated, the principles of res judicata prevent the
Agency from revising decisions based on the same evidence, absent an exception
provided by the Act. Because the redetermination process excludes evidence
believed to contain fraud, the file is no longer the same as it was at the time of the
original determination. See Robertson, 2017 WL 1170873, at *15. As stated herein,
claimants in redetermination proceedings are allowed to supplement their files with
new medical and other evidence, which the ALJ reviews as a whole when
redetermining benefits. Here, the ALJ did not consider precisely the same evidence
during the redetermination because Dr. Ammisetty’s reports were excluded from
such consideration. This difference makes the new ALJ’s redetermination different
than merely revising an ALJ’s decision based on the same information. See
Robertson, 2017 WL 1170873, at *15 n.17. That being the case, I find Taylor’s res
judicata argument unpersuasive.
I also find that 42 U.S.C. § 405(u) overrides common law res judicata
principles. Title 42 U.S.C. § 405(h) limits reviewing final determinations by the
Agency unless specifically provided for in the statute. Section 405(u) explicitly
authorizes the SSA to redetermine claimants’ benefits after receipt of an OIG
referral based on a reason to believe fraud was involved in the claimant’s
application for benefits. Therefore, the statutory scheme provides a mandate that
overrides principles of res judicata. See Robertson, 2017 WL 1170873, at *15. As
-36-
the Robertson court found, “Congress would not have created a redetermination
process that could be displaced by common law res judicata principles as it would
make § 405(u) meaningless.” 2017 WL 1170873, at *15. Furthermore, § 405(h)
allows for certain exceptions to reviewing final determinations, one of which is the
redetermination process. See Robertson, 2017 WL 1170873, at *15. Therefore, I
find that the redetermination process fits within the statutory scheme that protects
res judicata concerns while, at the same time, allowing for revisions when the
Agency discovers changed circumstances. That being the case, I find Taylor’s res
judicata argument unpersuasive.
b. Section 405(b)
Taylor argues that the redetermination process runs counter to the Act’s
requirements regarding procedural protections in § 405(b). I am not persuaded by
Taylor’s argument because, as the Commissioner argues, § 405(b) simply does not
apply to redeterminations. As the Robertson court noted, in deciding whether the
redetermination process falls under the procedural protections contained in
§ 405(b), the court must engage in an exercise of statutory construction. See 2017
WL 1170873, at *12. Section 405(b) states “[a]ny … decision by the
Commissioner of Social Security which involves a determination of disability and
which is in whole or in part unfavorable to such individual shall contain” various
procedural protections, including the right to a hearing on the evidence relied upon.
42 U.S.C.A. § 405(b) (West 2011 & Supp. 2017) (emphasis added). In this case,
the Commissioner did not make the decision that there was reason to believe fraud
was involved in Taylor’s application; the OIG did pursuant to its authority in §
1129(l) of the Act. See 42 U.S.C.A. § 1320a-8(1). The Commissioner has no role
in the OIG’s determination of fraud under § 405(u). See Robertson, 2017 WL
1170873, at *12; 42 U.S.C.A. § 405(u). Instead, the OIG’s referral is made after a
-37-
separate investigation. The OIG’s referral merely triggers the redetermination
process and mandates the exclusion of tainted evidence. See Robertson, 2017 WL
1170873, at *12. The Robertson court found that “[r]eading the statute’s plain
language, … the SSA has complied with the Act’s requirements. The
redeterminations, as currently structured, provide hearings with the opportunity for
new evidence, evidentiary challenges to the information remaining in the file,
witnesses, and written decisions analyzing the evidence and arguments presented at
the hearing.” Robertson, 2017 WL 1170873, at *12. While § 405(u) does not
require such hearings, the Agency has properly provided claimants facing potential
adverse decisions hearings on the evidence, as required by § 405(b).
c. Reopening Regulations
Taylor argues that the redeterminations should follow reopening procedures,
found at 20 C.F.R. § 404.987 et seq., which require a finding of fraud by the
Commissioner before benefits may be revised. I am not persuaded by this
argument because the reopening regulations are not applicable to redeterminations
conducted pursuant to § 405(u). The Carter, Robertson and Smith courts all found
this same argument unconvincing, recognizing the distinction between reopenings
and redeterminations. In Robertson, the court noted that “[r]eopenings require the
SSA to make a finding of fraud or similar fault before reopening and revising a
claimant’s benefits.” 2017 WL 1170873, at *13 (citing 20 C.F.R. § 404.988). Thus,
if a claim for benefits is reopened under these regulations, a claimant would be
able to challenge the Agency’s determination of fraud as part of the
Commissioner’s final decision. See Robertson, 2017 WL 1170873, at *13.
However, as stated above, redeterminations triggered by OIG investigations,
provide for an independent fraud determination that occurs separate from the
Agency. See Robertson, 2017 WL 1170873, at *13. The OIG referral is based on
-38-
reason to believe fraud existed, but that determination is not made by the
Commissioner and does not affect the Commissioner’s final decision to award or
terminate a claimant’s benefits on redetermination. See Robertson, 2017 WL
1170873, at *13. Thus, the Robertson court found that the Agency’s interpretation
that reopenings exist separately from redeterminations follows the different
structure provided in the Act itself. See 2017 WL 1170873, at *13. Specifically, in
Robertson v. Colvin, 2016 WL 3406134, at *2 (S.D. W. Va. June 17, 2016), 13 the
court noted that “Congress labeled this authority [42 U.S.C. § 405(u)] a
‘redetermination;’ therefore, Defendant need not act under the authority required to
‘reopen’ a claim.” The court further noted that when Congress uses different
language to describe a new process, the court will consider that differentiation
important and deliberate. See Robertson, 2017 WL 1170873, at *13 (citing Bd. of
Educ. of Westside Cmty. Sch. v. Mergens by & through Mergens, 496 U.S. 226,
242 (1990) (“Congress’ deliberate choice to use a different term … can only mean
that it intended to establish a standard different from the one [previously]
established.”)).
Likewise,
in
Carter
and
Smith,
the
courts
held
that
redeterminations are distinct from reopenings, and the Agency’s interpretation of
the statute is entitled to deference. See 220 F. Supp. 3d at 807; see also 2017 WL
5256872, at *4. According to Social Security Ruling, (“S.S.R.”), 16-1p, “[f]raud
and similar fault redeterminations under sections 205(u) and 1631(e)(7) of the Act
are distinct from reopenings as described in 20 C.F.R. [§§] 404.987-404.996. …”
S.S.R. 16-1p, 2016 WL 1029284, at *1 n.1 (West Mar. 14, 2016). Section (D)(3) of
the same ruling states as follows: “An individual may appeal our finding of fraud
or similar fault. However, we will not administratively review information
provided by SSA’s [OIG] under section 1129(l) of the Act regarding its reason to
believe that fraud was involved in the individual’s application for benefits.” S.S.R.
13
This was a decision as to the plaintiff’s motion for a preliminary injunction.
-39-
16-1p(D)(3), 2016 WL 1029284, at *5. While Social Security Rulings do not have
the force or effect of law, they are entitled to Chevron 14 deference, insofar as they
directly involve construction of the statute at issue. See Garcia v. Sec’y of Health
& Human Servs., 46 F.3d 552, 557 (6th Cir. 1995); see also Skidmore v. Swift &
Co., 323 U.S. 134, 140 (1944) (an agency’s rulings, interpretations and opinions
under its statute are entitled to deference).
In addition to Social Security Rulings, the conclusion that redeterminations
are distinct from reopenings also is apparent from the Agency’s promulgation of
distinct guidelines for the process found in HALLEX. Specifically, HALLEX I-13-25(C)(4)(a) states as follows:
Under sections 205(u) and 1631(e)(7) of the Act, adjudicators do not
have discretion to reconsider the issue of whether the identified
evidence should be disregarded when based on an OIG referral of
information or a referral based on information obtained during a
criminal or other law enforcement investigation. However, when the
redetermination is based solely on an SSA finding of fraud or similar
fault, an adjudicator can consider a beneficiary’s or recipient’s
objection to the disregarding of certain evidence.
Because the Act is silent on hearings, it stands to reason that Congress did not
14
Chevron deference refers to the doctrine of judicial deference given to administrative
actions. In Chevron U.S.A., Inc. v. Nat. Res. Defense Council, Inc., 467 U.S. 837 (1984), the
Supreme Court set out a legal test regarding when the court should defer to an agency’s statutory
interpretation. The Court held that such judicial deference is appropriate where the agency’s
interpretation is not unreasonable, as long as Congress has not spoken directly to the precise
issue in question. See Chevron, 467 U.S. at 845. When a legislative delegation to an
administrative agency on a particular issue or question is implicit, as opposed to explicit, a court
may not substitute its own interpretation of the statute for a reasonable interpretation made by the
administrative agency. See Chevron, 467 U.S. at 845. When the statute is silent or ambiguous
with respect to the specific issue, the question for the court is whether the agency’s action was
based on a permissible construction of the statute. See Chevron, 467 U.S. at 843. “Permissible”
has been defined to mean “reasonable.” See Encino Motorcars, LLC v. Navarro, 136 S. Ct.
2117, 2124 (2016).
-40-
envision hearings on the threshold question of fraud, and the Agency’s
interpretation is reasonable and entitled to deference. Congress’s intention that
there be a distinction between redeterminations and reopenings also is supported
by the legislative history, which shows that Congress enacted § 405(u) because it
believed the reopening rules were “cumbersome and unworkable” in addressing
cases of fraud in applications for benefits. Carter, 220 F. Supp. 3d at 807.
d. Timeliness
Taylor also argues that the Agency violated the mandate contained in
§405(u) to “immediately” commence redetermination proceedings once it had
notice of fraud. For the reasons that follow, I find this argument unpersuasive.
Section 405(u) provides that the Commissioner is to act immediately to
redetermine benefits where there is reason to believe that fraud was involved in a
claimant’s application. However, the statute contemplates that the Agency may
delay taking adverse action if it would jeopardize a criminal prosecution. See 42
U.S.C.A. § 405(u)(1)(A); see also Smith, 2017 WL 5256872, at *8. In this case, on
May 12, 2015, the Agency received a referral from the OIG pursuant to § 1129(l)
of the Act, found at 42 U.S.C. § 1320a-8(1), informing the Agency that it had
reason to believe that fraud had been involved in 1,787 individuals’ benefits
applications, including Taylor’s. Less than a week later, on May 18, 2015, SSA
notified individuals, including Taylor, that a redetermination of their benefits
would be initiated. Although Taylor points to an earlier letter from OIG, dated July
2, 2014, regarding the probable fraud, he admits that letter stated that “SSA would
not take any adverse action against any individual on the list until further notice.”
Thus, I find that this correspondence cannot be deemed a referral from the OIG.
That being the case, I find that the Agency, pursuant to the statute, waited to notify
individuals that their benefits would not be redetermined until after it received an
-41-
actual referral from the OIG, on May 12, 2015, permitting it to undertake such
action. See 42 U.S.C.A. §§ 405(u)(1)(A), 1320a-8(1).
As the court noted in Carter, while the Commissioner may have had reason
to believe that widespread fraud was taking place years earlier, the statutory
mandate for such fraud investigations is vested in the OIG. [insert cite]
Specifically, 42 U.S.C. § 1320a-8(1) provides that the OIG is to make information
available to the Commissioner immediately when there is reason to believe fraud
has occurred, but it provides that the OIG may delay if such a referral would
interfere with a pending criminal investigation. See 42 U.S.C.A. § 1320a-8(l). This
is precisely what the OIG did here. OIG notified the Agency, by letter, once it
determined there was reason to believe that fraud had occurred, but it also advised
the Agency not to undertake any action until further notice. Because triggering
redetermination proceedings for approximately 1,800 individuals may have
interfered with criminal proceedings, I find that any delay in the referral period
was justified. As the court in Carter noted, investigating and substantiating claims
of fraud takes time, especially where internal misconduct and alleged cover-ups
were involved. See 220 F. Supp. 3d at 808. Also in Carter, the court found that,
while a “more expeditious process” would have benefitted all parties involved,
including the public fisc, the delay was “part-and-parcel to the fraud on which the
redeterminations are based.” 220 F. Supp. 3d at 808. As the court stated in Smith,
although the record does not contain a certification from a prosecutor, as
contemplated by the statute, the language of the referral, the history of the
investigation as set forth in related cases, and the fact that Conn, ALJ Daugherty
and Dr. Adkins were indicted on April 1, 2016, make clear that a criminal
investigation was underway or at least contemplated when the July 2014 initial
letter was sent. See Smith, 2017 WL 5256872, at *8.
-42-
Also, Taylor has failed to show that the time lapse actually amounts to a
violation of the statute or that a remedy exists therefor. See Carter, 220 F. Supp. 3d
at 809 (citing Transamerica Mortg. Advisors, Inc. (TAMA) v. Lewis, 444 U.S. 11,
23-24 (1979) (to determine whether a private remedy exists in a statute “the central
inquiry [is] whether Congress intended to create, either expressly or by
implication, a private cause of action.”)); see also Smith, 2017 WL 5256872, at *9.
As the Robertson court stated, the statute does not contain language regarding the
consequences to the Agency if it fails to act with immediacy. See 2017 WL
1170873, at *10; see also Smith, 2017 WL 5256872, at *9. Thus, as the Robertson
court found, even if the Agency could have acted sooner, when the investigation
began, this court will not penalize the Agency by barring the redetermination
process when such a penalty is not provided for within the Act. See 2017 WL
1170873, at *11. Also, the fact that the Agency, itself, is allowed to reopen a
disability determination at any time for fraud or similar fault supports the idea that
the immediacy requirement was created to protect the public fisc rather than to
provide a claimant with a speedy redetermination. See Robertson, 2017 WL
1170873, at *10 (citing 20 C.F.R. § 404.988(c) (allowing reopening for claims
obtained by fraud at any time)); see also Smith, 2017 WL 5256872, at *9.
For all of these reasons, I find there is no genuine dispute of material fact,
and I will enter summary judgment in the Commissioner’s favor on Taylor’s
claims contained in Counts III, V and VI.
3. Claims of Violations of the APA
Taylor next argues that the redetermination hearings are subject to the
APA’s procedural and substantive protections against actions undertaken by
government agencies. See 5 U.S.C.A. §§ 551 et seq. (West 2017). First, Taylor
-43-
argues that the redetermination hearings violate the strict rule against mixing
investigatory and adjudicative functions. Secondly, Taylor contends that the
redetermination hearings violate the evidentiary rules for formal adjudications.
Lastly, Taylor argues the Commissioner’s decision was arbitrary and capricious, in
violation of the APA. I am not persuaded by any of these arguments. The APA’s
formal hearing requirements are limited to adjudications “required by statute to be
determined on the record after opportunity for an agency hearing.” 5 U.S.C.A. §
554(a) (West 2017); see also Doolin Sec. Sav. Bank, F.S.B. v. F.D.I.C., 53 F.3d
1395, 1402 (4th Cir. 1995) (“The APA creates no greater rights to a formal hearing,
where, as here, the statute and regulations do not provide a hearing on the record”).
Nothing in § 405(u) requires the Agency to provide a formal hearing on the record
on the issue of fraud, and, thus, the APA’s formal adjudication requirements do not
apply. See Carter, 220 F. Supp. 3d at 810 (rejecting argument that the APA formal
adjudication requirements apply to § 405(u)); Perkins, 224 F. Supp. 3d at 579
(same). Although § 405(u) does not require any hearing, as previously explained,
Taylor was provided with a number of procedural protections, including a hearing
before an ALJ and the opportunity to provide evidence during that hearing to
establish that he was entitled to benefits at the time of the application.
Taylor argues that, because under § 405(u), the ALJ had to accept the OIG’s
fraud allegation as determinative of the fraud issue, the redetermination process
violates the APA’s rule that the ALJ may not be directed by the Agency’s
investigative or prosecutorial functions. See 5 U.S.C.A. § 554(d) (West 2017)
(“[An ALJ] may not be responsible to or subject to the supervision or direction of
an employee or agent engaged in the performance of investigative or prosecuting
functions for an agency. An employee or agent engaged in the performance of
investigative or prosecuting functions for an agency in a case may not, in that or a
factually related case, participate or advise in the decision, recommended decision,
-44-
or agency review pursuant to section 557 of this title, except as witness or counsel
in public proceedings.”). Taylor argues that 5 U.S.C. § 554(d) mandates an
“absolute firewall” be maintained between investigators and adjudicators
performing their respective functions within the Agency. I find Taylor’s argument
misplaced. A fraud determination made by the OIG under § 405(u) merely triggers
the initiation of the redetermination process. The ALJs, then, make an independent
decision under the Act as to whether the record evidence, minus the allegedly
fraudulent evidence, supports an entitlement to disability benefits. See 42 U.S.C.A.
§ 405(u)(3) (West 2011 & Supp. 2017). The OIG does not play any role in the
determination of whether a claimant is entitled to benefits.
Taylor also argues that redetermination hearings violate the evidentiary rules
requiring formal adjudications under the APA. I disagree. Taylor argues that the
APA requires that the administrative transcript testimony and exhibits, together
with all papers and requests filed in the proceeding, “constitutes the exclusive
record for decision.” 5 U.S.C.A. § 556(e) (West 2017). Taylor argues that, because
there is nothing in his administrative record setting forth the evidence used by the
OIG to find fraud and trigger the redetermination, he could not show to the
contrary. Because, as explained above, the Agency’s decision that Taylor was not
entitled to disability benefits did not rest on the OIG’s fraud determination, I find
Taylor’s argument to be without merit.
Lastly, Taylor argues that the Commissioner’s decision is arbitrary and
capricious, in violation of the APA. Specifically, he argues that the Agency has
created an arbitrary policy by adopting a bifurcated scheme for when beneficiaries
can challenge the fraud allegations. He explains that, under the HALLEX, if
allegations of fraud arise from someone inside the Agency who is not within the
OIG division, then he would be given the opportunity to challenge the allegations,
-45-
as well as a right to appeal. See HALLEX § I-1-3-25(C)(4)(a). However, when the
allegation of fraud comes from the OIG, the “adjudicators do not have discretion to
reconsider” OIG’s allegation. Taylor argues that the creation of such a dichotomy
in how claims are treated is not only arbitrary and capricious, but also not rooted in
any law. See 5 U.S.C.A. § 706(2) (West 2017). I find that this argument is without
merit. For the reasons explained above, and as stated in the Commissioner’s brief, I
find that Congress intended a different process for redeterminations, and the
Agency’s interpretation of the statute is entitled to deference.
For all of the foregoing reasons, I find there is no genuine dispute of material
fact and I will enter summary judgment in the Commissioner’s favor on Taylor’s
claims contained in Counts II, IV and VII.
B. Substantive Arguments
The Commissioner uses a five-step process in evaluating DIB claims. See 20
C.F.R. § 404.1520 (2017); see also Heckler v. Campbell, 461 U.S. 458, 460-62
(1983); Hall v. Harris, 658 F.2d 260, 264-65 (4th Cir. 1981). This process requires
the Commissioner to consider, in order, whether a claimant 1) is working; 2) has a
severe impairment; 3) has an impairment that meets or equals the requirements of a
listed impairment; 4) can return to his past relevant work; and 5) if not, whether he
can perform other work. See 20 C.F.R. § 404.1520. If the Commissioner finds
conclusively that a claimant is or is not disabled at any point in this process, review
does not proceed to the next step. See 20 C.F.R. § 404.1520(a) (2017).
As stated above, the court’s function in this case is limited to determining
whether substantial evidence exists in the record to support the ALJ’s findings. The
court must not weigh the evidence, as this court lacks authority to substitute its
-46-
judgment for that of the Commissioner, provided her decision is supported by
substantial evidence. See Hays, 907 F.2d at 1456. In determining whether
substantial evidence supports the Commissioner’s decision, the court also must
consider whether the ALJ analyzed all of the relevant evidence and whether the
ALJ sufficiently explained his findings and his rationale in crediting evidence. See
Sterling Smokeless Coal Co. v. Akers, 131 F.3d 438, 439-40 (4th Cir. 1997).
Substantively, Taylor argues that the ALJ’s decision is not supported by
substantial evidence. (Motion For Summary Judgment, (“Plaintiff’s Brief”), at 1314, 42-43.) In particular, Taylor argues that the ALJ erred by giving more weight
to the opinions of the state agency consultants, whose findings were factually
incorrect because they found that he had no complaints of back pain during his
only medical visit in July 2010. (Plaintiff’s Brief at 13, 42.) Taylor further argues
that the ALJ failed to properly develop and analyze the medical evidence.
(Plaintiff’s Brief at 13, 39-42.) Taylor also alleges that the ALJ failed to properly
consider the impact of his post-2011 evidence to the pre-2011 period. (Plaintiff’s
Brief at 13, 41-42.) Taylor contends that the ALJ should have obtained a medical
source statement to determine whether his 2013 diagnosis of degenerative disc
disease would have had an onset in 2010 or should have, at the very least, sent the
post-2011 medical records to the state agency physicians for consideration.
(Plaintiff’s Brief at 13, 41.)
Taylor first argues that the ALJ failed to develop the record based on the
2013 radiological evidence showing degenerative disc disease. More specifically,
he argues that the ALJ should have obtained a medical source statement from his
primary care providers at Family Care Center and the radiologist who read the xray as to whether this degenerative disc disease would have existed before
February 2011, or he should have, at the very least, sent the post-2011 medical
-47-
records to the state agency physicians for review. For the reasons that follow, I find
this argument unpersuasive.
It is well-settled that the ALJ does have a duty to help develop the record.
See Cook v. Heckler, 783 F.2d 1168, 1173 (4th Cir. 1986). Specifically, “… the
ALJ has a duty to explore all relevant facts and inquire into the issues necessary for
adequate development of the record, and cannot rely only on the evidence
submitted by the claimant when that evidence is inadequate.” Cook, 783 F.2d at
1173. However, the regulations require only that the medical evidence be
“complete” enough to make a determination regarding the nature and effect of the
claimed disability, the duration of the disability and the claimant’s residual
functional capacity. See 20 C.F.R. § 404.1513(e) (2017). “[T]he ALJ is not
required to function as the claimant’s substitute counsel, but only to develop a
reasonably complete record.” Zook v. Comm’r of Soc. Sec., 2010 WL 1039456, at
*4 (E.D. Va. Feb. 25, 2010) (quoting Clark v. Shalala, 28 F.3d 828, 830-31 (8th
Cir. 1994)). While the ALJ bears some responsibility for development of the
record, the ALJ “has the right to assume that counsel is presenting the claimant’s
strongest case for benefits.” Epperly v. Colvin, 2015 WL 5138373, at *5 (W.D. Va.
Aug. 31, 2015) (quoting Blankenship v. Astrue, 2012 WL 259952, at *13 (S.D.
W.Va. Jan. 27, 2012)). The Fourth Circuit has held that, in order for a case to be
remanded for failure to develop the record, two requirements must be met: (1) the
ALJ failed to fully inquire into the issues necessary for adequate development of
the record; and (2) such a failure is prejudicial to the claimant. See Marsh v.
Harris, 632 F.2d 296, 300 (4th Cir. 1980). Thus, courts must determine “whether
the record is adequate to support a judicious administrative decision[,]” which
centers on whether there are “evidentiary gaps” that prejudice the rights of the
claimant. Epperly, 2015 WL 5138373, at *5 (quoting Blankenship, 2012 WL
259952, at *13 (citing Marsh, 632 F.2d at 300).
-48-
Here, I find that the ALJ did not fail to fully inquire into the issues necessary
for adequate development of the record. In his decision, with regard to Taylor’s
back impairment, the ALJ did find that Taylor’s excellent earnings record prior to
June 2010 tended to support his allegation that he could not work due to pain after
this date. (R. at 14.) However, the ALJ further found that this was only one factor
he considered and that this factor was outweighed by other factors. (R. at 14.)
Specifically, the ALJ found that Taylor’s subjective allegations were not consistent
with the objective evidence during the relevant time period. (R. at 14.) This
objective evidence included physical examinations showing that Taylor could
stand and that he had a steady gait. (R. at 15.) Furthermore, despite Taylor’s
allegations of disabling back pain, he exhibited a full range of motion in his
extremities. (R. at 15.) An August 2010 physical examination also was
unremarkable with regard to Taylor’s complaints of back pain. (R. at 15.) While
the ALJ noted the 2013 x-ray reflected lumbar degenerative disc disease, he further
noted that this was well after the relevant time period. (R. at 15.) The ALJ found
that, despite Taylor’s complaints of back pain, there was no evidence of treatment,
imaging, diagnoses or clinical deficits during the relevant time period to support
the extent of his allegations. (R. at 15.) The ALJ concluded that Taylor’s lack of
treatment showed that his back impairment was not imposing more than minimal
vocational limitations during the relevant period. (R. at 15.)
It is clear from the ALJ’s decision that he thoroughly reviewed the evidence
before him as it related to the time period relevant to the redetermination of
Taylor’s award of benefits. I find that there are no “evidentiary gaps” in the record.
Instead, I find that there simply is a lack of evidence to support his allegations of
disabling back pain. As stated by the ALJ in his decision, the record shows that,
during the relevant time period, Taylor’s physical examinations were largely
unremarkable, showing that he could stand erect with a steady gait. (R. at 357, 372,
-49-
442.) Even after the relevant time period, however, Taylor’s physical examinations
remained largely benign. For instance, in March 2011, he could walk with a steady
gait, and he had no complaints of leg or muscle pain. (R. at 437.) In May 2011,
Taylor had a full range of motion of the extremities and normal reflexes. (R. at
436.) In October 2011, February 2012, and July 2012, Taylor’s spine and gait were
normal. (R. at 433-35.) In May 2013, despite complaints of lower back pain with a
burning sensation radiating into both legs and feet, he had a full range of motion of
the extremities, normal reflexes and a steady gait. (R. at 432.) X-rays taken in June
2013, showed levoscoliosis with degenerative disc and joint disease. (R. at 451.)
Nonetheless, in July 2013, Taylor had a full range of motion of the extremities and
a steady gait. (R. at 431.) He did exhibit paraspinal muscle tenderness and pain and
burning which radiated into the bilateral lower extremities. (R. at 431.) He received
Ultram. (R. at 431.) In August 2013, Taylor again had a full range of motion in his
extremities, and no gross neurological deficits were noted. (R. at 430.) In
November 2013, Taylor was noted to be limping. (R. at 429.) In February 2014, he
had full range of motion of the extremities, reflexes were normal, and no
neurological deficits were noted. (R. at 427.) In March 2014, a physical
examination yielded normal findings. (R. at 423.) In November 2014, Taylor again
had a full range of motion of the extremities and normal reflexes. (R. at 422.) In
February 2015, no deformities or muscle wasting were noted, Taylor had a normal
gait and ambulated without difficulty, he had no joint dislocation, instability or
subluxations, and he had full muscle strength and a normal range of motion
without crepitus. (R. at 392, 410.) In March 2015, despite Taylor’s complaints of
chronic bilateral extremity burning, tingling and numbness, a physical examination
was within normal limits. (R. at 419.) Also in March 2015, a physical examination
was largely normal, except for crepitation of both knees and trace pitting edema of
both lower extremities. (R. at 486.) A chest x-ray, dated March 12, 2015, showed
mild age-indeterminate wedge deformity of the L1 disc. (R. at 417, 480.) In April
-50-
2015, a physical examination was normal, except for mildly reduced range of
motion of the right elbow and crepitation of both knees. (R. at 494.) In August
2015, Taylor had a full range of motion of the extremities, and he exhibited normal
reflexes. (R. at 500.) In September 2015, he had positive bilateral straight leg raise
testing. (R. at 501.) In October 2015, Taylor had paraspinal muscle tenderness. (R.
at 502-03.) On October 26, 2015, despite Taylor’s complaints of back pain, which
he rated a 10 on a 10-point scale, he ambulated without difficulty, his gait was
within normal limits, and he had no focal deficits. (R. at 520-22.) There was
midline spinal tenderness, paralumbar tenderness, parathoracic tenderness and
buttocks tenderness, and range of motion was moderately decreased. (R. at 522.)
Straight leg raise testing was positive, and Taylor had a moderately antalgic gait.
(R. at 522.) However, Taylor was advised that his symptoms and examination were
most consistent with a benign musculoskeletal back injury, and he was given a
favorable prognosis. (R. at 523.) He declined a recommendation for physical
therapy. (R. at 523.)
Thus, even the medical evidence supplied by Taylor that is not relevant to
the time period for determining disability, contained mostly unremarkable or
benign clinical findings. He was treated conservatively over this time period, and
he declined a recommendation to undergo physical therapy. It is well-settled that a
diagnosis, alone, cannot constitute a basis for finding that a claimant is disabled.
See Musser v. Berryhill, 2017 WL 4399202, at *7 (W.D. Va. Sept. 29, 2017)
(citing 20 C.F.R. § 404.1505 (defining disability)). Instead, the diagnosis must
result in work-preclusive limitations. Here, despite 2013 x-rays reflecting that
Taylor suffered from levoscoliosis with degenerative disc and joint disease, the
record does not support a finding that such condition resulted in disabling
limitations.
-51-
To the extent that Taylor is arguing that the ALJ should have ordered a
consultative examination, I also am not persuaded. Title 20 C.F.R. § 404.1512(f)
provides that a consultative examination is required when the needed information
is not readily available from the records of the claimant’s medical treatment
source, or the Commissioner is unable to seek clarification from the claimant’s
medical source. 20 C.F.R. § 404.1512(b)(2) (2017). A consultative examination
also is required when the record evidence, as a whole, is insufficient to support a
decision or when “[t]here is an indication of a change in [the claimant’s] condition
that is likely to affect [the claimant’s] ability to work, but the current severity of
[the claimant’s] impairment is not established.” 20 C.F.R. § 404.1519a(b)(4)
(2017). Importantly, “the decision to order a consultative examination is
committed to the discretion of the ALJ, and where the record as a whole provides
sufficient, unambiguous, and non-conflicting evidence to support the ALJ’s
decision, a consultative examination is not required.” Keplinger v. Astrue, 2008
WL 4790663, at *5 (W.D. Va. Nov. 3, 2008). For all of the reasons stated above, I
find that the record was complete enough for the ALJ to make an informed
decision that Taylor was not disabled during the relevant time period. I also note
that neither Taylor nor his counsel requested that the ALJ obtain such a
consultative examination. Finally, I find that the evidence of record generally is in
agreement and, thus, the ALJ did not have any conflicts to resolve that would be
served by a consultative examination. For all of these reasons, I find that the ALJ’s
decision was based on an adequately developed record, and the ALJ was within his
discretion in not ordering a consultative examination.
Taylor also argues that the ALJ erred by giving great weight to the opinions
of the state agency physicians. In particular, he contends that the ALJ so erred
because the state agency physicians’ opinions rest on their incorrect finding that, at
his only medical visit in July 2010, Taylor did not complain of back pain.
-52-
(Plaintiff’s Brief at 42.) Thus, the state agency physicians concluded that his
complaints of pain in his back and extremities could not be the result of a medical
determinable impairment. To the contrary, Taylor alleges that this July 2010
treatment note indicates that he had a history of chronic back pain, and it reflected
his statement that he was quitting his job because he could not tolerate his back
pain. (Plaintiff’s Brief at 42.) For the reasons that follow, I find that the ALJ’s
weighing of the evidence is supported by substantial evidence.
A review of the July 13, 2010, treatment note from Family Care Center
shows that Taylor’s chief complaint was increased blood pressure. (R. at 357.) He
did not actively complain of back pain on that date. This note also reflects that
Taylor stood erect and had a steady gait, and no gross neurological deficits were
noted. (R. at 357.) A history of chronic back pain was noted, as well as Taylor’s
statement that he was quitting work because he could not tolerate the pain in his
back. (R. at 357.) However, no diagnosis related to Taylor’s back pain was
rendered on that date, and no medications were prescribed to treat such a condition.
In August 2010, state agency physician, Dr. Spetzler, reviewed Taylor’s
allegations and the medical records at the initial level of administrative review. Dr.
Spetzler noted Taylor’s allegation of a history of chronic back pain in July 2010
and his statement regarding quitting work, but he observed that the medical
evidence of record showed just medications for cholesterol and high blood
pressure. He further noted that in July 2010, Taylor had a normal range of motion,
no edema, he could stand erect, and his gait was steady. Dr. Spetzler further noted
that no imaging studies or treatment was ordered at this time. Dr. Spetzler
concluded that, despite Taylor’s complaints of back pain, as well as pain and
numbness in the legs, feet, arms and hands, there was no evidence of significant
muscle weakness or nerve damage that would prevent him from working. (R. at
-53-
93.) Likewise, in October 2010, Dr. Duckwall arrived at the same conclusion after
reviewing Taylor’s allegations and his medical evidence on reconsideration. Dr.
Duckwall found that Taylor’s impairments remained nonsevere for the same
reasons that Dr. Spetzler had stated in the initial determination.
The ALJ gave these opinions great weight, noting that the state agency
physicians are experts familiar with the Social Security disability program and that
they had the opportunity to review the records available at the time of their
determinations. (R. at 15-16.) The ALJ further noted that their opinions were
consistent with the mostly unremarkable examination findings and conservative
management of Taylor’s conditions. (R. at 16.) I find that substantial evidence
supports the ALJ’s weighing of the evidence. Contrary to Taylor’s argument, I find
that the state agency physicians acknowledged that Taylor had a history of reported
chronic back pain and that he stated he was quitting work because he could not
tolerate the pain. However, their conclusion that his back impairment was not
severe was based on the normal physical examination findings and the lack of
treatment for any back impairment contained in the July 2010 treatment note. Such
a conclusion is supported by the other evidence of record, as stated herein, which
shows that Taylor consistently had normal physical examinations, no imaging
studies, no clinical deficits and conservative treatment during the relevant time
period to the redetermination decision.
Based on the above, I find that substantial evidence exists in the record to
support the ALJ’s finding that Taylor was not disabled at any time from June 23,
2010, through February 2, 2011. I also find, for the reasons stated herein, that the
Commissioner is entitled to summary judgment on Taylor’s claims that the
redetermination procedure set forth in 42 U.S.C. § 405(u) violated his due process
rights, the Social Security Act or regulations and the APA. An appropriate Order
-54-
and Judgment will be entered.
DATED:
February 21, 2018.
s/
Pamela Meade Sargent
UNITED STATES MAGISTRATE JUDGE
-55-
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?