United States District Court, W.D. Michigan, Southern Division
JAMES F. USITALO, on behalf of TONI R. USITALO, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant,
J. JONKER CHIEF UNITED STATES DISTRICT JUDGE
a social security action brought under 42 U.S.C. §
405(g) seeking judicial review of a final decision by the
Commissioner of the Social Security Administration
(Commissioner) denying Plaintiff's claim for disability
insurance benefits (DIB) under Title II of the Social
Security Act. Section 405(g) limits the Court to a review of
the administrative record, and provides that if the
Commissioner's decision is supported by substantial
evidence, it shall be conclusive. The Commissioner has found
that Plaintiff is not disabled within the meaning of the Act.
scope of judicial review in a social security case is limited
to determining whether the Commissioner applied the proper
legal standards in making her decision and whether there
exists in the record substantial evidence supporting that
decision. See Brainard v. Sec'y of Health & Human
Servs., 889 F.2d 679, 681 (6th Cir. 1989). The Court may
not conduct a de novo review of the case, resolve
evidentiary conflicts, or decide questions of credibility.
See Garner v. Heckler, 745 F.2d 383, 387 (6th Cir.
1984). It is the Commissioner who is charged with finding the
facts relevant to an application for disability benefits, and
her findings are conclusive provided they are supported by
substantial evidence. See 42 U.S.C. § 405(g).
evidence is more than a scintilla, but less than a
preponderance. See Cohen v. Sec'y of Health &
Human Servs., 964 F.2d 524, 528 (6th Cir. 1992)
(citations omitted). It is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389,
401 (1971); Bogle v. Sullivan, 998 F.2d 342, 347
(6th Cir. 1993). In determining the substantiality of the
evidence, the Court must consider the evidence on the record
as a whole and take into account whatever evidence in the
record fairly detracts from its weight. See Richardson v.
Sec'y of Health & Human Servs., 735 F.2d 962,
963 (6th Cir. 1984). The substantial evidence standard
presupposes the existence of a zone within which the decision
maker can properly rule either way, without judicial
interference. See Mullen v. Bowen, 800 F.2d 535, 545
(6th Cir. 1986) (citation omitted). This standard affords to
the administrative decision maker considerable latitude, and
indicates that a decision supported by substantial evidence
will not be reversed simply because the evidence would have
supported a contrary decision. See Bogle, 998 F.2d
at 347; Mullen, 800 F.2d at 545.
Usitalo was fifty-seven years of age as of her date last
insured. (PageID.98.) She had a high school education, and
was previously employed as a clerk and as a manager of sales
and scheduling. (PageID.72, 182.) She previously applied for
benefits on June 26, 2007, alleging disability beginning
November 11, 2006. That application resulted in an
unfavorable decision by ALJ Arline Colon on February 16,
2010, and does not appear to have been further pursued.
(PageID.84-92.) Instead, Mrs. Usitalo filed for DIB a second
time on April 15, 2013, again alleging disability beginning
November 11, 2006, due to a brain injury and a massive brain
bleed in 2013, a spinal cord injury, congestive heart
failure, high blood pressure, asthma, COPD, Raynaud's
disease, Erb's Palsy, an anticoagulant disorder, and
arthritis. (PageID.98-99, 169-174.) These applications were
denied on September 6, 2013, and Mrs. Usitalo subsequently
requested a hearing before an ALJ. (PageID.115-120.)
Unfortunately, Mrs. Usitalo died on August 13, 2014, shortly
before the administrative hearing in this case. (PageID.679.)
Upon her death, her widower, James Usitalo, was substituted
as the claimant in the administrative proceedings. On
September 9, 2014, Mr. Usitalo appeared with a non-attorney
representative before ALJ James J. Kent for an administrative
hearing at which time both Mr. Usitalo and a vocational
expert (VE) testified. (PageID.57-78.) On November 7, 2014,
the ALJ issued an unfavorable written decision that concluded
Mrs. Usitalo was not disabled prior to her date last insured.
(PageID.41-56.) On April 2, 2016, the Appeals Council
declined to review the ALJ's decision, making it the
Commissioner's final decision in the matter.
(PageID.31-37.) Thereafter, Mr. Usitalo initiated this action
under 42 U.S.C. § 405(g).
Usitalo's insured status expired on December 31, 2011,
several years before her death. (PageID.98.) To be eligible
for DIB under Title II of the Social Security Act, Mr.
Usitalo must establish that his wife became disabled prior to
the expiration of her insured status. See 42 U.S.C.
§ 423; Moon v. Sullivan, 923 F.2d 1175, 1182
(6th Cir. 1990).
social security regulations articulate a five-step sequential
process for evaluatingdisability. See 20 C.F.R.
§ 404.1520(a-f). If the Commissioner can make a dispositive
finding at any point in the review, no further finding is
required. See 20 C.F.R. § 404.1520(a). The
regulations also provide that if a claimant suffers from a
nonexertional impairment as well as an exertional impairment,
both are considered in determining the claimant's
residual functional capacity (RFC). See 20 C.F.R.
Usitalo has the burden of proving the existence and severity
of limitations caused by his wife's impairments and that
she was precluded from performing past relevant work through
step four. Jones v. Comm'r of Soc. Sec., 336
F.3d 469, 474 (6th Cir. 2003). At step five, it is the
Commissioner's burden “to identify a significant
number of jobs in the economy that accommodate the
claimant's residual functional capacity (determined at
step four) and vocational profile.” Id.
Kent determined Mrs. Usitalo's claim failed at step four.
The ALJ first determined that the issue of whether Mrs.
Usitalo was disabled between her alleged onset date and
February 16, 2010, had previously been addressed by ALJ
Colon's decision. ALJ Kent concluded that the doctrine of
res judicata applied to that period, and accordingly
stated he would address the issue of disability beginning
February 17, 2010. (PageID.44.) Proceeding with the five-step
evaluation, the ALJ determined, at step one, that Mrs.
Usitalo did not engage in substantial gainful activity
between her alleged disability onset date and her date last
insured. (PageID.46.) At step two, the ALJ found that through
the date last insured, Mrs. Usitalo had the severe
impairments of: a history of mitral valve replacement (2002),
on chronic Coumadin anticoagulation; hypertension; history of
right hip bursitis; chronic obstructive pulmonary disease
(COPD); migraine headaches; and one instance of renal
failure. (PageID.47.) At step three, the ALJ concluded that,
through her date last insured, Mrs. Usitalo did not have an
impairment or combination of impairments that met or equaled
the requirements of the Listing of Impairments found in 20
C.F.R. Pt. 404, Subpt. P, App. 1. (PageID.47.) At step four,
the ALJ determined Mrs. Usitalo retained the RFC, through her
date last insured, based on all the impairments:
to perform light work as defined in 20 CFR 404.1567(b) except
the claimant can push and pull frequently. The claimant can
occasionally stoop and crouch. She can perform frequent
manipulative maneuvers with the left hand for fingering,
handling, and feeling. She should avoid concentrated exposure
to noise, vibration, fumes, odors, dusts, gases, poor
ventilation, etc. The claimant's exposure to illumination
or florescent lighting cannot be any brighter than that of a
typical home, office setting, or public building. Her
exposure to noise intensity levels can be no more than a
moderate level as defined in the S.C.O. which is that of a
business office where typewriters are dues, [sic] department
stores, grocery stores, light traffic, and a fast food
restaurant in off hours. The claimant cannot perform
(PageID.47.) Continuing with the fourth step, the ALJ found
that through her date last insured, Mrs. Usitalo was capable
of performing her past relevant work as a clerk and as a
manger of sales and scheduling. The ALJ stated that because
Mrs. Usitalo's condition did not worsen during the
unadjudicated period, he was bound by the previous ALJ's
determination on the matter. (PageID.51-52.)
made his determination at step four, the ALJ concluded that
Mrs. Usitalo was not disabled at any time between her alleged
disability onset date and her date last insured. (PageID.52.)
ALJ Kent's RFC Determination.
assessing Mrs. Usitalo's claim for benefits, ALJ Kent
adopted the RFC findings previously articulated by ALJ Colon.
(See PageID.48.) Mr. Usitalo argues his wife's
impairments worsened subsequent to ALJ Colon's decision
and for this reason the decision by ALJ Kent to adopt the
previous RFC is not supported by substantial evidence. The
issue of whether or when a subsequent ALJ must follow an RFC
determination articulated by a prior ALJ has been addressed
by the Sixth Circuit in Dennard v. Sec'y of Health
& Human Servs., 907 F.2d 598 (6th Cir.1990), and
Drummond v. Comm'r of Soc. Sec., 126 F.3d 837
(6th Cir. 1997), as well as by the Social Security
Administration in Acquiescence Rulings (“AR”)
98-3(6) and 98-4(6).
v. Sec'y of Health & Human Servs.
filed an application for benefits which was eventually denied
on the ground that while he could no longer perform his past
relevant work, he retained the ability to perform sedentary
work which existed in significant numbers. Dennard,
907 F.2d at 598-99. Dennard later submitted another
application for benefits. This latter application was denied
by an ALJ on the ground that Dennard could perform
his past relevant work. Id. at 599. An appeal of
this decision to federal district court was unsuccessful. The
Sixth Circuit reversed the district court and ordered that
the matter be remanded for further consideration.
Id. at 600. Specifically, the court held that the
latter ALJ was estopped, on res judicata grounds, from
contradicting the prior determination that Plaintiff was
unable to perform his past relevant work. Id.
Drummond v. Comm'r of Soc. Sec.
filed an application for benefits which was denied based on a
finding that while she could no longer perform her past
relevant work she could perform sedentary work which existed
in significant numbers. Drummond, 126 F.3d at 838.
Drummond later filed another application for benefits which
was denied based on the finding that she retained the ability
to perform medium work. Id. at 838-39. After
unsuccessfully appealing the matter in federal district
court, Drummond pursued the matter in the Sixth Circuit.
Id. at 839-40. Based, in part, on the
Dennard decision, the Drummond court held
that “[w]hen 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. at 840-42. Thus, if an
earlier ALJ makes a finding regarding a claimant's RFC, a
later ALJ is bound by that RFC determination absent evidence
to the contrary. See, e.g., Gay v. Comm'r of
Soc. Sec., 520 F.App'x 354, 356 (6th Cir. 2013).
Acquiescence Rulings 98-3(6) and 98-4(6).
that Dennard and Drummond conflicted with
Social Security policy, the Social Security Administration
issued Acquiescence Rulings 98-3(6) and 98-4(6). See
AR 98-3(6), 1998 WL 274051 (S.S.A., June 1, 1998); AR
98-4(6), 1998 WL 274052 (S.S.A., June 1, 1998). With respect
to how Dennard and Drummond differed from
Social Security policy, the Social Security Administration
Under SSA policy, if a determination or decision on a
disability claim has become final, the Agency may apply
administrative res judicata with respect to a subsequent
disability claim under the same title of the Act if the same
parties, facts and issues are involved in both the prior and
subsequent claims. However, if the subsequent claim involves
deciding whether the claimant is disabled during a period
that was not adjudicated in the final determination or
decision on the prior claim, SSA considers the issue of
disability with respect to the unadjudicated period to be a
new issue that prevents the application of administrative res
judicata. Thus, when adjudicating a ...