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Bickham v. Commissioner of Social Security

United States District Court, N.D. Ohio

October 7, 2019




          Kathleen B. Burke United States Magistrate Judge

         I. Introduction

         Plaintiff Milton L. Bickham (“Plaintiff” or “Bickham”), acting pro se, [1] 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).

         On July 15, 2019, Bickham filed his brief.[2] 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.

         Bickham's 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).

         In the 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 arguments.

         For the reasons discussed more fully below, the undersigned recommends that the Court AFFIRM the Commissioner's decision.

         II. Procedural History

         A. 2013 SSI application

         On 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.

         B. 2017 SSI application

         Bickham protectively filed[3] 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.

         Bickham 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. Tr. 1-6.

         III. Evidence

         As 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.

         Considering 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.

         Bickham 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.

         Bickham 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.

         Approximately 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.

         About a 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.

         Bickham 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 ...

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