United States District Court, E.D. Kentucky, Southern Division, Pikeville
MEMORANDUM OPINION & ORDER
M. Hood Senior U.S. District Judge
matter is before the Court upon cross motions for summary
judgment [DEs 8, 9 and 11]. Plaintiff has filed a reply [DE 12].
For the reasons stated below, the Acting Commissioner's
motion for summary judgment will be granted.
Court's review of the Acting Commissioner's decision
concerning disability upon reconsideration is limited to an
inquiry into whether or not the findings of the Acting
Commissioner are supported by substantial evidence, and
whether the correct legal standards were applied.
See 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 390, 401 (1971). Moreover, this
Court's review is limited “to the particular points
that [the claimant] appears to raise in [his] brief on
appeal.” Hollon v. Comm'r of Soc. Sec.,
447 F.3d 477, 491 (6th Cir. 2006).
Faye Blackburn filed an application for Disability Insurance
Benefits in September 2013, her fourth, alleging disability
commencing in January 2008 [TR. 222-234]. After being denied
initially and upon reconsideration [TR 103-41], Blackburn
requested a hearing [TR 165-66]. Her case was heard [TR
39-51] by Administrative Law Judge (ALJ) Maria Hodges, who
issued an unfavorable decision on January 29, 2016 [TR.
22-32]. In her denial decision, the ALJ the ALJ declined to
reopen Plaintiff's prior applications and adjudicated the
period between May 11, 2012 (the day after the most recent
ALJ decision) and December 31, 2012) (Plaintiff's date
last insured for DIB purposes) [TR 22]. The ALJ concluded that
Plaintiff was not disabled within the meaning of the Act
during the relevant period [TR 22-32]. The Appeals Council
denied Plaintiff's request for review in July 2016 [TR
1-4]. This appeal followed.
initial question presented is Plaintiff's contention that
the Court should look back to March 2008, even though she has
had three prior applications for DIB denied. Plaintiff also
contends that the ALJ de facto reopened her earlier denial
decision. Both arguments are flawed.
contends that the ALJ “affirmed the de facto
reopening” of her initial 2009 decision. There are two
problems with this contention. First, Plaintiff is relying on
the 2012 ALJ decision, not the 2015 decision that is under
appeal here. In the 2015 decision, the ALJ expressly declined
to reopen the 2012 decision [TR 22], so even if
Plaintiff's characterization of what the ALJ did in 2012
was accurate, it would still not be under review in this
appeal. See 20 C.F.R. §§ 404.981
(“[T]he decision of the administrative law judge . . .
is binding unless you . . . file an action in Federal
district court . . . within 60 days after the date you
receive notice of the Appeals Council's action.”),
§404.987 (“[I]f you are dissatisfied with a
determination or decision made in the administrative review
process, but do not request further review within the stated
period, you lose your right to further review and that . . .
decision becomes final.”). In any event, in 2012, the
ALJ refused to reopen Plaintiff's initial decision and
only adjudicated the narrow period-October 2010 to May
2012-that was before her [TR 82-83]. (“[T]he claimant
has not submitted any new evidence material to the prior
decision and there is therefore no good cause for
reopening.”)). This did not represent a de facto
reopening of the 2009 decision. See Hamlin v.
Comm'r of Soc. Sec., No. 96-3243, slip op. at 5 (6th
Cir. Dec. 17, 1996) (finding no de facto reopening where ALJ
expressly stated he was not reopening previous application
and stated that he was only considering the unadjudicated
order to reopen any of the prior ALJ decisions, Plaintiff
would need to meet one of the narrow exceptions enumerated at
20 C.F.R. § 404.988(c), which describe situations in
which a final decision may be reopened “[a]t any
time.”Plaintiff has made no attempt to explain
how she meets any of these reopening situations, and this
Court rejects any attempt by Plaintiff to argue she should be
found disabled starting in 2008. See also Califano v.
Sanders, 430 U.S. 99, 107-08 (1977) (finding no
jurisdiction to review refusal to reopen absent a
constitutional claim). Thus, this Court will not consider the
period of time other than that adjudicated by the ALJ on
Plaintiff's latest claim: May to December 2012.
now the opportune place to consider to the evidence germane
to the period in question. In the May 2012 decision, the ALJ
found that Plaintiff retained the ability to perform a
reduced range of light work with the following additional
limitations: stand and walk for at least four hours in an
eight-hour workday with a break every hour; not engage in
sustained or frequent overhead work; not required to use hand
held vibrating power tools; not climb hills, slopes, or work
on uneven terrain; not crawl, climb ladders, or work at
unprotected heights; occasionally bend, stoop, crouch, squat,
kneel, and climb stairs, steps, or ramps; not work in the
vicinity of heavy moving machinery, be exposed to vibration,
operate mobile equipment, engage in commercial driving, be
exposed to temperature extremes, or work in damp, humid
conditions; should wear corrective eyeglasses; understand,
remember, and carry out instructions toward performance of
simple repetitive tasks; sustain attention and concentration
toward performance of simple repetitive tasks; and could
frequently be exposed to supervisors, coworkers, and work
pressures [TR 89].
before and after that decision, Plaintiff saw her primary
care doctor Chad Thacker, M.D., and other providers in his
practice frequently (Tr. 1042-44, 1126-28). Before the 2012
decision, Plaintiff frequently reported back pain and
described her pain level was seven out of 10 (with 10 being
the worst possible pain). (Tr. 1043-44). She reported an
exacerbation of that pain in June 2012 (Tr. 1126), but in
July 2012, she told endocrinologist Belal Said, M.D., that
her pain was only four out of 10 (Tr. 154-57). In September
2012, Plaintiff told Dr. Thacker that her pain had gotten
worse over the weekend (Tr. 1127), but that December,
Plaintiff did not complain of increased pain and was
prescribed her usual medications (Tr. 1128). In 2013 and
2014-after her DIB insured status expired-Dr. Thacker
repeatedly noted that Plaintiff's chronic pain was stable
(Tr. 1186-88, 1214-15, 1221, 1237).
January 2014, state agency consultant Mary Thompson, Ph.D.,
considered Plaintiff's mental functioning after a review
of the records and adopted the mental limitations of the May
2012 ALJ decision (Tr. 118). In April 2014, state agency
consultant Leah Perritt, Ph.D., affirmed that opinion (Tr.
140). That month, another state agency consultant, P.
Saranga, M.D., adopted the physical RFC findings from the May
2012 decision (Tr. 139).
expert Harold Milstein, M.D., answered medical
interrogatories sent to him by the ALJ in December 2015 (Tr.
1304-09). He opined that Plaintiff could lift and carry 21 to
50 pounds frequently; sit eight hours total and one hour at a
time; stand four hours total and two hours at a time; walk
two hours total and one hour at a time; and continuously use
her right hand, operate foot controls, engage in postural
activities, and be exposed to environmental conditions (Tr.
point before the January 2015 decision, Plaintiff submitted a
letter from Dr. Thacker (Tr. 1316). He described
Plaintiff's condition and treatment and stated that
Plaintiff required multiple medications to maintain a normal
lifestyle and complete her activities of daily living (Tr.
1316). He concluded, “The above conditions prevent the
patient from being able to commit to any type of gainful
employment at all. These conditions along with the
patient's age would make any type of employment
impossible for the patient” (Tr. 1316).
January 2015 decision, the ALJ considered Plaintiff's
functioning between May and December 2012 (Tr. 22-32). As
relevant here, the ALJ found that Plaintiff had the following
severe impairments: degenerative disc disease with spinal
stenosis, status post right wrist fracture, and depression
(Tr. 25). The ALJ determined that Plaintiff had the residual
functional capacity (RFC) to perform a reduced range of light
work with the same additional limitations as contained in the
May 2015 ALJ decision (compare Tr. 27 with Tr. 89). While
Plaintiff could not perform her past relevant work with that
RFC, the ALJ found that she could perform other work existing
in significant numbers in the national economy (Tr. 31).
Thus, the ALJ concluded that Plaintiff was not disabled
within the meaning of the Act (Tr. 32).
submitted two additional medical documents to the Appeals
Council (Tr. 4). An April 2016 report from Anbu Nadar, M.D.,
purported to be prepared after an “orthopedic
evaluation” (Tr. 1319-21). He stated that Plaintiff was
limited in activity that required heavy lifting, ...