# SMITH v. KIJAKAZI

> District Court, M.D. North Carolina · February 21, 2023

URL: https://www.frixlaw.com/law-library/cases/10254256

## Case

- **Court:** District Court, M.D. North Carolina
- **Decided:** February 21, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

RICHARD EUGENE SMITH, )
Plaintiff,
v. 1:22CV16
KILOLO KIJAKAZI,
Acting Commissioner of Social Security, )
Defendant.

MEMORANDUM OPINION AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
Plaintiff Richard Eugene Smith (“Plaintiff”) brought this action pursuant to Section
1631(c)(3) of the Social Security Act (the “Act”), as amended (42 U.S.C. § 1383(c)(3)), to obtain
judicial review of a final decision of the Commissioner of Social Security denying his claim for
Supplemental Security Income (“SSI”) under Title XVI of the Act. The parties have filed
cross-motions for judgment, and the administrative record has been certified to the Court for
review.
I. PROCEDURAL HISTORY
Plaintiff protectively filed his application for SSI on October 30, 2019, alleging a
disability onset date of January 1, 2019. (T'r. at 16, 287-93): His application was denied initially
(Tr. at 153-74, 201-05) and upon reconsideration (Tr. at 175-93, 212-21). Thereafter,
Plaintiff's requested an administrative hearing de novo before an Administrative Law Judge

! Transcript citations refer to the Sealed Administrative Record [Doc. #8].

(“ALJ”). (Tr. at 222.) On February 18, 2021, Plaintiff, along with his attorney and an impartial
vocational expett, attended the subsequent telephonic heating. (T't. at 16.) The AL] ultimately
concluded that Plaintiff was not disabled within the meaning of the Act (Tr. at 29), and, on
November 15, 2021, the Appeals Council denied Plaintiff's request for review, thereby making
the AL]’s ruling the Commissionet’s final decision for purposes of judicial review (Tr. at 1-7).
Il. LEGAL STANDARD
Federal law “authorizes judicial review of the Social Security Commissionet’s denial of
social security benefits.” Hines v. Barnhart, 453 F.3d 559, 561 (4th Cir. 2006). However, the

scope of review of such a decision is “extremely limited.” Frady v. Harris, 646 F.2d 143, 144
(4th Cir. 1981). “The courts are not to try the case de novo.” Oppenheim v. Finch, 495 F.2d
396, 397 (4th Cir. 1974). Instead, “a reviewing court must uphold the factual findings of the
AL] if they ate supported by substantial evidence and were reached through application of the
cortect legal standard.” Hancock v. Astrue, 667 F.3d 470, 472 (4th Cir. 2012) Gnternal
quotation omitted).
“Substantial evidence means ‘such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Hunter v. Sullivan, 993 F.2d 31, 34 (4th Cir. 1993)
(quoting Richardson v. Perales, 402 U.S. 389, 390 (1971)). “It consists of more than a mere
scintilla of evidence but may be somewhat less than a preponderance.” Mastro v. Apfel, 270
F.3d 171, 176 (4th Cir. 2001) (internal citations and quotation marks omitted). “If there is
evidence to justify a refusal to direct a verdict wete the case before a jury, then there is
substantial evidence.” Hunter, 993 F.2d at 34 (internal quotation marks omitted).

“In reviewing for substantial evidence, the court should not undertake to re-weigh
conflicting evidence, make credibility determinations, or substitute its judgment for that of the
[AL}].” Mastro, 270 F.3d at 176 Gnternal brackets and quotation marks omitted). “Where
conflicting evidence allows reasonable minds to differ as to whether a claimant is disabled, the
responsibility for that decision falls on the ALJ.” Hancock, 667 F.3d at 472. “The issue before
[the reviewing court], therefore, is not whether [the claimant] is disabled, but whether the
AL]’s finding that [the claimant] is not disabled is supported by substantial evidence and was
reached based upon a cortect application of the relevant law.” Craig v. Chater, 76 F.3d 585,
589 (4th Cir. 1996).
In undertaking this limited review, the Court notes that “[a] claimant for disability
benefits bears the burden of proving a disability.” Hall v. Harris, 658 F.2d 260, 264 (4th Cir.
1981). In this context, “disability” means the “inability 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 12 months.”’ Id. (quoting 42 U.S.C. § 423(d)(1)(A)).2
“The Commissioner uses a five-step process to evaluate disability claims.” Hancock,
667 F.3d at 472 (citing 20 C.F.R. §§ 404.1520(a)(4); 416.920(a)(4)). “Under this process, the
Commissioner asks, in sequence, whether the claimant: (1) worked during the alleged period

2 “The Social Security Act comptises two disability benefits programs. The Social Security Disability Insurance
Program (SSDD), established by Title IT of the Act as amended, 42 U.S.C. § 401 et seq., provides benefits to
disabled persons who have contributed to the program while employed. The Supplemental Security Income
Program (SSI), established by Title XVI of the Act as amended, 42 U.S.C. § 1381 et seq., provides benefits to
indigent disabled persons. The statutory definitions and the regulations promulgated by the Secretary for
determining disability, see 20 C.E.R. pt. 404 (SSDI); 20 CER. pt. 416 (SSI), governing these two programs ate,
in all aspects relevant here, substantively identical.” Craig, 76 F.3d at 589 1.1.

of disability; (2) had a severe impaitment; (3) had an impairment that met or equaled the
requirements of a listed impairment; (4) could return to her past relevant work; and (5) if not,
could perform any other work in the national economy.” Id.
A finding adverse to the claimant at any of several points in this five-step sequence
fotecloses a disability designation and ends the inquiry. For example, “[t]he first step
determines whether the claimant is engaged in ‘substantial gainful activity.’ If the clatmant is
working, benefits are denied. The second step determines if the claimant is ‘severely’ disabled.
If not, benefits are denied.” Bennett_v. Sullivan, 917 F.2d 157, 159 (4th Cir. 1990).
On the other hand, if a claimant carries his or her burden at the first two steps, and if
the claimant’s impairment meets or equals a “listed impairment” at step three, “the claimant
is disabled.” Mastto, 270 F.3d at 177. Alternatively, if a claimant clears steps one and two,
but falters at step three, i.e., “fi]f a claimant’s impaitment is not sufficiently severe to equal or
exceed a listed impairment,” then “the ALJ must assess the claimant’s residual functional
capacity (RFC’).” Id. at 179.3 Step four then requires the AL] to assess whether, based on
that RFC, the claimant can “perform past relevant work”; if so, the claimant does not qualify
as disabled. Id. at 179-80. However, if the claimant establishes an inability to return to prior
work, the analysis proceeds to the fifth step, which “requires the [Government] to prove that

3 “REC is a measurement of the most a claimant can do despite [the claimant’s] limitations.” Hines, 453 F.3d
at 562 (noting that administrative regulations require RFC to reflect claimant’s “ability to do sustained work-
related physical and mental activities in a work setting on a regular and continuing basis . . . [which] means 8
houts a day, for 5 days a week, or an equivalent work schedule” (internal emphasis and quotation marks
omitted)). The RFC includes both a “physical exertional or strength limitation” that assesses the claimant’s
“ability to do sedentary, light, medium, heavy, or very heavy work,” as well as “nonexertional limitations
(mental, sensory, or skin impairments).” Hall, 658 F.2d at 265. “REC is to be determined by the AL] only after
[the ALJ] considers all relevant evidence of a claimant’s impairments and any related symptoms (¢.g., pain).”
Hines, 453 F.3d at 562-63.

a significant number of jobs exist which the claimant could perform, despite the claimant’s
impairments.” Hines, 453 F.3d at 563. In making this determination, the AL] must decide
“whether the claimant is able to perform other work considering both [the claimant’s RFC]
and [the claimant’s] vocational capabilities (age, education, and past work experience) to adjust
to a new job.” Hall, 658 F.2d at 264-65. If, at this step, the Government cannot carry its
“evidentiary burden of proving that [the claimant] remains able to work other jobs available
in the community,” the claimant qualifies as disabled. Hines, 453 F.3d at 567.
If. DISCUSSION
In the present case, the AL] found that Plaintiff had not engaged in “substantial gainful
activity” since his amended alleged onset date of August 26, 2014. The ALJ therefore
concluded that Plaintiff met his burden at step one of the sequential evaluation process. (Tr.
at 19.) At step two, the ALJ further determined that Plaintiff suffered from the following
severe impairments:
degenerative disc disease of the cervical spine; degenerative changes [of] the
fifth PIP joint with small avulsion fracture; diabetes with neuropathy; COPD{[,]
status post brush fire burn to the right upper extremity [and] right flank; anxiety;
and depression|.]
(Tr. at 19.) The AL] found at step three that none of these impairments, individually or in
combination, met or equaled a disability listing. (Tr. at 19-21.) Therefore, the ALJ assessed
Plaintiff's RFC and determined that he could perform medium work with further limitations.
Specifically, the ALJ found that
[Plaintiff can] sit for six hours in an eight hour workday; stand and/or walk for
six hours in an eight hour workday; occasional climbing of ramps or staits, but
no climbing of ladders, topes, or scaffolds; frequent balancing, stooping,
kneeling, and crouching; no crawling; frequent forward, lateral, and overhead
reaching with the right upper extremity; frequent handling and fingering; must

avoid concentrated exposure to pulmonary irritants such as fumes, odors, dust
and gases; no exposure to hazardous machinery or unprotected heights; able to
understand, remember, and carry out simple tasks while maintaining attention
and concentration for two hours at a time before requiring a regularly scheduled
break; low stress work, defined as only occasional decision-making and only
occasional changes in the work setting; occasional interaction with coworkers
and supervisors; and aside from incidental contact, can have no interaction with
the public.
(Tr. at 21.)
The ALJ determined at step four of the analysis that all of Plaintiff's past relevant work
exceeded the above RFC. (Tr. at 27.) However, the ALJ concluded at step five that, given
Plaintiffs age, education, work experience, and RFC, along with the testimony of the
vocational expert regarding those factors, Plaintiff could perform jobs available in substantial
numbers in the national economy and therefore was not disabled. (Tr. at 28-29.)
Plaintiff now contends that substantial evidence fails to support the AL]’s RFC
assessment. Specifically, Plaintiff argues (1) that the ALJ erred in finding that Plaintiffs
activities of daily living were inconsistent with his allegations regarding pain and other
symptoms, and (2) that overall, the ALJ failed to “provide a logical bridge linking the evidence
in the record to his conclusions” (PI.’s Br. [Doc. #13] at 6, 12).
Plaintiff first challenges the ALJ’s reliance on Plaintiffs activities of daily living as
evidence that he could perform work at the medium exertional level. In particular, the AL]
telied on PlaintifPs purported ability to clear and burn brush, which the AL] characterized as
“heavy yard work.” (See T'r. at 22, 24, 25, 27.) As Plaintiff correctly notes, the record indicates
that he cleared brush only once, on September 27, 2019, more than a month before his
application date for SSI. (Pl.’s Br. at 13-14) (citing Tr. at 93-94, 766, 867). Plaintiff further
testified that he was “helping out” a friend on that occasion, that he was near to some brush

and hit a gas can and it exploded or ignited causing burns to Plaintiffs right arm, shoulder,
and abdomen. (See Tr. at 93-94.) The medical records reflect that Plaintiff was “trying to
statt a brush fire to clear some brush on his property with some gasoline” and the fire flared

up and burned his tight arm and chest. (T'r. at 755, 875.) Most crucially, the AL] acknowledged
that, while burning brush in September 2019, Plaintiff received injuries severe enough to
impact his RFC. Specifically, the ALJ included “status post brush fire burn to the right upper
extremity [and] right flank” among Plaintiff's severe impairments at step two of the sequential
analysis. (Tr. at 19.) Despite finding that Plaintiffs burns restricted his ability to perform
basic work tasks, the AL] relied on Plaintiffs apparently unsuccessful attempt to burn brush
ptiot to the relevant period as a basis to find that he could perform “heavy yard work.” (Tr.
at 26-27,)
Defendant concedes that the ALJ mischaracterized Plaintiffs burning brush as being
during the relevant period, but she argues that “the ALJ did not solely rely on this one activity
when finding Plaintiff not disabled within the meaning of the Act.” (Def’s Br. [Doc. #15] at
25.) Therefore, she contends that “remand would be futile.” id.) While a finding of futility
might be appropriate where an ALJ made a scrivenet’s error or misstated one activity in a
laundry-list of others, the AL] in this case primarily, and repeatedly, relied on Plaintiff's ability
to perform heavy yard work as a basis for his RFC findings. Specifically, when summarizing
the medical evidence, the ALJ related that,
in September 2019, [Plaintiff] required emergent treatment for second-degree
burns to the right side of his body, which he sustained while trying to clear brush
on his propetty. This activity is not consistent with the degree of neck and back
pain alleged by [Plaintiff].

(Tr. at 22.) The ALJ then referenced Plaintiffs ability to perform heavy yard work three
additional times to support his conclusion that Plaintiff was capable of medium work. These

passages read as follows:

e Plaintiffs “daily activities, which include household chores and somewhat heavy
outside work, such as clearing brush, are not inconsistent with the ability to perform
work at the medium level.” (Tr. at 24.)
e [Plaintiff's] “high-functioning activities of daily living, which include household chores
and heavy yard work, suggest the ability to perform work at the medium exertional
level.” (Tr. at 25.)
e And “[flinally, [Plaintiffs] activities of daily living, which included the ability to clear
brush with fire during the relevant period, are not inconsistent with the residual
functional capacity for a teduced range of unskilled, medium-level work as assessed
herein.” (Tr. at 27.)
Overall, the ALJ used Plaintiff's alleged ability to perform heavy yard work both to discount
the impact of his impairments on his ability to perform basic work activities and to discount
the credibility of Plaintiff's allegations generally. Therefore, the AL]’s treatment of Plaintiff's
activities played a pivotal role in his RFC assessment.
Plaintiff acknowledges that the ALJ was entitled to consider Plaintiffs daily activities
when evaluating his symptoms and their impact on his functioning. However, In Woods v.
Berryhill, the Fourth Circuit explained that “[a]Jn ALJ may not consider the type of activities a
claimant can perform without also considering the extent to which she can perform them.”
Woods v. Berryhill, 888 F.3d 686, 694 (4th Cir. 2018); see also Lewis v. Berryhill, 858 F.3d
858, 868, n.3 (4th Cir. 2017) (“The ALJ points to Lewis’ ability to perform incremental
activities interrupted by periods of rest, such as ‘driv[ing] short distances of up to 30 miles,
shop for groceries with the assistance of her mother or roommate, handle her finances, and

watch television.” The ALJ’s conclusion that Lewis’ activities demonstrate she is capable of
work is unsupported by the record.”) (citation omitted); Brown v. Comm?’r, 873 F.3d 251, 263
(4th Cir. 2017) (“[I]he ALJ noted that Brown testified to daily activities of living that included
‘cooking, driving, doing laundry, collecting coins, attending church and shopping.’ The AL]
did not acknowledge the extent of those activities as described by Brown, e.g., that he simply
ptepated meals in his microwave, could drive only short distances without significant
discomfort, only occasionally did laundry and looked at coins, and, by the time of the second
ALJ hearing, had discontinued regular attendance at church and limited his shopping to just
thirty minutes once a week. Moreover, the AL] provided no explanation as to how those
particular activities—or any of the activities depicted by Brown—showed that he could persist
through an eight-hour workday.”); see also Fletcher v. Colvin, No. 1:14CV380, 2015 WL
4506699 at *5-8 (M.D.N.C. Jul. 23, 2015).
Here, the AL] cites no evidence that Plaintiff could perform heavy yard work at all
during the relevant time period, particularly after receiving burns which caused further
limitation and also injuring his right shoulder and mid-back in a March 2020 fall. (See Tr. at
23.) The ALJ purports to account for Plaintiffs additional injuries by limiting him to “frequent
forward, lateral, and overhead teaching with the right upper extremity.” (Tr. at 25.) However,
much of the evidence the ALJ relies upon for the RFC assessment predates Plaintiff's shoulder
injuty and, in at least one instance, his burn injuries as well. (See Tr. at 27.) Perhaps most
notably, the prior April 2019 administrative decision limited Plaintiff to occasional overhead
teaching in addition to light exertional level work. (Tr. at 27.) The AL] fails to properly
explain how the evidence now supports less testrictive reaching limitations, despite two

additional injuries to Plaintiffs upper extremities, or how the evidence reflects improvement
since the prior administrative decision to support an increased ability to perform medium
work.
Notably, it appears that the AL] relied in large part on the opinion of the State agency
consultant at the initial level, Dr. Evelyn Jimenez-Medina, who completed her review in
Februaty 2020. Dr. Jimenez-Medina concluded that Plaintiff was capable of medium work.
(Ir. at 169.) However, in teaching this conclusion, she made no mention of the prior
administrate findings from April 2019. (See Tr. at 165-69.) She also did not include Plaintiffs
degenerative disc disease in her analysis, even though that had been determined to be a sevete
impaitment in the prior administrative decision. In contrast, the State agency consultant on
reconsideration, Dr. Jeffrey Merrill, completed his review in May 2020. At that time, he noted
as follows:
At initial the [claimant’s] primary severe MDI [medically determinable
impairment] was found to be HTN [hypertension] which is inappropriate as the
[claimant] is not shown to have any functional sequelae of his HTN
[hypertension]. [Claimant’s] known spinal degenerative disc disease was not
noted nor were the ALJ’s conclusions in the context of Albright even
mentioned.
The record since the 4/19 ALJ decision does not offer evidence which
substantially refutes the conclusions of the ALJ at that trme. The [clatmant’s]
functional deficits with respect to his diabetes, COPD and spinal degenerative
disease were all less than marked leading up to the 4/19 decision and remain so.
In the absence of evidence refuting the judge’s conclusions they are adopted in
accordance with Albright.
(Tr. at 188.)
The ALJ’s evaluation of the State agency opinions ignores Dr. Merrill’s concerns
regarding the omission and mischaracterization of Plaintiffs impairments at the initial level,

10

as well as Dr. Jiminez-Medina’s failure to explain her significant upward departure from the
ptevious administrative decision. (T't. at 24-25.) In favoring Dr. Jiminez-Medina’s opinion
over Dr. Mertill’s, the AL) asserted that Plaintiffs “ability to perform work at the medium
exertional level is well-supported by the objective evidence, including generally mild imaging
studies and largely unremarkable examination findings, which do not show any problems with
[Plaintiff's] gait or extremity strength.” (Ir. at 24.) The AL] further relied on Plaintiffs
“sparse and conservative treatment,” the lack of recommendations “for specialized care or
invasive treatment modalities,” and, once again, Plaintiffs “high-functioning activities of daily
living,” including “heavy outside work.” (T'r. at 24-25.)4
However, this analysis does not properly consider the prior administrative decision
under the case law applicable in the Fourth Circuit. Under Social Security Acquiescence Ruling
00-1(4), “where a final decision of SSA after a heating on a prior disability claim contains a
finding required at a step in the sequential evaluation process for determining disability, SSA
must consider such finding as evidence and give it appropriate weight in light of all relevant

* Notably, in some instances, the AL] omitted or mischaracterized evidence favorable to Plaintiff when
evaluating the record. For example, the AL} stated that Plaintiff had “full grip strength” at his January 2020
consultative examination with Dr. Stephen Burgess. (Tr. at 22-23.) In fact, Dr. Burgess noted significantly
reduced grip strength in Plaintiffs right hand compared to his left and, overall, found that Plaintiff had “very
pronounced issues with the hands.” (Tr. at 900-01.) Two months later, on March 3, 2020, Plaintiff presented
with bilateral shoulder pain, exacerbated by abduction and rotation, with multiple tender points over his joints
and a significantly reduced range of shoulder motion, which prevented him from lifting his arms above his
shoulders. (Tr. at 912.) When Plaintiff subsequently fell and injured his right shoulder and thorax nine days
later, x-ray imaging revealed “AC joint degenerative changes,” which objectively supported his previous pain
complaints and limited range of motion. (See Tr. at 914,916.) Imaging subsequently reflected degenerative
changes in the joints in his hand. (Tr. at 959, 977.) In addition, with respect to the extent of Plaintiff's
treatment, as Plaintiff correctly notes, “the evidence of record is sparse due to [his] lack of insurance and reliance
on free clinics and emergency room visits for most of his care.” (PL’s Br. at 8); (see also Tr. at 41, 45, 47). In
addition, the record indicates at least one referral to orthopedics for injuries to Plaintuff’s right hand (Tr. at 970,
972), as well as a referral for physical therapy. Although Plaintiff did not follow-up on these referrals, much of
the time petiod at issue was impacted by restrictions related to the COVID-19 pandemic, in addition to
Plaintiffs limitations related to his lack of insurance and reliance on free clinics.
11

facts and circumstances when adjudicating a subsequent disability claim involving an
unadjudicated period.” Interpreting Lively, SSAR 00-1(4), 2000 WL 43774, Jan. 12, 2000).
This ruling is an acknowledgement of the decision of the Fourth Circuit in Lively v. Sec. of
Health & Human Servs., 820 F.2d 1391, 1392 (4th Cir. 1987), which noted that res judicata
applies to Social Security disability cases and “prevents reappraisal of both the Sectetary’s
findings and his decision in Social Security cases that have become final.” ‘The Lively decision

was further clarified by the Fourth Circuit in Albright, in which the court explained:
Rather than signaling a sea change in the law of preclusion, the result in Lively
is instead best understood as a practical illustration of the substantial evidence
tule. In other words, we determined that the finding of a qualified and
disinterested tribunal that Lively was capable of performing only light work as
of a cettain date was such an important and probative fact as to render the
subsequent finding to the contrary unsupported by substantial evidence. To
have held otherwise would have thwarted the legitimate expectations of
claimants—and, indeed, society at large—that final agency adjudications should
catty considerable weight.
Albright v. Comm’r of Soc. Sec. Admin., 174 F.3d 473, 477-78 (4th Cir.1999). The Social
Security Administration issued Acquiescence Ruling 00—1(4) following the Lively and Albright
decisions, promulgating the procedure an adjudicator must follow when there is a final
decision by the ALJ or Appeals Council in a prior disability claim:
When adjudicating a subsequent disability claim arising under the same or a
different title of the Act as the prior claim, an adjudicator determining whether
a claimant is disabled during a previously unadjudicated period must consider
such a prior finding as evidence and give it appropriate weight in light of all
relevant facts and citcumstances. In determining the weight to be given such a
prior finding, an adjudicator will consider such factors as: (1) whether the fact
on which the prior finding was based is subject to change with the passage of
time, such as a fact relating to the severity of a claimant’s medical condition; (2)
the likelihood of such a change, considering the length of time that has elapsed
between the period previously adjudicated and the petiod being adjudicated in
the subsequent claim; and (3) the extent that evidence not considered in the

12

final decision on the prior claim provides a basis for making a different finding
with respect to the petiod being adjudicated in the subsequent claim.
AR 00-1(4) (S.S.A. Jan. 12, 2000) (emphasis added).
In Lively, which was the genesis of this rule, the Court of Appeals for the Fourth Circuit
considered a case in which the claimant had been previously determined to be limited to light
work, and was denied benefits on the basis of his ability to find other work within that
limitation. However, the claimant in that case applied for benefits again after turning 55, when

a limitation to light work would have resulted in a finding of “disabled” under the Medical
Vocational Guidelines (the Grids). The ALJ then found the claimant no longer limited to light
work and again denied benefits. The Fourth Circuit described the scenario as follows:
On October 19, 1981, the appellant, a coal miner, was denied disability
insurance benefits (DIB) under the Social Security Act, because he was not
disabled under the Secretary's Grid Rules, 20 C.F.R. Part 404, Subpart P, App.
2. The particular Grid Rule applied was Rule 202.10, pertaining to persons under
age 55, whose exertional limitations preclude more than “light work,” as defined
in the Secretary's regulations, 20 C.F.R. § 404.1567(b). The Administrative Law
Judge, after full evaluation of the evidence, specifically found that Mr. Lively
“has the residual functional capacity for substantial gainful activity of a light
nature.” The Appeals Council affirmed the October, 1981 decision, and the
appellant was unsuccessful in his quest for judicial review of that decision. It
thus became final for all purposes.
On November 3, 1981, just several weeks after the AL]’s denial of his DIB
claim, Mr. Lively became 55 years of age, thus qualifying as an individual of
“advanced age” under the Secretary's regulations. 20 C.F.R. § 404.1563(d). A
person with appellant’s educational and vocational backgrounds, of advanced
age, and limited to light work is considered disabled under the Grid Rules. 20
C.F.R. Part 404, Subpart P, App. 2, Rule 202.02. When plaintiff filed a second
disability benefits application (on December 14, 1983), an ALJ hearing was held,
which resulted in a conclusion that plaintiff was not disabled. The ALJ, without
discussion of the 1981 finding that appellant was limited to light work, found
that the claimant retained the functional capacity for the performance of work
activity at any exertional level on and prior to December 31, 1981. After the
AL}’s decision was adopted by the Appeals Council, the appellant sought
judicial review, but a United States Magistrate concluded that the evidence
13

before the ALJ on the 1983 application was sufficient to sustain his conclusion
of non-disability as of December 31, 1981, the date on which appellant's insured
status expited. The District Judge adopted the Magistrate’s Report and
Recommendation, and this appeal ensued. We reverse.
It is by now well-established that fundamental and familiar principles of res
judicata apply in Social Security disability cases. Benko v. Schweiker, 551 F.
Supp. 698, 701 (D.N.H.1982). Congress has cleatly provided by statute that es
judicata ptevents reapptaisal of both the Secretary’s findings and his decision in
Social Security cases that have become final, 42 U.S.C. § 405(h), and the courts
have readily applied res judicata to prevent the Secretary from reaching an
inconsistent result in a second proceeding based on evidence that has already
been weighed in a claimant’s favor in an earlier proceeding. Gavin v. Heckler,
811 F.2d 1195, 1200 (8th Cir.1987). In the present case, it is true that the prior
administrative proceeding did not result in a decision favorable to the appellant.
Thus, Gavin is not strictly controlling. The statute upon which Gavin’s holding
rests, though, 42 U.S.C. § 405(h), gives finality to findings, as well as decisions,
made in previous proceedings between the parties.
The first ALJ found, in 1981, that plaintiff was limited to light work, and the
Secretary successfully defended that finding on judicial review. Some two weeks
after appellant was found limited to light work, he became 55 years of age. It is
utterly inconceivable that his condition had so improved in two weeks as
to enable him to perform medium work. Principles of finality and
fundamental fairness drawn from § 405(h), as discussed above, indicate
that the Secretary must shoulder the burden of demonstrating that the
claimant’s condition had improved sufficiently to indicate that the
claimant was capable of performing medium work. Cf. Dotson v.
Schweiker, 719 F.2d 80 (4th Cir.1983). Certainly, there was no evidence of
any such miraculous improvement, and, as Gavin makes clear, 811 F.2d
at 1200, such evidence, not considered in the earlier proceeding, would
be needed as an independent basis to sustain a finding contrary to the
final earlier finding.
Because the appellant was limited to light work when he attatned 55 years of
age, he was entitled to benefits on his second application therefor. ‘Thus, the
decision of the District Court will be reversed, and the matter will be remanded
fot the entry of judgment in favor of the appellant.
Lively, 820 F.2d at 1391-92 (4th Cir.1987).
In the present case, the ALJ failed to follow these directives when considering the
impact of Plaintiffs prior, adverse administrative decision from 2019. In that prior 2019
14

decision, the ALJ concluded that Plaintiff was limited to light work beginning from August 1,
2013 through the April 15, 2019 decision, as a result of gradually progressing degenerative disc
disease, diabetes with neuropathy, and chronic respiratory insufficiency (Tr. at 130, 138.). An
even earlier administrative decision dated March 20, 2014, similarly found that Plaintiff was
limited to light work as a result of diabetes and degenerative disc disease of the spine for the
petiod from March 28, 2012 through the date of the decision. Thus, two AL]s have found
Plaintiff limited to light work due to diabetes and degenerative disc disease of the spine for
the period March 2012 through April 2019. As in Lively, that determination would have
resulted in an entitlement to benefits under the Grids once Plaintiff turned 55, and potentially
in weeks and months immediately prior to his birthday. 20 C.P-R. § 404.1563(b); Medical
Vocational Rule 202.02. Nevertheless, in the present decision which covers the period
beginning only six months later in October 2019, and which was issued in March 2021, less
than two weeks prior to Plaintiffs 55% birthday, the AL] concluded that Plaintiff was now
capable of medium work. In analyzing the prior decision, the AL] quoted the prior 2019 RFC
in full and concluded that “[t]his assessment is not persuasive, as the update record supports
less restrictive limitations consistent with medium level work.” (Tr. at 27.) Notably, as in
Lively, the AL] did not explain how Plaintiffs condition had so improved in six months as to
enable him to perform medium work. “Principles of finality and fundamental fairness drawn
from § 405(h), as discussed above, indicate that the Secretary must shoulder the burden of
demonstrating that the claimant’s condition had improved sufficiently to indicate that the
claimant was capable of performing medium work.” Lively, 820 F.2d at 1392. As in Lively,
“there was no evidence of any such miraculous improvement,” nor was there an explanation

15

of evidence, not considered in the earlier proceeding, as an independent basis to sustain a
finding contrary to the final earlier finding. The ALJ did make reference to “updated records,”
but there were no new lumbar or thoracic x-rays or other images taken, and the new cervical
and shoulder images continued to reflect degenerative changes. In addition, Plaintiffs
activities of daily living remained the same. The 2019 decision reflected that Plaintiff could
“work in the yard for short amounts of time” and could “mow the lawn for 10 to 15 minutes,
and then has to lie down due to pain.” (Tr. at 133.) As a result, it appears that the AL] in the
present case simply disagreed with the earlier findings, without pointing to evidence of
improvement or evidence not considered in the earlier proceedings, which raises the same
concerns noted by the Fourth Circuit in Lively, that Plaintiff was suddenly capable of medium
work rather than light work once the limitation to light work would result in a finding of
disabled under the Grids.° See also Albright, 174 F.3d at 478 (noting that in Lively, the Fourth
Circuit “determined that the finding of a qualified and disinterested tribunal that Lively was
capable of performing only light work as of a certain date was such an important and probative
fact as to render the subsequent finding to the contrary unsupported by substantial evidence.
To have held otherwise would have thwarted the legitimate expectations of clatmants—and,
indeed, society at large—that final agency adjudications should carry considerable weight.
Even more importantly, judicial ratification of the SSA’s ‘bait-and-switch’ approach to
resolving Lively’s claum would have produced a result reasonably percetved as unjust and
fundamentally unfair.”) Moreover, to the extent the AL] in the present case concluded that
the prior decision was “not persuasive,” the ALJ’s analysis fails to follow the guidance of AR

5 Further, the ALJ’s analysis relied on the misstatements and omissions noted above, raising further concern.
16

00-1(4), which provides for the consideration of myriad factors, including the length of time
between the prior ruling and the present claims and whether Plaintiffs impairments were
subject to change over time. Here, nothing suggests that the ALJ considered these factors or
undertook the analysis requited by AR 00-1(4) before rejecting the RFC set out in the prior
decision.© In the circumstances, and for all of the reasons discussed above, the Court agrees
with Plaintiffs contention that the AL] failed to adequately explain his conclusion that Plaintiff
could perform competitive work at the medium level of exertion, and therefore substantial
evidence fails to support the AL]’s determination.
IT IS THEREFORE RECOMMENDED that the Commissioner’s decision finding
no disability be REVERSED, and that the matter be REMANDED to the Commissioner
under sentence four of 42 U.S.C. § 405(g). The Commissioner should be directed to remand
the matter to the AL] for proceedings consistent with this Recommendation. ‘To this extent,
Defendant’s Motion for Judgment on the Pleadings [Doc. #14] should be DENIED, and
Plaintiffs Motion for Summary Judgment [Doc. #12] should be GRANTED.
This, the 21st day of February, 2023.
/s/ Joi Elizabeth Peake
United States Magistrate Judge

© Because this issue was implicitly, but not explicitly, raised in Plaintiff's briefing, Defendant has not directly
addressed Lively, Albright, or AR 00-1(4). Therefore, if Defendant believes there are additional considerations
that would affect this determination, Defendant may request reconsideration of this Recommendation.
17

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10254256. Public record. Not legal advice.