Nickerson v. SSA CV-03-391-PB 02/24/05
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
George Nickerson
v. Civil No. 03-391-PB 2 005 DNH 031 Jo Anne B. Barnhart, Commissioner, Social Security Administration
MEMORANDUM AND ORDER
_____ Pursuant to 42 U.S.C. § 405(g), George Nickerson moves to
reverse the Commissioner of Social Security's decision denying
his application for disability insurance benefits under Title II
of the Social Security Act, 42 U.S.C. § 423 (the "Act"). The
Commissioner objects, and moves for an order affirming her
decision. For the reasons set forth below, I reverse the
Commissioner's decision in part, affirm in part, and remand this
case for further proceedings consistent with this Memorandum and
Order.
I. BACKGROUND
A. Procedural History
Nickerson has applied for disability insurance benefits on
at least two occasions prior to his most recent application. His first application was filed on April 1, 1993. Transcript of
Record ("Tr.") 93-96. This application was denied on procedural
grounds. His second application was filed on June 2, 1993. Tr.
102-105. Because both applications alleged April 22, 1992 as the
initial onset date, the Administrative Law Judge ("ALJ"), Ruth
Kleinfeld, reopened the first application and consolidated the
facts of that application with those of the second. After
holding a hearing, the ALJ issued a decision on April 26, 1995
finding that Nickerson was not disabled under the Act. Tr. 303.
On September 11, 1997, Nickerson filed a third disability
insurance benefits application. This time, he alleged July 1,
1992 as the date of onset. Tr. 349-351. His case was handled by
ALJ Robert Klingebield. As an initial matter, Klingebield
declined to reopen Nickerson's previous disability insurance
application, concluding that ALJ Kleinfeld's April 26, 1995
decision was final and binding. Tr. 16. Klingebield further
determined that administrative finality, or res judicata,
precluded him from considering "issues" disposed of in the
earlier decision. Id. The parties construe this to mean that
evidence concerning Nickerson's status between July 1, 1992, the
designated date of initial onset in the prior application, and
2 April 26, 1995, the date the decision was rendered by the ALJ in
that case, was ignored by the ALJ in the course of reaching his
determination. From the record, it appears as if the parties'
characterization is correct.
After reviewing the remaining evidence, the ALJ employed
the mandatory five-step seguential evaluation process to reach a
conclusion about Nickerson's status.1 The ALJ found that
although Nickerson suffered from a severe impairment, because he
had the ability to perform low-stress jobs and lift light weight,
he was not prevented from doing all types of work available in
the national economy. Tr. 23, Finding Nos. 6-11. The ALJ based
this decision on his assessment of Nickerson's residual
functional capacity. Id., Finding No. 4. According to the ALJ,
Nickerson could not "carry more than 20 pounds or more than ten
pounds on a regular basis and he was restricted to low stress
jobs and to performing only routine job tasks." Otherwise, the
1 That evaluation reguires the SSA to determine: (1) whether the claimant is presently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment; (3) whether the impairment meets or eguals a listed impairment; (4) whether the impairment prevents the claimant from performing past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. See 20 C.F.R. § 404.1520; 20 C.F.R. § 416.920 .
3 ALJ concluded that Nickerson was able to function proficiently in
the job market. Id. As a result, the ALJ concluded that
Nickerson was not disabled within the meaning of the Act, and
denied him benefits. Id., Finding No. 12.
B. Stipulated Facts
Pursuant to Local Rule 9.1(d), the parties have submitted a
Joint Statement of Material Facts which are part of the court's
record (Doc. No. 8). The facts relevant to this Memorandum and
Order are discussed as appropriate.
II. STANDARD OF REVIEW
A. Properly Supported Findings Entitled to Deference
The parties now seek review of the Commissioner's findings.
After a final decision by the Commissioner denying a claimant's
application for benefits, and upon a claimant's timely reguest, a
district court is authorized to review the administrative record
and enter a judgment affirming, modifying, or reversing the
Commissioner's decision. See 42 U.S.C. § 405(g). The court's
review, however, is limited in scope. It must accede to the
Commissioner's factual findings if they are supported by
4 substantial evidence. See id.; Irlanda Ortiz v. Sec'y of HHS,
955 F.2d 765, 769 (1st Cir. 1991). The Commissioner is
responsible for making credibility determinations, drawing
inferences from the evidence, and resolving evidentiary conflict.
Irlanda Ortiz, 955 F.2d at 769; Frustaglia v. Sec'y of HHS, 829
F.2d 192, 195 (1st Cir. 1987). Therefore, the court must
"'uphold the [Commissioner's] findings . . . if a reasonable
mind, reviewing the evidence in the record as a whole, could
accept it as adeguate to support [the Commissioner's]
conclusion.'" Irlanda Ortiz, 955 F.2d at 769 (guoting Rodriguez
v. Sec'y of HHS, 647 F.2d 218, 222 (1st Cir. 1981)); see also,
Tsarelka v. Sec'y of HHS, 842 F.2d 529, 535 (1st Cir. 1988)
("[W]e must uphold the [Commissioner's] conclusion, even if the
record arguably could justify a different conclusion, so long as
it is supported by substantial evidence.").
The ALJ's findings of fact are not conclusive, however, if
they are "derived by ignoring evidence, misapplying the law, or
judging matters entrusted to experts." Nguyen v. Chater, 172
F.3d 31, 35 (1st Cir. 1999) (citations omitted). If the
Commissioner has misapplied the law or has failed to provide a
fair hearing, deference to the Commissioner's decision is not
5 appropriate, and remand for further development of the record may
be necessary. See Carroll v. Sec'y of HHS, 705 F.2d 638, 644 (2d
Cir. 1983); see also, Slessinqer v. Sec'y of HHS, 835 F.2d 937,
939 (1st Cir. 1987) ("The [Commissioner's] conclusions of law are
reviewable by this court.").
B. Parties' Respective Burdens
An individual seeking Social Security disability benefits is
disabled within the meaning of the Act if he or she is unable "to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can
reasonably be expected to last for a continuous period of not
less than 12 months." 42 U.S.C. § 416(1)(1)(A). See also 42
U.S.C. § 1382c(a)(3). The claimant has the initial burden to
establish the existence of a disabling impairment. See Bowen v.
Yuckert, 482 U.S. 137, 146-47 (1987); Santiago v. Sec'y of HHS,
944 F.2d 1, 5 (1st Cir. 1991). To satisfy that burden, the
claimant must prove that her impairment prevents her from
performing her previous type of work. See Gray v. Heckler, 7 60
F.2d 369, 371 (1st Cir. 1985) (citing Goodermote v. Sec'y of HHS,
690 F .2d 5, 7 (1st Cir. 1982)).
6 In assessing a disability claim, the Commissioner considers
objective and subjective factors, including: (1) objective
medical facts; (2) the claimant's subjective assertions of pain
and disability, as supported by the testimony of the claimant and
other witnesses; and (3) the claimant's educational background,
age, and work experience. Mandziej v. Chater, 944 F. Supp. 121,
129 (D.N.H. 1996) (citing Avery v. Sec'y of HHS, 797 F.2d 19, 23
(1st Cir. 1986)). As in this case, the Commissioner applies a
five-step seguential evaluation process to determine whether a
claimant is disabled. Where a claimant has shown an inability to
perform her previous work, the burden shifts to the Commissioner
to show that there are other jobs in the national economy that
she can perform. See Vazguez v. Sec'y of HHS, 683 F.2d 1, 2 (1st
Cir. 1982). If the Commissioner shows that considering the
claimant's age, education, work experience, and impairment there
are jobs that the claimant can perform, the overall burden to
demonstrate disability remains with the claimant. Hernandez v.
Weinberger, 493 F.2d 1120, 1123 (1st Cir. 1974); Benko v.
Schweiker, 551 F. Supp. 698, 701 (D.N.H. 1982).
I review the claimant's challenge to the Commissioner's
determination with these principles in mind.
7 III. DISCUSSION
A. Did the ALJ Err in Failing to Consider Evidence _____ also Considered in Nickerson's Prior Applications?
Nickerson first argues that ALJ Klingebiel erred in
assessing his residual functional capacity. He claims that the
error lies in the ALJ's refusal to consider the findings and
opinions of Drs. Robert Thies, Jonathan Sobel, and William
Davison. I agree with Nickerson that the ALJ's refusal was in
error. I therefore remand this case to the ALJ with instructions
to include any evidence of disability that these witnesses
provided.
Drs. Theis, Sobel, and Davison all treated Nickerson prior
to April 26, 1995, the date upon which ALJ Kleinfeld issued her
opinion regarding Nickerson's first disability insurance benefits
application. Deeming the findings with respect to Nickerson's
status final and therefore protected by res judicata, ALJ
Klingebield limited the scope of his inguiry to Nickerson's
status between April 26, 1995 and March 17, 1998, the date upon
which his insurance status expired. Tr. 16; see also Tr. 17-18
(stating that "the only medical evidence of treatment for a back
problem existing in the record after April 26, 1995 are Veteran's Administration hospital notes dated August 1996"). Apparently,
the ALJ believed that the principle of res judicata prevented him
from considering evidence of Nickerson's status prior to that
date, particularly evidence that was part of the record in a
prior application.
The Commissioner cites two cases in support of this view:
Torres v. Secretary of Health & Human Servs., 854 F.2d 1136, 1137
(1st Cir. 1998), and Passopulos v. Sullivan, 976 F.2d 642, 645-48
(11th Cir. 1992). She claims that these cases stand for the
proposition that an ALJ, applying res judicata, may refuse to
consider any and all evidence included in the claimant's earlier
application after a final decision on the merits of that
application has been rendered. See Def.'s Mot. at 4 (Doc. No.
7). I disagree.
As an initial matter, neither case should be interpreted as
broadly as the Commissioner claims. Torres states only that res
judicata applies to bar the reexamination of evidence where "the
current claim has the same factual basis as the earlier claim."
845 F.2d at 1138. In this case, the current claim at issue has a
different factual basis. Here, the date of onset is alleged to
be July 1, 1992. In the prior application, the date of onset is alleged to have been April 22, 1992. Likewise, here, the period
under review is April 26, 1995 to March 31, 1997. At issue in
the prior application, on the other hand, was Nickerson's status
during an earlier period of time. The factual basis for each
claim, as well as the issues addressed, are therefore distinct.
As a result, Torres does not apply.
The same is true with respect to Passopoulus. Indeed, far
from restricting an ALJ's discretion, Passopoulus, at the very
least, preserves it. It affirms that an ALJ has the power to
reexamine evidence presented in prior applications when new
issues bearing on the prior application arise. See 976 F.2d at
646 (holding that res judicata does not apply, and that an ALJ
may consider evidence presented in a prior application, where
newly applicable regulations reguire that the application be
reconsidered). Therefore, it does not, as defendant argues,
restrict an ALJ's ability to examine facts from a prior
application that bear on new and different issues raised in a
subseguent application. In fact, it appears to do the very
opposite. It vests the ALJ with authority to do so.
The guestion that remains, then, is whether there is any
other reason why res judicata should bar an ALJ from considering
10 evidence produced at a prior proceeding in a subsequent
proceeding that addresses a different claim. I hold that there
is not. Res judicata bars the re-litigation of an identical
claim by identical parties once a final decision has been
rendered on that claim. See Breneman v. United States ex rel.
FAA, 381 F.3d 33, 38 (1st Cir. 2004). To be identical, a
successor claim must arise out of the same "transaction or
occurrence" as its predecessor. Id. Such is not the case here.
Though the ALJ has rendered a decision on a past application,
that decision was with respect to Nickerson's status prior to
April 26, 1995. The current application relies on an augmented
set of facts and seeks the same determination, but for a period
beginning on that date. It therefore presents a new claim
arising out of a different set of transactions and occurrences.
Res judicata thus may not be used to bar review of evidence
generated prior to April 26, 1995, including the testimony of
Drs. Theis, Sobel, and Davison.
The ALJ did not rely on the related doctrine of collateral
estoppel. Unlike res judicata, collateral estoppel precludes the
re-litigation of individual issues, not claims. See Parklane
11 Hosiery Co. v. Shore, 439 U.S. 322, 327 (1979). The Commissioner
has failed, however, to demonstrate that any issues would be re
litigated were the ALJ to consider the testimony of Drs. Thies,
Sobel and Davison. This testimony waspresented to prove that
Nickerson was disabled prior to April 26, 1995. The ALJ credited
it in full, Tr. 297-99, and still held that Nickerson was not
disabled. Her ruling, however, was confined to a period prior to
April 26. Nickerson now offers the same evidence, but for a
different purpose. He offers it to demonstrate the full extent
to which his condition has deteriorated since the ALJ rendered
her initial decision. See Pl.'s Mot. to Rev. Comm, at 10 (Doc.
No. 6). Offering old testimony for a new purpose is not barred
by collateral estoppel.
The Commissioner offers no other reason why evidence of
Nickerson's status prior to April 26, 1995 should not have been
heard. As evidence of Nickerson's cumulative experience, and
specifically of the degree to which his health has deteriorated
over the year, it is relevant to adetermination of Nickerson's
status after April 26, 1995. Thus, on remand, I instruct the
Commissioner to consider it in evaluating Nickerson's
application.
12 B. Did the ALJ Err in its Assessment of Nickerson's Mental Status?
Nickerson next argues that ALJ Klingebiel erred in assessing
the scope of his mental limitations. The ALJ's most egregious
mistake, he claims, is its failure to properly credit the
testimony of Dr. Hani Khouzam. Dr. Khouzam concluded that
Nickerson had a Global Assessment of Function ("GAF") of 352 and
that he was conseguently unable to maintain full-time employment.
Pl.'s Mot. to Rev. Comm, at 11 (Doc. No. 6) .
While Nickerson is correct that it is improper for an ALJ to
ignore evidence, he has not shown that the ALJ did so here.
Indeed, Dr. Khouzam's assertions are specifically cited in ALJ
Klingebiel's findings. Tr. 606. Dr. Khouzam was not the last
word on the issue, however. The Manchester Compensation and
Pension Board diagnosed Nickerson with a GAF of 60. Tr. 532.
This score indicates moderate social and occupational
functioning. See Def.'s Mem. of Law at 11 (Doc. No. 7) (citing
American Psychiatric Ass'n, Diagnostic Statistical Manual of
2 The Global Assessment of Functioning Scale ranges from 100 (superior functioning) to 1 (persistent danger of severely hurting self or others, or unable to care for herself). American Psychiatric Ass'n, Diagnostic Statistical Manual of Mental Disorders, 32 (4th ed. 1994) .
13 Mental Disorders, 32 (4th ed. 1994)).
That the ALJ did not give Dr. Khouzam's testimony conclusive
authority does not constitute reversible error. Indeed, it is
within the purview of the ALJ to weigh evidence and make
credibility determinations. See Irlanda Ortiz, 955 F.2d at 769.
The ALJ did so here and concluded the case in the Commissioner's
favor. Though there is much in the record to suggest that
Nickerson is severely limited in the choice of occupations
available to him,3 it is not the court's function to disturb
conclusions drawn by the ALJ if substantial evidence supports
those conclusions. See Tsarelka, 842 F.2d at 535.
The guestion, then, is whether substantial evidence supports
the ALJ's conclusion. I find that it does. Included in his
evaluation was the Manchester Board's assessment, as well as a
determination by a state agency psychologist that there was
insufficient medical evidence to conclude that Nickerson suffered
from a mental impairment. Tr. 508. These diagnoses constitute
3 This fact was not ignored by the ALJ. Indeed, based on evidence of Nickerson's mental and emotional instability, the ALJ limited the descriptive scope of potential occupations to "low stress jobs." See Tr. 609. Excluded from this category were jobs that reguired him to wait on the public or those that involved fast-paced assembly. Id.
14 substantial evidence. To draw a different conclusion would
require the court to weigh evidence and make credibility
judgments. As noted, in the context of Social Security cases,
that is not this court's function. I thus find that the ALJ did
not err in its overall assessment of Nickerson's mental status.
C. Did the Hypothetical Question posed by the ALJ to the Vocational Expert Properly Reflect his Assessment of _____ Nickerson's Capacity to Work?
Finally, Nickerson's asserts that the ALJ improperly shaped
the vocational expert's scope of inquiry by asking the vocational
expert to answer an erroneous hypothetical question. First,
Nickerson argues that the ALJ should have required the vocational
expert to limit his inquiry to "low stress jobs." Next, he
argues that in shaping the hypothetical question, the ALJ ignored
evidence prior to April 26, 1995.
As to his first assertion, "stress is not a characteristic
of a job, but instead reflects an individual's subjective
response to a particular situation." Lancellotta v. Sec'y of
HHS, 806 F.2d 284, 285 (1st Cir. 1986). Therefore, the
articulation of a threshold stress level could only provide
minimal, if any, guidance. Id. The failure to instruct the
vocational expert to search only for low stress jobs in the
15 national economy was therefore not in error. Cf. Renfro v.
Barnhart, 20 Fed. Appx. 431, 437 (6th Cir. 2002) (holding that
the ALJ did not act improperly by failing to instruct the
vocational expert to look only for "low stress jobs," and further
holding that it acted properly by instructing the vocational
expert to search for jobs with concrete limitations such as those
that reguired only "slow-paced" work and "minimal public
interaction").
As to Nickerson's second claim, however, I conclude that the
ALJ has erred. Consistent with the discussion above, in shaping
its hypothetical guestion on remand, it must take into
consideration evidence of Nickerson's status prior to April 26,
1995. Its failure to do so here constitutes error.
IV. CONCLUSION
In light of the foregoing analysis, the plaintiff's motion
to reverse and remand (Doc. No. 6) is granted in part and denied
in part. Likewise, the Commissioner's motion to affirm (Doc. No.
7) is granted in part and denied in part. Because this is a
16 sentence four remand, the clerk of court shall enter judgment
accordingly and close the case.
SO ORDERED.
Paul Barbadoro United States District Judge
February 24, 2005
cc: Raymond J. Kelly, Esg. David L. Broderick, Esg.