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Blackburn v. Berryhill

United States District Court, E.D. Kentucky, Southern Division, Pikeville

December 5, 2017

ELLA FAYE BLACKBURN, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, [1]Defendant.

          MEMORANDUM OPINION & ORDER

          Joseph M. Hood Senior U.S. District Judge

         This matter is before the Court upon cross motions for summary judgment [DEs 8, 9 and 11][2]. Plaintiff has filed a reply [DE 12]. For the reasons stated below, the Acting Commissioner's motion for summary judgment will be granted.

         The 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).

         Ella 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)[3] [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.

         The 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.

         Plaintiff 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 period).

         In 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.”[4]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.

         It is 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].

         Both 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).

         In 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).

         Medical 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. 1304-09).

         At some 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).

         In her 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).

         Plaintiff 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, ...


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