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Lingar v. Berryhill

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

February 5, 2019

MARK LINGAR PLAINTIFF
v.
NANCY A. BERRYHILL, Acting Commissioner of the Social Security Administration DEFENDANT

          MEMORANDUM OPINION AND ORDER

          DAVID L. BUNNING, UNITED STATES DISTRICT JUDGE

         Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) to obtain judicial review of an administrative decision of the Commissioner of Social Security. The Court, having reviewed the record and the parties' dispositive motions, and for the reasons set forth herein, will affirm the Commissioner's decision.

         I. FACTUAL AND PROCEDURAL BACKGROUND

         On September 24, 2014, Plaintiff Mark Lingar protectively filed for a period of disability and Disability Insurance Benefits (DIB) under Title II. (Tr. 36). This application alleged disability beginning on August 24, 2012.[1] (Tr. 36). The application was initially denied, and again on reconsideration. (Tr. 36). At Plaintiff's request, an administrative hearing was conducted on October 12, 2016 before Administrative Law Judge (ALJ) Tommye C. Mangus. (Tr. 36, 56-77). On February 22, 2017 ALJ Mangus ruled that Plaintiff was not entitled to benefits. (Tr. 33-49). This decision became the final decision of the Commissioner on December 4, 2017 when the Appeals Council denied Plaintiff's request for review. (Tr. 1-3).

         Plaintiff filed the instant action on February 1, 2018 (Doc. # 1) alleging that the Commissioner's decision was not supported by substantial evidence. (Doc. # 8-1 at 1). The matter has culminated in cross-motions for summary judgment, which are now ripe for adjudication. (Docs. # 8 and 12).

         II. DISCUSSION

         A. Standard of Review

         Judicial review of the Commissioner's decision is restricted to determining whether it is supported by substantial evidence and was made pursuant to proper legal standards. See Colvin v. Barnhart, 475 F.3d 727, 729 (6th Cir. 2007). “Substantial evidence” is defined as “more than a scintilla of evidence but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Cutlip v. Sec'y of Health & Human Servs., 25 F.3d 284, 286 (6th Cir. 1994). Courts are not to conduct a de novo review, resolve conflicts in the evidence, or make credibility determinations. Id. Rather, the Court must affirm the Commissioner's decision, as long as it is supported by substantial evidence, even if the Court might have decided the case differently. Her v. Comm'r of Soc. Sec., 203 F.3d 388, 389-90 (6th Cir. 1999). If supported by substantial evidence, the Commissioner's findings must be affirmed, even if there is evidence favoring the plaintiff's side. Listenbee v. Sec'y of Health & Human Servs., 846 F.2d 345, 349 (6th Cir. 1988). Similarly, an administrative decision is not subject to reversal merely because substantial evidence would have supported the opposite conclusion. Smith v. Chater, 99 F.3d 780, 781-82 (6th Cir. 1996).

         When a claimant files an application for benefits under the same title of the Social Security Act as a previously-determined application, the principal of res judicata places limits on the evidence that an ALJ evaluating the second application can review. The Sixth Circuit has established that “the principles of res judicata can be applied against the [SSA] Commissioner.” Drummond v. Comm'r of Soc. Sec., 126 F.3d 837, 842 (6th Cir. 1997). “When 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, 600 (6th Cir. 1990) (per curiam) (holding that a second ALJ was precluded from reconsidering whether a plaintiff could perform his past relevant work).

         In light of the holding in Drummond, the Commissioner issued an Acquiescence Ruling directing states within the Sixth Circuit to follow Drummond by applying res judicata to a prior assessment of a claimant's residual functional capacity as well as other findings required in the sequential evaluation process for determining disability. This Ruling explained:

When adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the [Social Security] 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.

SSAR 98-4(6), 63 Fed. Reg. 29771-01 (Jun. 1, 1998). Accordingly, a prior ALJ's RFC determination must not be altered unless new and material evidence is presented showing that the plaintiff's condition has significantly changed. See Drummond, 126 F.3d at 842. The plaintiff bears the burden of showing that his condition has worsened to the point that he is no longer able to perform substantial gainful activity. Priest v. Soc. Sec. Admin., 3 Fed.Appx. 275, 276 (6th Cir. 2001) (citing Casey v. Sec'y of Health and Human Servs., 987 F.2d 1230, 1232-33 (6th Cir. 1993)).

         B. The ALJ's Determination

         To determine disability, the ALJ conducts a five-step analysis. Step One considers whether the claimant has engaged in substantial gainful activity; Step Two, whether any of the claimant's impairments, alone or in combination, are “severe;” Step Three, whether the impairments meet or equal a listing in the Listing of Impairments; Step Four, whether the claimant can still perform his past relevant work; and Step Five, whether a significant number of other jobs exist in the national economy that the claimant can perform. Walters v. Comm'r of Soc. Sec., 127 F.3d 525, 529 (6th Cir. 1997) (citing 20 C.F.R. § 404.1520). The burden of proof rests with the claimant on Steps One through Four. Jones v. Comm'r of Soc. Sec., 336 F.3d 469, 474 (6th Cir. 2003). As to the last step, the burden of proof shifts to the Commissioner to identify “jobs in the economy that accommodate [the claimant's] residual functional capacity.” Id. The ALJ's determination becomes the final decision of the Commissioner if the Appeals Council denies review, as it did here. See Thacker v. Berryhill, No. 16-CV-114, 2017 WL 653546, at *1 (E.D. Ky. Feb. 16, 2017); (Tr. 1-3).

         Before ALJ Mangus could consider Plaintiff's case, she was first required to consider Plaintiff's previous application for DIB, which had resulted in an unfavorable decision dated August 23, 2012. (Tr. 36). Based on Social Security Regulations and the doctrine of res judicata, the ALJ determined that the previous unfavorable decision was final and binding, but that Lingar's at-issue application presented new material evidence which “indicate[] additional impairments causing some additional limitation in the claimant's residual functional capacity.” (Tr. 36-37). As a result, and as required by Sixth Circuit precedent, ALJ Mangus considered this new evidence in determining whether changes to the prior ALJ's findings and conclusions were necessary. See Drummond, 126 F.3d at 842.

         Here, at Step One, ALJ Mangus found that Plaintiff had not engaged in substantial gainful activity from the alleged onset date of the disability, August 24, 2012, through his date last insured, September 30, 2015. (Tr. 39). At Step Two, the ALJ determined that, through the date last insured, the Plaintiff had the following severe impairments: history of left ankle fracture, lumbar spina degenerative disc disease with radiculopathy, third grade literacy level, fibromyalgia, cervical spine degenerative disc disease, bilateral shoulder bursitis, mild bilateral carpal tunnel syndrome, decreased vision, obesity, depression, and anxiety. (Tr. 39-42). At Step 3, the ALJ concluded that Plaintiff did not have ...


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