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Eversole v. Colvin

United States District Court, Sixth Circuit

August 7, 2013

CAROLYN W. COLVIN, Acting Commissioner of Social Security[1], Defendant.


CANDACE J. SMITH, District Judge.

Plaintiff Eversole brings this action under 42 U.S.C. § 405(g), challenging Defendant Commissioner's final decision denying his application for benefits under the Social Security Act. Plaintiff has made several arguments, but the key question here is whether the Administrative Law Judge (ALJ) erred by determining that Plaintiff's medical condition had significantly improved since the time of the previous administrative decision. For the reasons explained herein, it will be recommended that the Commissioner's Motion for Summary Judgment (R. 13) be denied, that Plaintiff's Motion for Summary Judgment (R. 10) be granted in part and denied in part, and that this matter be remanded for further consideration.


In reviewing the decision of an ALJ in social security cases, the only issues before the reviewing court are whether the ALJ applied the correct legal standards and whether the decision is supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 390 (1971); Blakley v. Comm'r of Soc. Sec., 581 F.3d 399, 405 (6th Cir. 2009). The findings of the Commissioner are not subject to reversal merely because there exists in the record substantial evidence to support a different conclusion. Blakley, 581 F.3d at 406. "The substantial-evidence standard... presupposes that there is a zone of choice within which the decisionmakers can go either way, without interference by the courts." Id. (citing Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986)). Thus, even if the evidence could also support another conclusion, the decision of an ALJ must stand if the evidence could reasonably support the conclusion reached. Id. (citing Key v. Callahan, 109 F.3d 270, 273 (6th Cir. 1997)).

In this case, Plaintiff must establish that he is disabled within the meaning of the Social Security Act in order to qualify for benefits. 42 U.S.C. § 423(a)(1). The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A).

The Social Security Act requires the Commissioner to follow a five-step process when making a determination on a claim of disability. Vance v. Comm'r of Soc. Sec., 260 F.Appx. 801, 803-04 (6th Cir. 2008) (citing Abbott v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990)); Heston v. Comm'r of Soc. Sec., 245 F.3d 528, 534 (6th Cir. 2001). First, a claimant must demonstrate that he is not currently engaged in "substantial gainful activity." Vance, 260 F.Appx. at 803 (citing 20 C.F.R. §§ 404.1520(b), 416.920(b)). Second, if the claimant is not engaged in substantial gainful activity, he must demonstrate that he suffers from a severe impairment. Id. at 803-04. "A severe impairment' is one which significantly limits... physical or mental ability to do basic work activities.'" Id. at 804 (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). Third, if the claimant is not performing substantial gainful activity, has a severe impairment that is expected to last for at least twelve months, and the impairment meets or equals a listed impairment located at 20 C.F.R. pt. 404, subpt. P, app. 1, then the claimant is presumed disabled regardless of age, education or work experience. Id. (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)). Fourth, the claimant is not disabled if his impairment(s) does not prevent him from doing his past relevant work. Id. Lastly, even if the claimant cannot perform his past relevant work, he is not disabled if he can perform other work which exists in the national economy. Id. (citing Abbott, 905 F.2d at 923). Throughout this process, the claimant carries the overall burden of establishing that he is disabled, but the Commissioner bears the burden of establishing that the claimant can perform other work existing in the national economy. Id. (quoting Wilson v. Comm'r of Soc. Sec., 378 F.3d 541, 548 (6th Cir. 2004)).


This matter concerns Plaintiff's second application for Social Security benefits. Plaintiff's prior application was for Title II and Title XVI benefits, and ALJ Keller denied this application on March 15, 2008, noting that Plaintiff was able to perform limited sedentary work.[2] (A.R. 14, 56). This prior decision is administratively final.

Turning to the current matter, on April 20, 2010, Plaintiff protectively filed an application for supplemental security income, claiming disability beginning August 1, 2003. (A.R. 14). He alleged that he was disabled because of problems with his right hip, degenerative disc disease, and his S1 nerve. ( See id. at 143). Defendant denied this claim initially and upon reconsideration. (A.R. 14). Plaintiff requested a hearing before an ALJ, and a hearing was held on August 10, 2011, before ALJ Reynolds. ( Id. ). A vocational expert (VE) testified at that hearing, and Plaintiff was represented by counsel. ( See id.).

The ALJ used the five-step sequential process to determine that Plaintiff was not disabled. ( See A.R. 16-17). Plaintiff was fifty years old at the time of ALJ Reynolds's decision, had a ninth grade education, and had worked in the past as a horse groom, construction laborer, and painter. ( Id. at 17). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful employment activity since April 20, 2010, the application date. ( Id. ).

At step two, the ALJ determined that Plaintiff had the following severe impairments: congenital hip and low back pain secondary to degenerative disc disease of the lumbar spine with disc bulges and mild neuroforaminal narrowing; mild obesity; alcoholism; benzodiazepine, marijuana, and opioid dependency, allegedly in remission; degenerative joint disease of the bilateral knees; anxiety, not otherwise specified; and borderline intellectual functioning to low average intellectual functioning. (A.R. 17).

At step three, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments under the applicable Federal Regulations. (A.R. 18).

At step four, the ALJ considered the evidence and determined that Plaintiff had the residual functioning capacity (RFC) to perform jobs at the light exertional level, [3] subject to several limitations. ( See A.R. 22-23). In making this determination, ALJ Reynolds explicitly rejected ALJ Keller's opinion from 2008 that Plaintiff could perform limited sedentary work, and rejected the assessments of Kentucky Disability Determination Services. ( See id. at 23).

The ALJ proceeded to step five and adopted the VE's opinion that, given the stated RFC, there were unskilled, light exertion-level jobs in the national economy that Plaintiff would be able to perform, namely assembly and hand packing. ( See A.R. 25). Accordingly, on September 16, 2011, ALJ Reynolds determined that Plaintiff was not "disabled, " for social security purposes. ( Id. ).

Plaintiff appealed the ALJ's decision to the Social Security Appeals Council. On November 29, 2012, the Appeals Council affirmed the ALJ's determination, thereby making the ALJ's September 16, 2011, decision denying Plaintiff benefits the final decision of the Commissioner. (A.R. 1-3).

On January 24, 2013, Plaintiff, having exhausted his administrative remedies, timely filed a Complaint asserting that the ALJ's decision was erroneous. ( See R. 1). The matter has culminated in cross-motions for summary judgment. (R. 10, 13). These Motions have been referred to the undersigned for preparation of a Report and Recommendation under 28 U.S.C. § 636(b)(1)(B) (R. 3), and the Motions are now ripe for consideration.


Plaintiff raises the following three arguments on appeal: (1) ALJ Reynolds should not have discounted the prior determination by ALJ Keller that Plaintiff could only do a limited range of sedentary work, nor should ALJ Reynolds have rejected the opinion of consultative examiner Alireza Abdolmohammadi, M.D.; (2) Plaintiff meets listing 1.04 because of his medical conditions; and (3) Plaintiff met Grid Rule 201.09 on his fiftieth birthday because he was closely approaching advanced age, had a limited education, and performed unskilled work. ( See R. 10, at 1).

A. ALJ Reynolds's decision is deficient because it does not sufficiently show how Plaintiff's condition significantly improved from the time of the first disability determination.

Plaintiff argues that ALJ Reynolds erred by discounting the prior determination of ALJ Keller-which indicated that Plaintiff could only do a limited range of sedentary work. ( See R. 10-1, at 4; A.R. 63). ALJ Reynolds's decision was flawed, says Plaintiff, because there had been no change in applicable law, and there was no new and material evidence before the ALJ that justified an expansion of Plaintiff's RFC. ( See R. 10-1, at 4). Plaintiff also criticizes the ALJ for discounting the consultative examination of Dr. Abdolmohammadi, which evaluation diagnosed Plaintiff with degenerative disc disease with disc bulges from L1-2 through L5-S1 with decreased range of motion in the back and hips, resulting in restrictions in lifting and walking. ( See id. at 5).

1. The Drummond Standard

The Sixth Circuit Court of Appeals established in Drummond v. Commissioner, "that the principles of res judicata can be applied against the Commissioner." 126 F.3d 837, 842 (6th Cir. 1997). Accordingly, "[w]hen the Commissioner has made a final decision concerning a claimant's entitlement to benefits, the Commissioner is bound by this determination absent changed circumstances." Id. Furthermore, "[a]bsent evidence of an improvement in a claimant's condition, a subsequent ALJ is bound by the findings of a previous ALJ." Id. (citing Lively v. Sec'y of Health & Human Servs., 820 F.2d 1391 (4th Cir. 1987)); see also Dennard v. Sec'y of Health & Human Servs., 907 F.2d 598 (6th Cir. 1990) (per curiam) (holding that a second ALJ was precluded from reconsidering whether plaintiff could perform his past relevant work). In Drummond, the Sixth Circuit held, through the application of res judicata, that the Commissioner was bound by its prior determination that the claimant had the RFC to perform sedentary work because, "substantial evidence was not introduced that [claimant's] condition improved significantly between the two hearing dates." 126 F.3d at 843. Thus, considering the claimant's age at the time of her second application and limitation to sedentary work, the Sixth Circuit found her eligible for benefits and remanded the case with instructions for the district court to remand the case to the Commissioner for an award of benefits. Id.

In light of the holding in Drummond, the Commissioner issued an Acquiescence Ruling directing state agencies within the Sixth Circuit to follow Drummond by applying res judicata to a prior assessment of a claimant's RFC as well as other findings required in the sequential ...

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