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

(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,

(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.

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.

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

;

.

3 ALJ concluded that Nickerson was able to function proficiently in

the job market.

As a result, the ALJ concluded that

Nickerson was not disabled within the meaning of the Act, and

denied him benefits.

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

(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,

(1st Cir. 1991). The Commissioner is

responsible for making credibility determinations, drawing

inferences from the evidence, and resolving evidentiary conflict.

Irlanda Ortiz,

; Frustaglia v. Sec'y of HHS,

(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,

(guoting Rodriguez

v. Sec'y of HHS,

(1st Cir. 1981)); see also,

Tsarelka v. Sec'y of HHS,

(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,

(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,

(2d

Cir. 1983); see also, Slessinqer v. Sec'y of HHS,

(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."

(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,

(1987); Santiago v. Sec'y of HHS,

(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

(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,

(D.N.H. 1996) (citing Avery v. Sec'y of HHS,

(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,

(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,

(1st Cir. 1974); Benko v.

Schweiker,

(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.,

(1st Cir. 1998), and Passopulos v. Sullivan,

(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

(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,

(1st Cir. 2004). To be identical, a

successor claim must arise out of the same "transaction or

occurrence" as its predecessor.

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,

(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,

.

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,

.

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.

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,

(1st Cir. 1986). Therefore, the

articulation of a threshold stress level could only provide

minimal, if any, guidance.

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,

(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.

17