United States District Court, N.D. Ohio
MILTON L. BICKHAM, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant.
JEFFREY J. HELMICK JUDGE
REPORT AND RECOMMENDATION
Kathleen B. Burke United States Magistrate Judge
Milton L. Bickham (“Plaintiff” or
“Bickham”), acting pro se,
seeks judicial review of the final decision of Defendant
Commissioner of Social Security (“Commissioner”)
denying his application for social security benefits. Doc. 1.
This Court has jurisdiction pursuant to 42 U.S.C. §
405(g). This matter has been referred to the undersigned
Magistrate Judge for a Report and Recommendation pursuant to
Local Rule 72.2(b)(1).
15, 2019, Bickham filed his brief. Doc. 18. On September 13,
2019, Defendant filed his Brief. Doc. 20. Bickham's
appeal pertains to his 2017 application for supplemental
security income (“SSI”) benefits. As discussed
below, Bickham had an earlier application, which was filed in
2013. Benefits were awarded in connection with the 2013
application but, as indicated below, those benefits were
terminated in 2016 following a continuing disability review.
Bickham did not appeal from the termination of benefits
determination but thereafter filed the 2017 application that
is the subject of this appeal.
arguments for reversal and remand in this appeal are not
clear and, in many instances, Bickham makes statements and
refers to various propositions of law, e.g., malicious
prosecution and causes of action for benefits under ERISA,
which appear unrelated to the issues before this Court in his
appeal. Doc. 18, pp. 1-4. Considering the lack of substance
contained in Bickham's brief, the Court may deem
Bickham's arguments for reversal and remand waived.
See McPherson v. Kelsey, 125 F.3d 989, 995-996 (6th
Cir. 1997) (“Issues adverted to in a perfunctory
manner, unaccompanied by some effort at developed
argumentation, are deemed waived. It is not sufficient for a
party to mention a possible argument in the most skeletal
way, leaving the court to . . . put flesh on its
bones.”) (internal citations omitted).
event that the Court does not deem Bickham's arguments
waived, the undersigned, in light of Bickham's pro se
status, has endeavored to decipher from his brief the
arguments he is attempting to raise. Having liberally
construing Bickham's pro se brief, the undersigned reads
Bickham's appeal as (1) a challenge to the ALJ's
treatment of his 2017 application as a new application versus
a reopening of his prior claim; (2) a challenge to the
ALJ's decision not to adopt the prior disability
decision, which was based on medical records from Louisiana;
and/or (3) a claim that the ALJ did not adequately develop
the record. See Doc. 18, p. 3, ¶¶ 8-14
(Bickham indicates that the New Orleans' social security
office instructed him to apply at the Toledo office to get
his back payments; the Toledo office placed him in the system
as a “new beginner” as if he had never applied
for SSI benefits before, refused to look at paperwork from
New Orleans and medical records from another state, informed
him that his medical records did not work in Toledo; he was
born in New Orleans and his paperwork was in Louisiana.
Bickham also refers referring to statutes of limitations and
reasons why claims are not barred.) Giving Bickham the
benefit of the doubt, the undersigned has considered these
reasons discussed more fully below, the undersigned
recommends that the Court AFFIRM the
2013 SSI application
January 14, 2013, when Bickham was living in Louisiana, he
filed an application for SSI benefits. Tr. 30, 113, 117. In a
February 21, 2014, decision (Tr. 113-125), Administrative Law
Judge Mary Gattuso (“ALJ Gattuso”) found Bickham
had severe impairments of chronic liver disease, substance
addiction disorder, affective disorder, anxiety disorder, and
personality disorder and she found him disabled since January
14, 2013, the date the application was filed. Tr. 119, 124.
In that decision, ALJ Gattuso concluded that “[m]edical
improvement is expected with appropriate treatment.
Consequently, a continuing disability review [CDR] is
recommended in 12 months.” Tr. 125. Following a CDR,
medical improvement was found in November 2016 and
Bickam's SSI benefits were terminated at that time. Tr.
30, 142-143, 333. Bickham did not appeal that decision. Tr.
30, 55-56, 333.
2017 SSI application
protectively filed an application for SSI benefits on
February 1, 2017. Tr. 30, 301-316. He alleged a disability
onset date of January 14, 2013. Tr. 30, 311. Bickham's
alleged disabling impairments were initially reported to be
“unknown.” Tr. 185, 335. When seeking
reconsideration, Bickham reported that he was disabled due to
increased anxiety. Tr. 190, 348. Following initial denial
(Tr. 185-187) and denial on reconsideration (Tr. 190-191),
Bickham requested a hearing before an Administrative Law
Judge (Tr. 192-193). A hearing was conducted by
Administrative Law Judge Paul Sher (“ALJ”) on
April 23, 2018. Tr. 51-97. On July 26, 2018, the ALJ issued
an unfavorable decision. Tr. 27-50. In his decision, the ALJ
found that the period of January 14, 2013, through November
3, 2016, when Bickham's benefits were terminated without
an appeal being filed, would not be re-adjudicated and,
although Bickham alleged disability beginning in January
2013, there was no basis for reopening the prior
decisions/determinations. Tr. 30. The ALJ found that there
was new and material evidence showing a change in
circumstances and, therefore, he concluded that he was not
bound by the findings of the prior ALJ. Tr 30-31. The ALJ
concluded that Bickham had not been under a disability within
the meaning of the Social Security Act since February 1,
2017, the date the application was filed. Tr. 32, 44.
requested review of the ALJ's decision. Tr. 298, 396-398.
On November 26, 2018, the Appeals Council denied
Bickham's request for review, making the ALJ's July
26, 2018, decision the final decision of the Commissioner.
discussed above, Bickham's arguments are not entirely
clear. Additionally, while Bickham attaches a few records to
his brief (Docs. 18-1 through 18-4) - mostly notices from the
Social Security Administration - he does not cite to medical
evidence in support of his appeal.
Bickham's lack of reliance on and/or citation to specific
record evidence, the undersigned provides a brief summary of
Bickham's personal, vocational, educational and medical
evidence. A more complete discussion of the record evidence
is found in the ALJ's July 26, 2018, decision. Tr. 33-43.
was represented at the April 2018 administrative hearing and
testified. Tr. 53, 59-88. A Vocational Expert also testified
at the hearing. Tr. 88-93.
was born in 1965. Tr. 61. He was 52 years old at the time of
the hearing and living in Toledo. Tr. 59, 61. He graduated
from high school. Tr. 64, 88. When he was 14 years old, he
was involved in a fight with New Orleans' police
officers. Tr. 87. Per Bickham, he was hit in the head by the
police with batons and hospitalized as a result. Tr. 68, 87.
Since turning 19 years of age, Bickham has been incarcerated
on and off for about 25 years. Tr. 67, 74, 81. Bickham
stopped working on December 31, 2015. Tr. 335. While Bickham
had some past work, the ALJ found there was no past relevant
work. Tr. 65-67.
three to four years before coming to Toledo, Bickham lived in
New Orleans. Tr. 63. He originally traveled to Ohio because a
friend's mother had passed away and he was going to help
his friend move to New Orleans but he ended up not going back
to New Orleans because he lost his benefits. Tr. 63, 909-910.
year prior to the hearing, Bickham had been evicted from the
place he was renting because he could not pay the rent. Tr.
60-61. However, he was continuing to occupy the premises by
breaking into the house with his prior landlord's
knowledge. Tr. 60-61, 75, 77-78. His prior landlord gave him
some work to help keep him off the streets and from going to
jail. Tr. 61, 78-79. Bickham's former landlord checked on
Bickham and Bickham sometimes ate at her house. Tr. 75.
relayed that he was unable to work because of his mental
health problems and his attitude. Tr. 67-68, 341. Bickham has
been banned from social security offices. Tr. 151, 255, 258.
Also, the Zepf Center, the facility where Bickham receives
mental health treatment, has called security on him because
they felt he was scaring them based on how he was talking.
Tr. 85-86. Bickham ...