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Teasley v. Commissioner of Social Security

United States District Court, S.D. Ohio, Eastern Division

June 21, 2019

EUGENE TEASLEY, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Michael H. Watson, Judge.

          REPORT AND RECOMMENDATION

          CHELSEY M. VASCURA, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff, Eugene Teasley (“Plaintiff”), brings this action under 42 U.S.C. § 405(g) for review of a final decision of the Commissioner of Social Security (“Commissioner”) denying his application for a period of disability and disability insurance benefits. This matter is before the undersigned for a Report and Recommendation on Plaintiff's Statement of Errors (ECF No. 10), the Commissioner's Response in Opposition (ECF No. 13), Plaintiff's Reply (ECF No. 14), and the administrative record (ECF No. 9). For the reasons that follow, it is RECOMMENDED that Plaintiff's Statement of Errors be OVERRULED (ECF No. 10), and that the Commissioner's decision be AFFIRMED.

         I. BACKGROUND

         Plaintiff has filed several applications for Social Security benefits. On December 7, 2015, Plaintiff protectively filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act. He alleged a disability onset date of October 1, 2012. That claim was denied initially on February 3, 2016, and upon reconsideration on March 31, 2016. Administrative Law Judge Peter Boylan (“ALJ Boylan”) held a hearing and subsequently issued a decision on July 19, 2016 (“2016 Decision”), finding that Plaintiff was not disabled within the meaning of the Social Security Act. On October 14, 2016, the Appeals Council found no basis to review ALJ Boylan's decision.

         Subsequently, on March 9, 2017, Plaintiff protectively filed his current application for a period of disability and disability insurance benefits under Title II of the Social Security Act. In his application, Plaintiff alleged a disability onset of October 1, 2012. Plaintiff's application was denied initially on May 26, 2017, and upon reconsideration on August 29, 2017. Plaintiff sought a hearing before an administrative law judge. Administrative Law Judge Noceeba Southern (“ALJ Southern”) held a hearing on March 8, 2018, at which Plaintiff, represented by counsel, appeared and testified. Vocational expert Carol Mosley (the “VE”) also appeared and testified at the hearing. On March 27, 2018, ALJ Southern issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act (“2018 Decision”).

         Plaintiff requested that the Appeals Council review ALJ Southern's decision. Plaintiff also submitted additional evidence to the Appeals Council, including treatment records from Phillip R. Cox, OTR/L, dated April 25, 2006, and treatment notes from the Veteran's Administration Medical Center, dated March 15, 2018 to April 26, 2018. (R. at 2.) With respect to the evidence from April 25, 2006, the Appeals Council found that the evidence “does not show a reasonable probability that it would change the outcome of the decision, ” and declined to include the evidence as exhibits. (Id.) Regarding the treatment records dated March 15, 2018 to April 26, 2018, the Appeals Council found that because Plaintiff was last insured for disability benefits on December 31, 2017, the evidence does not relate to the period at issue. (Id.) The Appeals Council therefore concluded that the evidence “does not affect the decision about whether [Plaintiff was] disabled beginning on or before December 31, 2017.” (Id.) On July 20, 2018, the Appeals Council denied Plaintiff's request for review and adopted ALJ Southern's decision as the Commissioner's final decision. Plaintiff then timely commenced the instant action.

         In his Statement of Specific Errors (ECF No. 10), Plaintiff contends that ALJ Southern erred by (1) affording “no significant weight” to the Department of Veterans Affairs' (“VA”) disability rating; (2) failing to consider Plaintiff's right-hand pain and weakness a “severe, ” medically determinable impairment; (3) failing to include a limitation in Plaintiff's RFC for his inability to frequently use his right hand; and (4) failing to conduct a proper credibility assessment. (Pl.'s Statement of Errors at 1-10, ECF No. 10.) Plaintiff also contends that “[i]n the event [Plaintiff's] discharge records from the Army were not considered in the 2016 Decision, it was error for the ALJ to not consider them new evidence in the 2018 Decision.” (Id. at 8.)

         II. THE ADMINISTRATIVE DECISIONS

         A. The 2016 Decision

         On July 19, 2016, ALJ Boylan issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act based upon a prior application for benefits. On October 14, 2016, the Appeals Council denied Plaintiff's request for review and adopted ALJ Boylan's decision as the Commissioner's final decision. Because Plaintiff did not further appeal, ALJ Boylan's July 19, 2016 decision is final. ALJ Boylan concluded that Plaintiff suffered from a number of severe, medically determinable impairments, including cerebral trauma, arthropathy, obstructive sleep apnea, affective disorder, anxiety disorder, and post- traumatic stress disorder. (R. at 235.) ALJ Boylan further found that Plaintiff retained the following residual functional capacity (“RFC”):

[C]laimant has the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b) except the claimant can never crawl or climb ladders, ropes or scaffolds; occasionally kneel, crouch, or stoop. The claimant can handle and finger frequently with the bilateral upper extremities, and can have no overhead reaching with the bilateral upper extremities. The claimant is limited to simple, routine tasks. The claimant can have occasional and superficial interactions with coworkers and supervisors, but no interaction with the public as part [of his] job duties. The claimant is not able to perform at a production rate pace work, such as generally associated with assembly line work, but can perform goal oriented work, such as generally associated with office cleaning work. The claimant is limited to tolerating occasional changes in a routine work setting.

(R. at 237.)

         B. The 2018 Decision

         On March 27, 2018, ALJ Southern issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act based upon his current application for benefits. (R. at 11-26.) ALJ Southern found that the 2016 Decision was “binding on all parties to the hearing through the date of its issuance.” (R. at 13.) She concluded that Social Security Acquiescence Rulings 98-3(6) and 98-4(6) apply to Plaintiff's claim because his application “represents a subsequent disability claim with respect to an unadjudicated period . . . arising under the same title of the Act as his prior claim, on which there was a final decision by an ALJ.” (R. at 14.) Consequently, ALJ Southern concluded that she is bound by the findings of the previous ALJ in the absence of new and material evidence or changed circumstances. (R. at 13.)

         At step one of the sequential evaluation process, [1] ALJ Southern found that Plaintiff had not engaged in substantial gainful activity since July 19, 2016, the date of the prior ALJ decision. (Id. at 14.) At step two, ALJ Southern found that Plaintiff had the severe impairments of history of cerebral trauma, arthropathy, obstructive sleep apnea, posttraumatic stress disorder, and affective and anxiety-related disorders. (Id. at 14.) At step three of the sequential process, ALJ Southern found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments described in 20 C.F.R. Part 404, Subpart P, Appendix 1. (Id. at 16-17.) ALJ Southern adopted the limitations from the 2016 Decision, and set forth Plaintiff's RFC as follows:

The claimant has the residual functional capacity (RFC) to perform light work as defined in 20 CFR 404.1567(b) except he can occasionally kneel, crouch, and stoop, but never crawl or climb ladders, ropes, or scaffolds. He can frequently handle and finger but not overhead reach with his upper extremities. He can perform simple, routine tasks. He can occasionally and superficially interact with coworkers and supervisors. He must not have interaction with the public as part of his job duties. He is not able to perform at a production rate pace work, such as generally associated with assembly line work, but he can perform goal oriented work, such as generally associated with office cleaning work. He can tolerate occasional changes in a routine work setting.

(Id. at 18.) In assessing Plaintiff's RFC, ALJ Southern assigned “great” weight to the opinions of state-agency reviewing physicians Drs. Back and Teague and state-agency reviewing psychologist Dr. Matyi; “little” weight to the opinion of state-agency reviewing psychologist Dr. Ebben; “little” weight to the opinion of consultative examiner Dr. Lopez-Suescum; “significant” weight to the opinion of consultative psychological examiner Dr. Collins; and “no significant weight” to the VA's determination that Plaintiff was totally and permanently disabled. (Id. at 21-23.) ALJ Southern also found that Plaintiff's subjective complaints were “not entirely consistent with the medical evidence and other evidence in the record . . . .” (Id. at 19.)

         At step four, ALJ Southern found that Plaintiff is unable to perform any past relevant work. (Id. at 24.) At step five, relying on the VE's testimony, ALJ Southern concluded that Plaintiff could perform jobs existing in significant numbers in the national economy. (Id. at 24.)

         She therefore found that Plaintiff was not disabled under the Social Security Act. (Id. at 24-25.)

         On July 20, 2018, the Appeals Council denied Plaintiff's request for review and adopted ALJ Southern's decision as the Commissioner's final decision.

         III. STANDARD OF REVIEW

         When reviewing a case under the Social Security Act, the Court “must affirm the Commissioner's decision if it ‘is supported by substantial evidence and was made pursuant to proper legal standards.'” Rabbers v. Comm'r of Soc. Sec., 582 F.3d 647, 651 (6th Cir. 2009) (quoting Rogers v. Comm'r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007)); see also 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). Under this standard, “substantial evidence is defined as ‘more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Rogers, 486 F.3d at 241 (quoting Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994)).

         Although the substantial evidence standard is deferential, it is not trivial. The Court must “‘take into account whatever in the record fairly detracts from [the] weight'” of the Commissioner's decision. TNS, Inc. v. NLRB, 296 F.3d 384, 395 (6th Cir. 2002) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 487 (1951)). Nevertheless, “if substantial evidence supports the ALJ's decision, this Court defers to that finding ‘even if there is substantial evidence in the record that would have supported an opposite conclusion.'” Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 406 (6th Cir. 2009) (quoting Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).

         Finally, even if the ALJ's decision meets the substantial evidence standard, “‘a decision of the Commissioner will not be upheld where the SSA fails to follow its own regulations and where that error prejudices a claimant on the merits or deprives the claimant of a substantial right.'” Rabbers, 582 F.3d at 651 (quoting Bowen v. Comm'r of Soc. Sec., 478 F.3d 742, 746 (6th Cir. 2007)).

         IV. ANALYSIS

         As set forth above, in his Statement of Errors, Plaintiff contends that ALJ Southern erred by (1) affording “no significant weight” to the VA's disability rating; (2) failing to consider Plaintiff's right-hand pain and weakness a “severe, ” medically determinable impairment; (3) failing to include a limitation in Plaintiff's RFC for his alleged inability to frequently use his right hand; and (4) failing to conduct a proper credibility assessment. (Pl.'s Statement of Errors at 1-10, ECF No. 10.) Plaintiff also contends that “[i]n the event [his] discharge records from the Army were not considered in the 2016 Decision, it was error for the ALJ to not consider them new evidence in the 2018 Decision.” (Id. at 8.) In his Reply, Plaintiff asserts that this Court should consider the additional evidence he submitted to the Appeals Council in this case. (Pl.'s Reply at 2, ECF No. 14.)

         A. ALJ's Consideration of Plaintiff's Alleged Right-Hand Impairment

         Several of Plaintiff's contentions relate to the ALJ's consideration of his alleged right-hand impairment. Plaintiff contends that ALJ Southern erred in failing to consider his worsening right-hand pain and weakness as a severe, medically determinable impairment. (Pl.'s Statement of Errors at 3, ECF No. 10.) He further contends that ALJ Southern should have included a limitation in his RFC for his alleged inability to frequently use his right hand. (Id. at 8.) Plaintiff asserts that the “new” evidence in the record should have altered the 2016 RFC assessment regarding his hand limitations. (Pl.'s Reply at 1-2, ECF No. 14.) Plaintiff also posits that, to the extent ALJ Boylan did not consider his 2006 VA discharge records in considering his right-hand limitations in the 2016 Decision, it was an error for ALJ Southern to not consider those records as “new” evidence in considering his current application. (Pl.'s Statement of Errors at 8, ECF No. 10.) Plaintiff's Reply also raises, for the first time, a contention that this Court should consider the additional medical records he submitted to the Appeals Council. (Pl.'s Reply at 2-3, ECF No. 14.)

         1. ALJ Southern's Application of Acquiescence Rulings 98-3(6) and 98-4(6) and Drummond to Plaintiff's Claim

         Although Plaintiff does not directly challenge ALJ Southern's application of Acquiescence Rulings 98-3(6) and 98-5(6) and Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997) to his claim, he contends that she failed to properly review the new evidence regarding his right-hand impairment. According to Plaintiff, proper review of the new evidence would have required ALJ Southern to deviate from ALJ Boylan's findings in the 2016 Decision. Accordingly, the undersigned must determine if ALJ Southern appropriately considered Plaintiff's current claim in light of the 2016 Decision.

         In Drummond, the United States Court of Appeals for the Sixth Circuit held that principles of res judicata apply to both claimants and the Commissioner in Social Security cases. 126 F.3d at 841-42. The Drummond Court specifically held that absent evidence of “changed circumstances” relating to a claimant's condition, “a subsequent ALJ is bound by the findings of a previous ALJ.” Id. at 842. Following Drummond, the Social Security Administration issued AR 98-4(6), which provides, in pertinent part, as follows:

[W]hen adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim, adjudicators must adopt such a finding from the final decision by an ALJ or the Appeals Council on the prior claim in determining whether the claimant is disabled with respect to the unadjudicated period unless there is new and material evidence relating to such a finding or there has been a change in the law, regulations or rulings affecting the finding or the method for arriving at the finding.

AR 98-4(6), 1998 WL 283902, at *3 (June 1, 1998).

         The Sixth Circuit recently clarified its Drummond decision in Earley v. Commissioner of Social Security, 893 F.3d 929 (6th Cir. 2018). In Earley, the ALJ found that Drummond required him to give preclusive effect to a prior RFC determination absent “‘new and material evidence documenting a significant change in the claimant's condition.'” Id. (record citation omitted). The Sixth Circuit disagreed with the ALJ's approach and held that “[a]n individual may file a second application-for a new period of time-for all manner of reasons and obtain independent review of it so long as the claimant presents evidence of a change in condition or satisfies a new regulatory threshold.” 893 F.3d at 932. The Sixth Circuit explained that “the key principles protected by Drummond-consistency between proceedings and finality with respect to resolved applications”-do not prohibit the Social Security Administration “from giving a fresh look to a new application containing new evidence or satisfying a new regulatory threshold that covers a new period of alleged disability while being mindful of past rulings and the record in prior proceedings.” Id. at 931. Thus, “[w]hen an individual seeks disability benefits for a distinct period of time, each application is entitled to review.” Id. at 933 (citations omitted). Nonetheless, “[f]resh review is not blind review, ” and “[a] later administrative law judge may consider what an earlier judge did if for no other reason than to strive for consistent decision making.” Id. at 934. Indeed, “it is fair for an administrative law judge to take the view that, absent new and additional evidence, the first administrative law judge's findings are a legitimate, albeit not binding, consideration in reviewing a second application.” Id. at 933.

         Here, as in Earley, ALJ Southern concluded that she was bound by the 2016 Decision in considering Plaintiff's 2017 application absent new and material additional evidence or changed circumstances. (R. at 13 (“[I]n the absence of new and material additional evidence or changed circumstances, a subsequent ALJ is bound by the findings of a previous ALJ or Appeals Council decision”).) Because ALJ Southern's decision was issued before Earley, the Court must ask whether ALJ Southern, “despite purporting to follow Drummond, gave the evidence a fresh look.” Johnson v. Comm'r of Soc. Sec., No. 2:17-CV-13126, 2018 ...


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