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Usitalo v. Commissioner of Social Security

United States District Court, W.D. Michigan, Southern Division

July 13, 2017

JAMES F. USITALO, on behalf of TONI R. USITALO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant,

          OPINION

          ROBERT J. JONKER CHIEF UNITED STATES DISTRICT JUDGE

         This is 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.

         STANDARD OF REVIEW

         The 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).

         Substantial 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.

         PROCEDURAL POSTURE

         Toni 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).

         Mrs. 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).

         ALJ'S DECISION

         The social security regulations articulate a five-step sequential process for evaluatingdisability. See 20 C.F.R. § 404.1520(a-f).[1] 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. § 404.1545.

         Mr. 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.

         ALJ 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 fast-paced work.

(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.)

         Having 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.)

         DISCUSSION

         1. ALJ Kent's RFC Determination.

         In 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).

         A.Dennard v. Sec'y of Health & Human Servs.

         Dennard 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.

         B. Drummond v. Comm'r of Soc. Sec.

         Drummond 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).

         C. Acquiescence Rulings 98-3(6) and 98-4(6).

         Finding 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 observed:

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 ...

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