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Abbott v. Comm’r of Soc. Sec., Case No. 19-5670, 2020 U.S. App. LEXIS 1629 (6th Cir. Jan. 16, 2020), Atty Alvin D. Wax, Louisville, KY

Plaintiff appealed the ALJ’s denial of his claims for disability insurance benefits and supplemental security income. On appeal, Plaintiff argued that the ALJ erred in failing to consider a June 206 EMG/nerve conduction study; the Commissioner acknowledged that the ALJ stated at the hearing that he would consider the EMG study (which was submitted late), but argued the ALJ was not required to address each specific medical record in his decision.

The Court found the ALJ did not address the EMG/NCS or Plaintiff’s testimony regarding his right arm paresthesia, nor the extent to which this evidence was inconsistent with his finding that Plaintiff could frequently handle and finger bilaterally and lift at the light exertion level. Id. at *5-6. The Court agreed with Plaintiff’s argument that the ALJ did not adequately account for the EMG/NCS and his testimony regarding nerve damage in his arm, nor did the ALJ explain why this evidence should be discredited. Id. at *8. However, the Court found the ALJ’s assessment of his back impairment was supported by substantial evidence, and so the Court only vacated and remanded “to the district court with directions that it be returned to the Commissioner for further proceedings to reconsider the effect of the June 23, 2016 EMG and nerve-conduction test and any other evidence regarding [Plaintiff’s] right-arm impairment and his RFC determination.” Id. at *9.

Jones v. Comm’r of Soc. Sec., Case No. 19-2180, 2020 U.S. App. LEXIS 17767 (6th Cir. June 3, 2020), Attys Clifford Michael Farrell, Columbus, OH and Adriana De La Torre, Indianapolis, IN

Plaintiff applied for disability insurance benefits based on degenerative disc disease in the back and neck; the ALJ denied his claim, finding that he was limited to sedentary work with postural limitations, but that he could still perform his past relevant work as a security guard, as he testified that he sat most of the day. He appealed the ALJ’s step 4 denial, arguing the ALJ erred in failing to consider his use of a cane, and improperly classifying his past relevant work as sedentary work as performed.

Regarding Plaintiff’s need for a cane, the Court discussed the requirements of Listing 1.04(C), in which the impairment results in “inability to ambulate effectively.” Id. at *9. The Court found Forrest v. Comm’r of Soc. Sec., 591 F. App’x 359, 366 (6th Cir. 2014) to be directly on point – “even if the ALJ failed to sufficiently set out an explanation of her decision at Step Three, where the Listing required an ‘inability to ambulate’ and the claimant ‘used one cane at most’, any error was harmless because the claimant could not show that his impairment met or medically equaled the listing.” Id. at *10. The Court stated: “[e]ven assuming a cane was medically necessary for [Plaintiff] to ambulate, it is insufficient to demonstrate an inability to ambulate. As Forrest recognized, a cane cannot demonstrate an inability to ambulate because a claimant must need ‘hand-held assistive device(s)’ in both hands to satisfy the definition. 20 C.F.R. § 1.00(B)(2)(b)(1); Forrest, 591 F. App’x at 366.” Id. Further, the Court stated “there was plenty of evidence to support the conclusion that [he] was able to ambulate”, as multiple doctors found that his gait was not significantly affected by his lower back injury. Id.

Second, the Court found that Plaintiff did not produce medical documentation establishing the need for a cane. His best evidence was a physical therapist’s notation that he was using a cane, however she did not determine that a cane was medically necessary or suggest that he use one to meet his treatment goals; “a single notation of ‘cane’ cannot possibly provide ‘the circumstances for which [the assistive device] is needed.’ SSR 96-9p.” Id. at *12. The Court also found “[m]edical records revealing that multiple physicians, over a period of two years, found that [Plaintiff] had a normal gait, provide substantial evidence to support this credibility determination.” Id. at *14.

Turning to Plaintiff’s second argument regarding his past relevant work, the Court found that the hearing transcript made clear that the ALJ considered Plaintiff’s work as a security guard at Benton Harbor Area Schools separate from his work as a security guard at Armor Knight Security, and the ALJ only found that Plaintiff could return to the latter job, which the VE classified as sedentary work. Id. at *16-17. The Court found that Plaintiff worked this job for 6 months, and in January 2014 he earned $1168, which was almost $100 above the SGA level for 2014, and therefore it qualified as SGA. Id. at *17-18. As a result, the Court affirmed the district court judgment.

O’Neal v. Comm’r of Soc. Sec., 799 Fed. Appx. 313 (6th Cir. Jan. 7, 2020), Atty Robert Brown June, Ann Arbor, MI

Plaintiff filed for disability insurance benefits based on rheumatoid arthritis; based on this and other physical impairments, the ALJ limited him to sedentary work with several limitations, and denied benefits at step 5. Plaintiff appealed, and the magistrate judge agreed with Plaintiff’s arguments that the ALJ failed to consider the reliability of the VE’s testimony that jobs in the surveillance-system monitor category exist in significant numbers in the national economy. However, the Commissioner filed objections, and the district court rejected the magistrate judge’s recommendations, and found the ALJ properly relied on the VE’s testimony. Notably, the district court explained that Plaintiff’s counsel never cross-examined the VE about the surveillance-system monitor job, and so the ALJ had no reason to probe “the availability or accessibility of such positions” as suggested in the magistrate judge’s report and recommendation. Id. at 315.
Before the Court, Plaintiff argued the VE’s testimony was unreliable because “it is unlikely that surveillance-system monitor jobs described in the DOT listing currently exist in significant numbers in the national economy. He contends that the DOT listing is obsolete and that ‘the mere identification of this job is insufficient to satisfy the Commissioner’s burden of proof at step five.’” Id. at 316. Plaintiff primarily relied on the Court’s unpublished decision Cunningham v. Astrue, 360 F. App’x 606 (6th Cir. 2010), in which a split panel noted that the DOT was more than a decade old at the time of the ALJ’s hearing, and that the document preparer and surveillance-system monitor jobs descriptions were “potentially vulnerable” as “obsolete” and that “common sense dictates that when such [DOT] descriptions appear obsolete, a more recent source of information should be consulted.” Cunningham, 360 F. App’x at 615. The panel in Cunningham also noted that at the time of the ALJ hearing, the DOL had adopted O*NET, which did not include the document preparer and surveillance-system monitor descriptions relied on by the VE, and so the panel concluded “the [VE’s] dependence on the DOT listings alone does not warrant a presumption of reliability.” Cunningham, 360 F. App’x at 615. The Court then noted that some lower courts have followed Cunningham, while others have not. Id. at 316-17. The Court stated:

Recognizing the apparent confusion among some of the lower courts about whether the DOT continues to be a reliable source of information at step five, we clarify that the DOT data can establish the existence of jobs in the national economy in significant numbers. Although the court remanded to the ALJ in Cunningham for further consideration at step five, the panel did not conclude categorically that the DOT was an obsolete and unreliable source of job information. The current regulation governing this inquiry lists the DOT as a source of ‘reliable job information.’ 20 C.F.R. § 404.1566(d)(1). The regulation does not list O*NET as a reliable source. And, in fact, in 2010, the SSA determined that O*NET in its current form was not suitable for disability claims adjudication. See Occupational Infor. Dev. Advisory Panel, Findings Report: A Review of the National Academy of Sciences Report, Report to the Comm’r of Soc. Sec. 1, 8 (June 28, 2010), https://www.ssa.gov/oidap/Documents/COMPLETE%20FINAL–Findings%20Report%20OIDAP%20062810.pdf.

What is more, in Kyle [v. Comm’r of Soc. Sec., 609 F.3d 847, 854 (6th Cir. 2010)], published after Cunningham, we reiterated that the ALJ can rely on the DOT to establish that work exists in the national economy. 609 F.3d at 855. We follow Kyle here. And we note that no binding post-Cunningham decision from this court has remanded to the Commissioner based on a [VE’s] reliance on the DOT.

Kyle also noted that the ALJ can rely on [VE] testimony. Id. All that is required before an ALJ can rely on vocational evidence provided by a [VE} is that the ALJ either ensure that the evidence does not conflict with the information in the DOT or obtain a reasonable explanation for any conflict. See Lindsley [v. Comm’r of Soc. Sec., 560 F.3d 601, 603 (6th Cir. 2009)] (citing SSR 00-4p); see also Gallo v. Comm’r of Soc. Sec. Admin., 449 F. App’x 648, 650 (9th Cir. 2011) (“[Vocational expert] testimony may become unreliable on account of a conflict with the DOT, but not on account of its compliance with the DOT.” (citation omitted)).

Id. at 317-18. The Court found the ALJ satisfied this requirement by asking the VE if her testimony was consistent with the DOT; the Court rejected Plaintiff’s argument that the ALJ was under a duty to “conduct an independent investigation” into the VE’s testimony to determine if it is correct. Id. at 318. The Court noted that Plaintiff’s counsel did not cross-examine the VE during the hearing, which, for example, could have shown that the surveillance-system monitor job requires more than it did when the DOT was created. Id. Thus, the Court concluded the VE testimony constituted substantial evidence supporting the ALJ’s step 5 finding. Affirmed.

Lipanye v. Comm’r of Soc. Sec., 802 Fed. Appx. 165 (6th Cir. Jan. 29, 2020), Atty Lester Sanford Potash, Beachwood, OH

Plaintiff filed his claim for disability insurance benefits at age 60; he had always lived with his parents, and alleged disability based on OCD and early-stage cataracts. He previously worked as an accounting clerk at his family’s business, and as a machine operator. On appeal, he argued that the ALJ erred in failing to consider that both of his jobs were performed with significant accommodation from his family. Id. at 170. However, the Court stated the ALJ found that Plaintiff could not perform either of these jobs, and once this finding was made, “whether that past work was ‘supported employment’ under the regulations became immaterial.” Id. at 171.

Thaxton v. Comm’r of Soc. Sec., Case No. 19-6295, 2020 U.S. App. LEXIS 18385 (6th Cir. June 9, 2020), Atty Steven D. Wilson, Owensboro, KY

Plaintiff previously worked as a towboat captain; after the Coast Guard found him to be medically unfit due to his alcohol dependence requiring the use of medications and continued use of alcohol with the need for medical detox and rehabilitation, he filed for disability benefits. He treated with a psychiatrist and a therapist for his PTSD, bipolar, anxiety, and agoraphobia. Id. at *4-6. He appealed the ALJ’s step 5 denial, arguing the ALJ erred in rejecting the opinions of his treating sources. The Court found the ALJ provided “good reasons” for the weight assigned to his treating psychiatrist, “and those reasons weren’t even implicit – they were specific, detailed, and backed by substantial evidence. Those reasons meet the goal of § 404.1527: to inform [Plaintiff] of the reasons for the denial of his application and to provide sufficient evidence for a meaningful review. Any remand would be fruitless.” Id. at *15. The Court stated the ALJ summarized in great detail every consultation that Plaintiff had, and then provided specific reasons for why the treating psychiatrist’s opinion was “not only unsupported by the record as a while but also not even supported by [his] own medical records.” Id. at *16. The Court rejected Plaintiff’s argument of cherry-picking, finding the ALJ “neither misstated nor mischaracterized the record.” Id. at *17. Finally, in distinguishing this case from cases where remand was warranted, the Court explained: “[w]e have said there must be ‘some effort to identify the specific discrepancies and to explain why it is the treating physician’s conclusion that gets the short end of the stick. [Karger v. Comm’r of Soc. Sec., 414 F. App’x 739, 753 (6th Cir. 2011)]. Here, the ALJ’s effort is recognized in the pages of detailed explanations of the discrepancies between some opinions and others, and in particular, the discrepancy between [the treating psychiatrist’s] conclusion regarding [Plaintiff’s] ability to work and the record as a whole.” Id. at *18-19. Affirmed.

Rottmann v. Comm’r of Soc. Sec., Case No. 19-2205, 2020 U.S. App. LEXIS 19267 (6th Cir. June 19, 2020), Atty Lewis M. Seward, Bay City, MI

Plaintiff appealed the ALJ’s denial of her disability claim, arguing the ALJ erred in evaluating the treating opinion evidence. The Court rejected Plaintiff’s argument. In response to her argument that the ALJ failed to adequately consider the six factors of § 404.1527(c), the Court stated:

‘The ALJ need not perform an exhaustive, step-by-step analysis of each factor; [he] need only provide ‘good reasons’ for both his decision not to afford the physician’s opinion controlling weight and for [his] ultimate weighing of the opinion.’ Biestak v. Comm’r of Soc. Sec., 880 F.3d 778, 785 (6th Cir. 2017) (citations omitted). While the ALJ did not reference each factor, he did discuss the factor most important to this case, i.e., the consistency (or lack thereof) of the doctors’ opinions with the record as a whole. As noted, [Plaintiff’s] self-reported activities (and other parts of the record) were markedly inconsistent with the doctors’ opinions.’
Id. *7. The Court found the ALJ sufficiently explained the weight he assigned to the treating physicians’ opinions. The ALJ also relied on Plaintiff’s activities, which included riding a motorcycle, mowing her lawn and participating in war reenactments. The Court rejected Plaintiff’s argument that her “accommodations” (riding a motorcycle without a clutch and mowing her lawn with a zero-radius-turn mower) demonstrated that the ALJ mischaracterized her activities or that her participation in said activities required less ability than one would normally expect. Id. at *7-8. Affirmed.

Hicks v. Comm’r Soc. Sec. Admin., 909 F.3d 786 (6th Cir. 2018)

The Social Security Administration discontinued Plaintiff’s social security disability benefits after later finding that the lawyer who represented them, Eric Conn, filed fraudulent documents. On a consolidated appeal from three district courts, though the precise nature of their claims differed, Plaintiffs appealed the discontinuance of their social security benefits under 42 U.S.C. § 405(u)(1)(A)(the “Social Security Act”), the Due Process clause, and the APA’s formal adjudication requirement. In particular, Plaintiff’s challenged the fact that in their redetermination hearings the ALJ disregarded all the medical reports submitted by the physician’s suspected of fraud with Mr. Conn. This included beyond the suspected fraudulent RFC forms, evidence detailing their examinations of Plaintiffs, including any testing that they had performed and behavioral observations they had made.

The court held that Plaintiffs were entitled to summary judgment on their due-process claim, while the Agency was entitled to summary judgment on Plaintiff’s claim under the Social Security Act, and the Agency was not entitled to summary judgment under the APA.

The court’s threshold question was whether the three-factor balancing test laid out in Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), governed the due-process claim. Plaintiff argued their case was about “the minimum protections of due process,” and Mathews—which Plaintiffs understood as a test “used to determine whether additional process (i.e., beyond the minimum) is required”—does not apply.” Plaintiffs emphasized “that “procedural due process” requires, at a minimum, “a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker,” and this baseline procedural protection may not be “balanced away.”” The government countered that the “court [has] long applied Mathews to assess whether the government has provided “the core due process protection of a meaningful hearing”” The court held that “the SSA’s procedures violate long-standing principles of procedural due process that predate the Mathews test. Even under Mathews, however, plaintiffs would prevail.”

The court noted that before Matthews the Supreme Court recognized the “immutable” principle that “where governmental action seriously injures an individual, and the reasonableness of the action depends on fact findings, the evidence used to prove the Government’s case must be disclosed to the individual so that he has an opportunity to show that it is untrue.” Greene v. McElroy, 360 U.S. 474, 496, 79 S. Ct. 1400, 3 L. Ed. 2d 1377 (1959). While the government argued that “the deprivation of plaintiffs’ benefits in this case did not “depend on” the government’s finding that the reports by Conn’s doctors involved fraud, because it turned instead on the government’s finding that the other evidence in the plaintiffs’ records was insufficient to establish disability”, the court disagreed. The court explained that “[a]n agency’s determination, however, “depends on fact findings” beyond the ultimate factual question at issue, and due process protects a person’s right to contest not only the final finding, but also the relevant preliminary findings. See Wisconsin v. Constantineau, 400 U.S. 433, 437, 91 S. Ct. 507, 27 L. Ed. 2d 515 (1971)” In this case, the court found that the exclusion of all the documents “ is inextricably bound up with the denial of plaintiffs’ benefits because, according to plaintiffs, they are now unable to provide sufficient substitute evidence of their initial eligibility for benefits. Perhaps plaintiffs would not have received a favorable outcome if their initial medical records were considered in the redetermination process, after all, the ALJ deciding the initial review was hardly neutral—but inclusion of these reports nevertheless constitutes plaintiffs’ only hope of restoring their benefits.” The court remarked, “[i]f the latter fact more-or-less decides the former, then due process requires that both remain up for debate.”

The court also held that Plaintiff prevails under the Matthews test. The court noted Matthews “directs courts to weigh the private interest in a property right against the government’s interest in avoiding additional or substitute process, in light of “the risk of an erroneous deprivation” of a property holder’s interest “and the probable value, if any, of additional or substitute procedural safeguards.” Mathews, 424 U.S. at 335.” The court explained that, first, “courts must consider when, in Mathews’s parlance, the “risk of an erroneous deprivation” is too high. At some foundational level, this factor is dispositive. After all, “some form of hearing is required before an individual is finally deprived of a property interest” no matter how small the interest or how great the governmental burden. Next, after establishing the base level of process owed, courts must weigh the remaining factors to determine how much more ought to be provided. Where the liberty or property interest is significant and the cost to the government of providing additional, valuable process is low, then greater procedures must be implemented. Where the liberty or property interest is relatively low, the value of additional procedures is minimal, and the cost to the government is high, then nothing more is necessary.”

Applying Matthews to Plaintiffs cases, the court held “the risk of an erroneous deprivation under the SSA’s current framework is too high.” The court noted “Supreme Court precedent, including precedent applying Mathews, indicates that any time a citizen is deprived of “notice of the factual basis” for a governmental determination and “a fair opportunity to rebut the Government’s factual assertions before a neutral decisionmaker,” the risk of error is too high. Hamdi v. Rumsfeld, 542 U.S. 507, 533 124 S. Ct. 2633 (2004).” The court observed, “even if the risk of an erroneous deprivation were not intolerably high whenever claimants are precluded from rebutting material factual assertions about their case, the risk of an erroneous deprivation is nevertheless too high in these cases.” The court pointed out that the investigation had revealed suspected fraud in only a small portion of the evidence-the RFC forms- yet the Agency excluded any evidence from these sources. The court concluded this made the Office of Inspector General investigation’s “assertions of fraud unreviewable, but the SSA’s application of those assertions is unreviewable….[i]n effect, the SSA insists that it may unilaterally select the criteria for fraud (based on vague statutory guidance) and then unilaterally select which evidence satisfies those criteria. With no adversarial input and no judicial oversight, the risk that nonfraudulent material will be erroneously excluded is impermissibly high.”

The court found applying the other two factors of Matthews also favored the Plaintiffs. The hardship upon Plaintiffs was great and the government’s interest in avoiding additional procedures “boils down to arguments about cost and administrative burden.” These arguments were unpersuasive in light of the long delay after first learning about possible misconduct. The court held reversed on the bais that refusing to allow Plaintiffs to rebut the assertions of fraud as to their individual applications violates the Due Process Clause of the Fifth Amendment.

The second issue was whether the Agency violated the Administrative Procedures Act. Plaintiff argued that: (1) the redetermination hearings did not comply with the APA’s requirements for formal adjudications; and (2) that the Agency’s violated the prohibition against “arbitrary” or “capricious” decision making by adopting different procedures for claimants whose initial-benefits determinations were suspected of fraud by the SSA as opposed to those suspected of fraud by the Office of Investigator General. First, the court held that “the APA provides that “[w]hen an agency decision rests on official notice of a material fact not appearing in the evidence in the record, a party is entitled, on timely request, to an opportunity to show the contrary.” Here, “plaintiffs have provided evidence demonstrating that the ALJs assigned to plaintiffs’ redetermination hearings essentially rejected the only remaining medical opinions that could have established plaintiffs’ claims based on the OIG’s off-the-record determination that the records involved fraud—determinations plaintiffs had no opportunity to rebut or contest.” Therefore, the agency’s redetermination process violated the APA’s formal-adjudication requirements.

Second, the court held that the Agency violated the prohibition on “arbitrary” or “capricious” decision making “by adopting different procedures for claimants whose initial-benefits determinations are suspected of fraud by the SSA as opposed to those suspected of fraud by the OIG.” At issue was the Agency’s policy that directs ALJs conducting redetermination hearings to adopt different procedures depending on which source triggered the redetermination. When the SSA alone suspects that a claimant’s determination was tainted by fraud, “an adjudicator can consider a beneficiary’s or recipient’s objection to the disregarding of certain evidence.” HALLEX I-1-3-25(C)(4)(a). If, by contrast, the redetermination is “based on an OIG referral of information or a referral based on information obtained during a criminal or other law enforcement investigation,” then “adjudicators do not have discretion to reconsider the issue of whether the identified evidence should be disregarded.” Id. Plaintiffs argued that granting additional procedures to a subset of claimants based on which agency first suspects fraud is arbitrary and capricious, particularly where, as here, the SSA may actually suspect fraud first but transfer the investigation to the OIG rather than handling the matter itself. The court agreed finding that the “SSA has not provided any citations to suggest agencies can distinguish between similarly situated claimants based on circumstances entirely outside their control, and there is good reason to believe such action violates the APA… plaintiffs are not accused of willingly participating in Conn’s scheme, such that they could perhaps be deemed responsible for the procedural consequences of triggering an OIG investigation. Instead, they had the misfortune of hiring an attorney whose misconduct was widespread enough to warrant an OIG, as opposed to an SSA, investigation. Procedurally penalizing plaintiffs on this basis is arbitrary and capricious.” The court reversed and remanded on this basis that the Agency violated the APA.

Finally, the court addressed Plaintiff’s contention that a hearing on the alleged fraud should be required as a matter of the Act and common-law principles. The question was whether the language of the Act leaves room for the Agency to provide hearings as part of the redetermination process regarding the fraud allegations. Specifically, Plaintiff argued: (1) a hearing on the alleged fraud should be required as a matter of statutory interpretation under the Social Security Act procedures governing reopening and common-law and statutory principles of res judicata; and (2) that the SSA violated the Act through delay upon first having “reason to believe” of potential fraud and by failing “immediately” to redetermine plaintiffs’ entitlement to benefits, as required under 42 U.S.C. § 405(u). The court disagreed. First, the court noted that Plaintiffs “cannot establish that the procedures governing reopening also govern redeterminations.” The court observed 42 U.S.C. § 405(u) “directs SSA to “redetermine” entitlement to benefits whenever “there is reason to believe that fraud . . . was involved in the application” for benefits. On its face, then, § 405(u) requires the SSA to redetermine benefits based on something less than proof of fraud. Further, the Agency issued a ruling (SSR 16-1p) addressing this point and an Agency is entitled to deference in interpreting its own statutes. As an interpretation of the reopening regulations, the Social Security Ruling is entitled to Auer deference. Wilson v. Comm’r of Soc. Sec., 378 F.3d 541, 549 (6th Cir. 2004) (holding that a Social Security Ruling, as “an agency’s interpretation of its own regulation[,] is entitled to substantial deference and will be upheld unless plainly erroneous or inconsistent with the regulation”) (citing Auer v. Robbins, 519 U.S. 452, 461, 117 S. Ct. 905, 137 L. Ed. 2d 79 (1997)). As to Plaintiff’s argument that the Agency violated the Act by failing to undertake the redeterminations “immediately”, the court found that while Plaintiffs were likely harmed by the Agency’s delay in investigating and not immediately redetermining benefits “the Supreme Court has also cautioned courts to consider “the general purpose” of statutes before imposing sanctions that “would undermine the very governmental interests that [the statute] is meant to protect.” State Farm Fire & Cas. Co. v. United States ex rel. Rigsby, 137 S. Ct. 436 (2016) (citation omitted). As plaintiffs detail extensively in their briefs, “the general purpose” of § 405(u) was to enable the SSA to end fraudulent determinations more quickly than the reopening procedures at that time allowed. It thus seems counterintuitive to hold that a failure to reverse fraudulent determinations quickly enough precludes the government from reversing those determinations at all.” The Court found no violation of the Social Security Act and affirmed the district courts’ judgments as to those issues.

Earley v. Comm’r Soc. Sec. Admin., 893 F.3d 929 (6th Cir. 2018)

In 2010, Plaintiff applied for disability benefits. In 2012, an ALJ rejected the application on the ground that she did not have a covered disability. She applied again for a new period of time. The ALJ again denied Plaintiff’s renewed application after finding that Drummond v. Comm’r Soc. Sec., 126 F.3d 837 (6th Cir. 1997), required him to give preclusive effect to his prior work-capacity finding. The district court reversed, concluding that Drummond’s “principles of res judicata” apply only when they favor an individual applicant and did not apply to the government.

The Agency appealed the district court’s decision arguing that Drummond applied equally to the government. The court agreed holding that that Drummond’s res judicata principles apply to individuals and the government. In its opinion, the court noted if “an individual, say, files a second application for the same period of time finally rejected by the first application and offers no cognizable explanation for revisiting the first decision, res judicata would bar the second application. And res judicata would apply in both directions: to bar the government and individuals from relitigating a past final decision for no reason other than to take a second bite at the same apple.” However, this does not prevent the agency from “giving a fresh look to a new application containing new evidence or satisfying a new regulatory threshold . . . .”

In Plaintiff’s case, “ res judicata does not apply.” Plaintiff filed “a new application for a new period of time. When an individual seeks disability benefits for a distinct period of time, each application is entitled to review.” The court observed that “human health is rarely static. Sure as we’re born, we age. Sometimes we become sick and sometimes we become better as time passes. Any earlier proceeding that found or rejected the onset of a disability could rarely, if ever, have “actually litigated and resolved” whether a person was disabled at some later date.” Here, the ALJ erred because “[i]nstead of asking whether the evidence supported [Plaintiff’s] new application, [the ALJ] thought he was precluded by the first ruling. In his view, he was “bound by the findings of [the] previous Administrative Law Judge” because Sixth Circuit case law gave those findings “preclusive effect.”” This was error holding “[a]n individual may file a second application—for a new period of time—for all manner of reasons and obtain independent review of it so long as the claimant presents evidence of a change in condition or satisfies a new regulatory threshold.”

The court also noted that “Drummond involved a black swan—the unusual situation in which the individual wanted the administrative law judge to make the same finding on one issue that he had made in a prior ruling.” However, the court observed that in most cases claimants “want the next administrative law judge to examine the new record and make a new, more favorable finding.” The court concluded that the substantial evidence standard of review applies to second application based on a new period of time (§ 405(g)). The court reversed the district court and remanded with instructions to send the case to the Administration to reconsider Plaintiff’s application for benefits.

Nettleman v. Comm’r Soc. Sec. Admin., 728 F. App’x 473 (6th Cir. Mar. 27, 2018)

Plaintiff suffers from acute chronic obstructive pulmonary disease (COPD), acute respiratory failure, diabetes, obesity, carpal tunnel syndrome, and an anxiety disorder. She smoked for 24 years, stopping at age 40, in January 2014, after she suffered an acute pulmonary crisis requiring hospitalization for acute exacerbation of COPD with acute respiratory failure. She lost her job because of her respiratory limitations at work. She applied for disability insurance benefits and supplemental security income. After an ALJ denied her claims Plaintiff appealed to district court which affirmed the ALJ’s decision.
Plaintiff appealed arguing that the ALJ erred in consideration of Listing § 3.02(A). To qualify for disability caused by a chronic respiratory disorder, the results of an individual’s spirometry tests must meet the criteria set out in a table in § 3.02(A). The regulations require “at least three satisfactory forced expiratory maneuvers” during testing. The listings standard for FEV1 numbers is related to an individual’s height without shoes. Plaintiff’s height without shoes was 61 inches so her FEV1 result must be equal to or less than 1.15 liters to qualify for disability. Specifically, Plaintiff argued that a December 2014 result of .92 liters fell below the 1.15-liter requirement despite 5 other results exceeding the limit. Furthermore, Plaintiff argued her other FEV1 numbers are “close enough.” She pointed to the fact that she has to use an oxygen tank 24 hours a day and argued that there is an “intuitive connection” between being “stuck on oxygen” and a respiratory listing. The court disagreed noting that only one test result from April 2014 which exceeded the 1.15-liter requirement had the documented three forced expiratory maneuvers. Further it held that “the Act and its regulations nowhere support the idea that disability benefits are automatically awarded if an individual uses supplemental oxygen, even continuously. Claimants must still provide medical evidence to establish the severity of their medical disorder.” The court concluded Plaintiff had failed to do so. The court affirmed the district court’s judgment.

In a dissent, Circuit Judge Clay noted that the FEV1 result from December 2014 was 0.92L, which is well below 1.15L. Judge Clay observed the ALJ had failed to discuss this at all and the majority rejected the evidence out of hand. Judge Clay stated the “the majority speculates that the doctor or nurse who performed Plaintiff’s examination was unfamiliar with basic medical practices.” In contrast, he found “it more likely that the majority misunderstands the pertinent medical practices than that the doctor or nurse acted deficiently.” Observing that the majority’s determination required a conclusion that “the [December 2014] examination did not have “the requisite three forced expiratory readings.” This conclusion “requires the majority to assume that the doctor or nurse who performed the examination at a clinic called “The Lung Center” was unfamiliar with standard practices for a basic lung examination. It also requires the majority to assume that “The Lung Center” did not have modern equipment that would automatically prompt the user to perform at least three maneuvers. Rather than making these extreme assumptions to affirm the ALJ’s ruling on a basis that the ALJ himself did not even suggest, I would remand the case for further evaluation by the ALJ.”

Smith v. Comm’r Soc. Sec. Admin., 880 F.3d 813 (6th Cir. 2018), cert. granted Smith v. Berryhill, 139 S. Ct. 451 (Nov. 2, 2018)

Plaintiff had received Supplemental Security Income from 1988 to 2004 when he was found to be over the resource limit. He subsequently filed another application for supplemental security income on August 7, 2012, alleging additional medical conditions as a result of his original disability. Plaintiff was denied by an ALJ decision on March 26, 2014. The decision was signed by a different ALJ than the one who had held the hearing but he noted it was on that ALJ’s behalf. Pursuant to the governing regulations, Plaintiff had sixty days to appeal the decision to the Appeals Council. He claimed that he mailed a written request for review to the Appeals Council on April 24, 2014. On September 21, 2014, Plaintiff faxed a correspondence to the Society Security Administration, inquiring as to the status of his appeal, and attaching a copy of his written request, which was dated April 24, 2014. He was informed in a letter dated October 1, 2014, that his request had not been placed in the “electronic folder,” and that if the Appeals Council had received the request, it would have mailed a receipt. The representative mailed a completed request for review form to the Appeals Council along with Plaintiff’s written request for review. The representative informed Plaintiff that his appeals request was filed as of that day, October 1, 2014. On November 6, 2015, the Appeals Council dismissed the request for review as untimely, having found no good cause to extend the time for filing because Plaintiff’s attorney could not provide evidence indicating that it was sent within the appropriate time.

The district court had held that it lacked subject matter jurisdiction as Plaintiff’s request for appeal as untimely did not constitute a final decision and he made no colorable constitutional claims. On appeal, as a threshold matter, the circuit court determined that the Appeals Council’s determination that Plaintiff’s request for appeal was untimely did not constitute a final decision and thus was not subject to judicial review under 42 U.S.C. § 405(g). The court held that if the Appeals Council dismisses the request for review as untimely, the dismissal is binding and not subject to further review. The court noted in “Califano v. Sanders, 430 U.S. 99, 108, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977), the Supreme Court held that judicial review of a denial of a petition to reopen a prior final decision is unavailable in the absence of a colorable constitutional claim. The Court reasoned that, “an interpretation that would allow a claimant judicial review simply by filing and being denied a petition to reopen his claim would frustrate the congressional purpose, plainly evidenced in [§] 205(g), to impose a 60-day limitation upon judicial review of the Secretary’s final decision on the initial claim for benefits.” It further noted, in an analogous case, the Sixth Circuit had held in Hilmes v. Secretary of Health & Human Services, 983 F.2d 67, 68 (6th Cir. 1993), the claimant had sixty days to request a hearing before an ALJ after receiving a notice of award from the Social Security Administration. The claimant sought an extension of the request deadline, but then failed to request a hearing until after the extension had expired. Id. The ALJ subsequently dismissed the request for a hearing as untimely, and the Appeals Council declined to review the matter, although it noted that there had been no good cause for missing the extended deadline. Id. In affirming the district court’s dismissal of the plaintiff’s petition, we followed the Sanders rationale and held that the dismissal of a hearing request as untimely was unreviewable.” The court noted among Circuits who had decided this issue the majority reached the same conclusion. See, e.g. , Brandtner v. Dep’t of Health & Human Servs. , 150 F.3d 1306, 1307 (10th Cir. 1998) ; Bacon v. Sullivan , 969 F.2d 1517, 1520 (3d Cir. 1992) ; Matlock v. Sullivan, 908 F.2d 492, 494 (9th Cir. 1990) (“[P]ermitting claimants to obtain judicial review of denials of their requests for extensions of time would frustrate Congress’ intent to forestall belated litigation of stale claims.”); Harper ex rel. Harper v. Bowen, 813 F.2d 737, 743 (5th Cir. 1987) (holding that the Appeals Council’s refusal to grant an extension and consider an untimely request for review is not, under Sanders and the Secretary’s requirements for exhaustion, a “final decision”); Adams v. Heckler, 799 F.2d 131, 133 (4th Cir. 1986) ; Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983).

However, it acknowledged the Eleventh Circuit sees this issue differently. See Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

Recognizing that despite the court’s lack of jurisdiction, Plaintiff still can raise a constitutional challenge to an otherwise unappealable order, the court considered Plaintiff’s assertion that his due process rights were violated because: (1) the Appeals Council denied his request for review as untimely after he allegedly timely mailed the request, (2) a different ALJ signed the unfavorable decision than the ALJ that held his hearing, and (3) his 1988 decision was referenced by the ALJ but not attached to the decision as an exhibit.

The court rejected Plaintiff’s argument. First, it found there was no evidence that Plaintiff had submitted a timely written request for appeal. The court held “[a]bsent independent evidence, such as a postmark or dated receipt, this Court cannot reverse the Appeals Council’s determination that the written request for appeal was untimely.” Next, the court found that the relevant HALLEX provision, I-2-8-40, explains that when an ALJ conducts a hearing but becomes unavailable to sign the decision, the Hearing Office Chief ALJ may sign the decision on behalf of the presiding ALJ, if the presiding ALJ has approved the final draft decision. Here, the ALJ decision plainly stated that the ALJ was signing on behalf of the ALJ who had conducted the hearing. Finally, Plaintiff had not raised the issue of the ALJ’s failure to attach the decision from 1988 to his unfavorable decision in this case at district court and therefore had waived that issue on appeal. However, the court noted, even if it had reached that issue Plaintiff had not explained why it would amount to a due process violation. The court affirmed the district court’s judgment.

Collins v. Comm’r Soc. Sec. Admin., 742 F. App’x 94 (6th Cir. July 13, 2018)

In October 1995, the Commissioner determined that Plaintiff was disabled as of March 2, 1995. The Commissioner redetermined Collins’s disability the following year after Congress modified the Social Security Act to exclude from the definition of “disabled” those individuals for whom alcoholism or drug addiction was “a contributing factor material.” Under that standard, the Commissioner found that alcoholism was a contributing factor material to Plaintiff’s disability. Plaintiff appealed and was denied by an ALJ. Plaintiff subsequently reapplied for disability benefits. Plaintiff’s insured status expired on December 31, 2001, during the pendency of this application. In April 2002, and ALJ again denied his benefits claim. In 2014, Plaintiff again applied for disability benefits alleging that he had been disabled as of March 2, 1995. Plaintiff requested a hearing. Because his insured status expired at the end of 2001—a time period already considered by the prior ALJ and he presented no new evidence “concerning the facts and issues ruled upon in connection with the previously adjudicated period” the ALJ dismissed the request for a hearing based on res judicata. Plaintiff appealed to the district court. The Commissioner moved to dismiss the complaint for lack of subject-matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1). The Court granted the Commissioner’s motion.

Plaintiff appealed. The court affirmed dismissal for lack of subject matter jurisdiction; also holding that the Commissioner’s “dismissal of a benefits claim without a hearing on the basis of res judicata does not constitute a final decision within the meaning of § 405(g). Hilmes v. Secretary of HHS, 983 F.2d 67, 69-70 (6th Cir. 1993); see also Bowens v. Barnhart, 101 F. App’x 93, 94 (6th Cir. 2004) (order). But there is an exception to § 405(g). “Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions.” Califano v. Sanders, 430 U.S. 99, 109, 97 S. Ct. 980, 51 L. Ed. 2d 192 (1977).” However, Plaintiff had not raised a colorable constitutional claim. The court affirmed the district court’s judgment.

Grames v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 6497 (6th Cir. Mar. 1, 2019)

Plaintiff filed for disability based on alleged physical and mental impairments; in denying Plaintiff’s claim, the ALJ gave little weight to Plaintiff’s treating psychiatrist. The court found that the ALJ incorrectly stated the psychiatrist did not explain his opinion and that the ALJ “‘cherry-picked certain observations and medical findings while ignoring other serious symptoms that [the psychiatrist] and other practitioners noted throughout the relevant time period. An ALJ’s decision cannot be upheld where she ‘selectively considered the evidence in denying benefits.’” The court also noted that “[a] GAF score, although not determinative, ‘may assist an ALJ in assessing a claimant’s mental RFC’”, and that in this case, Plaintiff’s “GAF scores track her symptoms: they decreased when [Plaintiff’s] symptoms worsened, and they increased when her symptoms improved.” The ALJ’s focus on “improvement” right after a 3-day hospitalization ignored that context and further ignored her worsening after that date. As the ALJ failed to consider numerous § 404.1527 factors, the court found that remand was warranted.

The court also found that the ALJ erred in giving greatest weight to the Agency’s non-examining reviewer, particularly since his review occurred before her hospitalization and before her treating psychiatrist offered his opinion. The court further found that substantial evidence did not support the ALJ’s credibility assessment. For these reasons, the court vacated and remanded.

Brauninger v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 5556 (6th Cir. Feb. 25, 2019)

Plaintiff applied for disability insurance benefits and supplemental security income based on both physical and mental impairments; after the ALJ denied her claim, she filed an appeal to federal district court, which remanded for further review. On remand, the ALJ limited Plaintiff to a reduced range of sedentary work and denied benefits at step 5, which was affirmed by the district court. Plaintiff raised two issues on appeal: (1) the ALJ’s finding regarding Listing 1.04(a) is not supported by substantial evidence; and (2) the ALJ did not properly weigh the medical evidence. The court rejected both arguments.

First, Plaintiff argued that the ALJ ignored evidence supporting a finding of nerve root compression, but the court found that the evidence cited by Plaintiff was not ignored by the ALJ and did not satisfy Listing 1.04(A).

Second, Plaintiff argued that her treating physicians should have been accorded controlling weight regarding their opinions that she needs to lie down several times throughout the workday and she will likely be off task more than 20% of the workday due to pain. The court found that there was substantial evidence to support the ALJ’s finding that “there was no medically determinable basis” for the physicians’ opinions. Thus, the court affirmed the district court’s judgment.