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Ford v. Berryhill

United States District Court, W.D. Kentucky, Paducah Division

June 9, 2017

DANIEL FORD PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security DEFENDANT

          MEMORANDUM OPINION AND ORDER

          Lanny King, Magistrate Judge.

         This matter is before the Court on Plaintiff's complaint seeking judicial review, pursuant to 42 U.S.C. § 405(g), of the final decision of the Commissioner denying his claim for Social Security disability benefits. The fact and law summaries of Plaintiff and Defendant are at Dockets 19 and 24, and the case is ripe for determination.

         The parties have consented to the jurisdiction of the undersigned Magistrate Judge to determine this case, with any appeal lying before the Sixth Circuit Court of Appeals. Docket 14.

         Due to a lack of evidence of improvement in Plaintiff's medical condition supporting departure from the prior administrative law judge's (ALJ's) finding that Plaintiff can only occasionally push and pull with the bilateral lower extremities, the current ALJ's decision did not comport with applicable legal standards (Drummond v. Comm'r). Therefore, the Court will REMAND this matter to the Commissioner for a new decision.

         Drummond v. Comm'r

         Drummond v. Comm'r, 126 F.3d 837 (6th Cir. 1997) held that the administrative law judge (ALJ) erred in finding that Drummond had a residual functional capacity (RFC) for medium work in light of the prior ALJ's finding that Drummond had an RFC for sedentary work. The error was due to a lack of evidence of improvement in Drummond's medical condition.

         Drummond was based on principles of fairness (to protect claimants from arbitrary re- adjudications of RFCs in subsequent claims) and administrative res judicata. “Just as a social security claimant is barred from relitigating an issue that has been previously determined, so is the Commissioner.” Id. at 842.

         In adopting Acquiescence Ruling 98-4(6), 1998 WL 283902, the Social Security Administration recognized the applicability of Drummond in cases arising within the Sixth Circuit:

When 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.

         Read together, Drummond and Acquiescence Ruling 98-4(6) establish that an ALJ is bound by the prior ALJ's RFC finding unless there is new and material evidence of a change (improvement) in the claimant's medical condition or a relevant change in the law.

         A Drummond error occurred.

         On May 3, 2010, while working as a deckhand on a barge, a cable broke and struck Plaintiff in the left leg. This resulted in a transverse fracture within the mid-femoral shaft, with some degree of comminution. The injury required multiple corrective surgeries. Administrative Record (AR), p. 73.

         The prior ALJ found that Plaintiff was disabled from May 3, 2010, through November 13, 2012, but that, as of November 14, 2012, he had recovered sufficiently to perform a significant number of light jobs in the national economy (office cleaner, laundry worker, doorkeeper/greeter). AR, p. 79.

         The prior ALJ found that (beginning on November 14, 2012) Plaintiff is limited to only occasional pushing/pulling with the bilateral lower extremities, in part, due to a bulging disc at ¶ 5-S1 with possible left-sided neural foraminal encroachment and likely impingement of the left S1 nerve root. AR, p. 73.

         The current ALJ identified no evidence that this medical condition had improved such that Plaintiff can now perform work requiring more than occasional ...


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