Bercaw v. Commissioner of Social Security

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

TAMPA DIVISION

PAMELA SUE BERCAW,

Plaintiff,

v. Case No. 8:18-cv-2140-T-AEP

ANDREW M. SAUL,

Commissioner of Social Security,1

Defendant.

/

ORDER

Plaintiff seeks judicial review of the partial denial of her claim for a period of disability,

disability insurance benefits (“DIB”), and Supplemental Security Income (“SSI”). As the

Administrative Law Judge’s (“ALJ”) decision was based on substantial evidence and employed

proper legal standards, the Commissioner’s decision is affirmed.

I.

A. Procedural Background

Plaintiff filed an application for a period of disability, DIB, and SSI (Tr. 213-221). The

Commissioner denied Plaintiff’s claims both initially and upon reconsideration (Tr. 87-112).

Plaintiff then requested an administrative hearing (Tr. 135). Per Plaintiff’s request, the ALJ held

a hearing at which Plaintiff appeared and testified (Tr. 32-58). Following the hearing, the ALJ

issued a partially favorable decision finding that the Plaintiff was not disabled prior to

December 23, 2014, but became disabled on that date and continued to be disabled through the

1 Andrew M. Saul is now the Commissioner of Social Security. Pursuant to Rule 25(d) of the

Federal Rules of Civil Procedure, Andrew M. Saul should be substituted for Acting

Commissioner Nancy A. Berryhill as the defendant in this matter. No further action needs to

be taken to continue this matter by reason of the last sentence of section 205(g) of the Social

date of the decision (Tr. 16-23)2. Subsequently, Plaintiff requested review from the Appeals

Council, which the Appeals Council denied (Tr. 1). Plaintiff then timely filed a complaint with

this Court (Doc. 1). The case is now ripe for review under 42 U.S.C. §§ 405(g), 1383(c)(3).

B. Factual Background and the ALJ’s Decision

Plaintiff, who was born in 1965, claimed disability beginning December 23, 2014 (Tr.

20). Plaintiff obtained a high school education (Tr. 35). Plaintiff’s past relevant work experience

included work as a security officer (Tr. 35). Plaintiff alleged disability due to IBS, back pain,

depression, HBP, and mesenteric panniculitis (Tr. 78).

In rendering the administrative decision, the ALJ concluded that Plaintiff met the

insured status requirements through December 31, 2013 and had not engaged in substantial

gainful activity since December 23, 2014, the alleged onset date (Tr. 20). After conducting a

hearing and reviewing the evidence of record, the ALJ determined Plaintiff had the following

severe impairments: irritable bowel syndrome, panniculitis, chronic obstructive pulmonary

disease, degenerative disk disease, cubital tunnel syndrome, and depression. Id.

Notwithstanding the noted impairments, the ALJ determined Plaintiff did not have an

impairment or combination of impairments that met or medically equaled one of the listed

impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 20-21). The ALJ then concluded

that Plaintiff retained a residual functional capacity (“RFC”) to perform light work except the

claimant requires a sit-stand option alternating positions from 15-20 minutes; cannot perform

2 Based on the application for a period of disability and DIB protectively filed on December

23, 2014, the ALJ found Plaintiff not disabled under sections 216(i) and 223(d), respectively,

of the Social Security Act through December 31, 2013, the date last insured. But, the ALJ

found that, based on the application for SSI protectively filed on December 23, 2014, the

Plaintiff has been disabled under section 1614(a)(3)(A) of the Social Security Act beginning

on December 23, 2014. While a plaintiff must establish disability on or before the application

date to be entitled to a period of disability and DIB, a plaintiff need only show that they were

work involving hazards, temperature extremes or climbing; is able to perform unskilled low-

stress jobs, defined as simple, routine, and repetitive entry-level; and due to pain and irritable

bowel syndrome symptoms with the need for frequent bathroom visits, she will be off-task

greater than 10% of the time (Tr. 21). In formulating Plaintiff’s RFC, the ALJ considered

Plaintiff’s subjective complaints concerning the intensity, persistence, and limiting effects of

these symptoms and found them reasonably consistent with the medical evidence and other

evidence in the record (Tr. 22).

Considering Plaintiff’s noted impairments and the assessment of a vocational expert

(“VE”), the ALJ determined Plaintiff could not perform her past relevant work (Tr. 22). Given

Plaintiff’s background and RFC, the VE testified that there are no jobs available in the national

economy in significant numbers that the Plaintiff could perform (Tr. 23). Accordingly, based

on Plaintiff’s age, education, work experience, RFC, and the testimony of the VE, the ALJ

found Plaintiff disabled under section 1614(a)(3)(A) of the Social Security Act beginning on

December 23, 2014 (Tr. 23).

II.

To be entitled to benefits, a claimant must be disabled, meaning he or she must be unable

to engage in any substantial gainful activity by reason of any medically determinable physical

or mental impairment which can be expected to result in death or which has lasted or can be

expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§

423(d)(1)(A), 1382c(a)(3)(A). A “physical or mental impairment” is an impairment that results

from anatomical, physiological, or psychological abnormalities, which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. §§ 423(d)(3),

1382c(a)(3)(D).

The Social Security Administration, in order to regularize the adjudicative process,

promulgated the detailed regulations currently in effect. These regulations establish a

“sequential evaluation process” to determine whether a claimant is disabled. 20 C.F.R.

§§ 404.1520, 416.920. If an individual is found disabled at any point in the sequential review,

further inquiry is unnecessary. 20 C.F.R. §§ 404.1520(a), 416.920(a). Under this process, the

ALJ must determine, in sequence, the following: whether the claimant is currently engaged in

substantial gainful activity; whether the claimant has a severe impairment, i.e., one that

significantly limits the ability to perform work-related functions; whether the severe

impairment meets or equals the medical criteria of 20 C.F.R. Part 404 Subpart P, Appendix 1;

and whether the claimant can perform his or her past relevant work. If the claimant cannot

perform the tasks required of his or her prior work, step five of the evaluation requires the ALJ

to decide if the claimant can do other work in the national economy in view of his or her age,

education, and work experience. 20 C.F.R. §§ 404.1520(a), 416.920(a). A claimant is entitled

to benefits only if unable to perform other work. Bowen v. Yuckert, 482 U.S. 137, 140-42

(1987); 20 C.F.R. §§ 404.1520(g), 416.920(g).

A determination by the Commissioner that a claimant is not disabled must be upheld if

it is supported by substantial evidence and comports with applicable legal standards. See 42

U.S.C. §§ 405(g), 1383(c)(3). Substantial evidence is “such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) (internal quotation

marks omitted)); Miles v. Chater, 84 F.3d 1397, 1400 (11th Cir. 1996). While the court reviews

the Commissioner’s decision with deference to the factual findings, no such deference is given

to the legal conclusions. Keeton v. Dep’t of Health & Human Servs., 21 F.3d 1064, 1066 (11th

Cir. 1994) (citations omitted).

In reviewing the Commissioner’s decision, the court may not re-weigh the evidence or

substitute its own judgment for that of the ALJ even if it finds that the evidence preponderates

against the ALJ’s decision. Bloodsworth v. Heckler, 703 F.2d 1233, 1239 (11th Cir. 1983).

The Commissioner’s failure to apply the correct law, or to give the reviewing court sufficient

reasoning for determining that he or she has conducted the proper legal analysis, mandates

reversal. Keeton, 21 F.3d at 1066. The scope of review is thus limited to determining whether

the findings of the Commissioner are supported by substantial evidence and whether the correct

legal standards were applied. 42 U.S.C. § 405(g); Wilson v. Barnhart, 284 F.3d 1219, 1221

(11th Cir. 2002).

III.

Plaintiff alleges that the ALJ erred by reopening Plaintiff’s prior Title II application

without (1) applying the five-step sequential evaluation process; (2) properly evaluating the

severity of Plaintiff’s spondylosis and degenerative disc disease of the lumbar spine; (3)

applying the psychiatric review technique to properly evaluate the severity of Plaintiff’s mental

impairments; and (4) developing the record by ordering a consultative psychiatric examination.

As discussed below, despite Plaintiff’s arguments, the ALJ did not reopen Plaintiff’s prior Title

II application. As such, Plaintiff’s arguments fail. For the reasons that follow, the ALJ applied

the correct legal standards and the ALJ’s decision is supported by substantial evidence.

A. Reopening the 2014 application

As an initial matter, the Plaintiff premises her arguments on the ALJ’s alleged reopening

of Plaintiff’s prior Title II application. Reopening a prior determination is an “extraordinary

measure” warranted only by “specific and substantial reasons” set forth in the SSA regulations.

Bloodsworth v. Heckler, 703 F.2d 1233, 1238 (11th Cir. 1983). An ALJ’s application of res

judicata is “generally unreviewable by the federal courts.” Carson v. Colvin, No. 8:15-CV-751-

T-33TGW, 2016 WL 3525288, at *3 (M.D. Fla. May 16, 2016), report and recommendation

adopted sub nom. Carson v. Comm'r of Soc. Sec., No. 8:15-CV-751-T-33TGW, 2016 WL

3452934 (M.D. Fla. June 22, 2016). Nevertheless, a court may review the decision when the

claimant “raises a colorable constitutional issue” or when a de facto reopening has occurred.

Sherrod v. Chater, 74 F.3d 243, 245 (11th Cir. 1996); Passopulos v. Sullivan, 976 F.2d 642

(11th Cir. 1992); Cherry v. Heckler, 760 F.2d 1186, 1189 (11th Cir. 1985); Brown v. Sullivan,

921 F.2d 1233, 1237 (11th Cir. 1991) (holding that a court has subject matter jurisdiction to

review an administrative decision where there has been a reopening of a decision). The Plaintiff

has not raised a colorable constitutional issue; as such, the Court need only determine whether

the ALJ de facto reopened Plaintiff’s prior Title II application.

A final decision by the Secretary will be deemed reopened if it is “reconsidered on the

merits to any extent and at any administrative level.” Passopulos v. Sullivan, 976 F.2d 642, 645

(11th Cir. 1992); Bello v. Comm'r of Soc. Sec., 460 F. App'x 837, 841 (11th Cir. 2012) (noting

that mere intent to reconsider is not enough—instead, a “reopening requires an actual

reconsideration of the merits”). In other words, an ALJ reopens a case when they fail to apply

res judicata and base “an ultimate determination on a review of the record in the prior

application.” Passopulos v. Sullivan, 976 F.2d 642, 645 (11th Cir. 1992). Nevertheless, an ALJ

may “evaluate how newly presented evidence relates back to the prior application in order to

determine whether to reopen the case.” Id. at 646. See also Bello v. Comm'r of Soc. Sec., 460 F.

App'x 837, 841 (11th Cir. 2012) (noting that a “de facto reopening does not occur while the

SSA is merely evaluating newly proffered evidence to determine whether to reopen the case”);

Brown v. Sullivan, 921 F.2d 1233, 1237 (11th Cir. 1991) (holding that, while the ALJ had

indeed commented on the claimant’s condition prior to the SSI date in tandem with the second

application, the ALJ had not reopened the prior case when the ALJ “did so while considering

newly proffered evidence”); Wolfe v. Chater, 86 F.3d 1072, 1079 (11th Cir. 1996) (holding that

the ALJ’s determination that the “first two ALJs had erred” amounted to a reopening as it “went

beyond evaluating evidence for the purpose of making a reasoned determination of its res

judicata effect”); Carson v. Colvin, No. 8:15-CV-751-T-33TGW, 2016 WL 3525288, at *5

(M.D. Fla. May 16, 2016), report and recommendation adopted sub nom. Carson v. Comm'r of

Soc. Sec., No. 8:15-CV-751-T-33TGW, 2016 WL 3452934 (M.D. Fla. June 22, 2016) (holding

that the ALJ had not reopened the case when, “[u]nlike in Wolfe, in which the ALJ changed the

previous law judges’ decisions regarding their findings with respect to the plaintiff’s education

level, here, law judge Dent did not make any changes to the previous law judge’s decision.

Rather, law judge Dent specifically stated that he was comparing the plaintiff’s new evidence

with the evidence from the previous decision”).

Here, the Plaintiff relies on the following portion of the ALJ’s opinion to support her

argument that the ALJ reopened her previous Title II application:

The undersigned notes that the claimant filed previously a Title

II application for disability on April 15, 2014, which was denied

on June 18, 2014. Thus, she was found not disabled after her

alleged onset date of September 28, 2008 and after her date last

insured of December 31, 2013. Most notably, the undersigned

recognizes that per Hallex I-2-9-1 and I-2-4-40, a determination

becomes final if the claimant does not request timely appeal.

Moreover, Res Judicata applies to a prior determination with

respect to the same party, facts and issues. This doctrine can be

used to dismiss a Request for Hearing entirely or to refuse to

consider an issue on a subsequent application arising from the

same title of the Act. Thus, the claimant’s contention of disability

prior during this period has been resolved. Frankly, the only

pertinent remaining issue is whether the claimant was disabled

since her most recent SSI application noted above. Initially, J.

Patrick Peterson, Ph.D., concluded on February 27, 2015 that

there was insufficient evidence to substantiate the presence of a

disorder prior to the DLI. In concert, Edmund Molis, M.D., and

Robert Schilling, Ph.D., concluded a few months later that the

evidence supported no severe impairments prior to the DLI, as

Given the earlier records, their findings were reasonable. The

evidence after this point might support the de minimus

requirements to establish a severe impairment, but not disability

prior to the DLI.

Thus after a de nova [sic] review of the evidence, the undersigned

finds that the subsequently received sparse evidence dated prior

to the DLI might reasonably support that the claimant had severe

impairments, but failed to support that the claimant was disabled

on or prior to this disqualifying date.

(Tr. 16-17). The Court finds Plaintiff’s argument unavailing. The ALJ applied res judicata to

the Plaintiff’s Title II application by explicitly stating that “Res Judicata applies to a prior

determination with respect to the same party, facts and issues . . . [t]hus the claimant’s

contention of disability prior during this period has been resolved. Frankly, the only pertinent

remaining issue is whether the claimant was disabled since her most recent SSI application

noted above.” (Tr. 16). See generally Cherry v. Heckler, 760 F.2d 1186 (holding that there was

no reopening when the ALJ concluded that the second application was precluded by res judicata

to the extent it alleged disability prior to the date of the prior determination). Further, the ALJ

did not reconsider or change the previous Title II determination based on the previous record—

instead, the ALJ evaluated whether the new, “subsequently received” evidence would change

the previous determination (Tr. 16). To that effect, the ALJ determined that “[g]iven the earlier

records,” Plaintiff’s failure to establish severe impairments was reasonable and the new

evidence failed to change the determination of disability in the Plaintiff’s prior Title II

application (Tr. 16-17). Thus, the ALJ did not de facto reopen the Plaintiff’s prior Title II

application because the ALJ applied res judicata and did not base an ultimate determination on

a review of the previous record. As such, because the ALJ did not de facto reopen the Plaintiff’s

prior Title II application, the Court lacks subject matter jurisdiction to review the

Commissioner’s decision. Bello v. Comm'r of Soc. Sec., 460 F. App'x 837, 841-42 (11th Cir.

2012) (holding that “the district court did not err in finding that it lacked subject matter

jurisdiction” to review the matter as the ALJ had not de facto reopened the initial decision).

Accordingly, for the foregoing reasons, the ALJ applied the correct legal standards, and the

ALJ’s decision is supported by substantial evidence.

IV.

Accordingly, after consideration, it is hereby

ORDERED:

1. The decision of the Commissioner is affirmed.

2. The Clerk is directed to enter final judgment in favor of the Commissioner and close

the case.

DONE AND ORDERED in Tampa, Florida, on this 9th day of August, 2019.

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ANTHONY E. PORCELLI

United Sfates Magistrate Judge

cc: Counsel of Record

3 As previously noted, Plaintiffs subsequent contentions, namely, that the ALJ improperly

evaluated the severity of Plaintiff's spondylosis and degenerative disc disease of the lumbar

spine, failed to apply the psychiatric review technique when evaluating Plaintiff's mental

impairments, and failed to develop the record are premised on the ALJ de facto reopening

Plaintiff's prior Title Il application. Upon the Court’s finding that the ALJ did not de facto

reopen Plaintiff's prior Title II application, Plaintiff’s remaining arguments are rendered moot.