Sharon Earley v. Comm'r of Soc. Sec.Sharon Earley v. Comm'r of Soc. Sec.
Appeal from the United States District Court for the Southern District of Ohio at Dayton.
No. 3:15-cv-00166—Sharon L. Ovington, Magistrate Judge.
Before: BOGGS, SILER, and SUTTON, Circuit Judges.
COUNSEL
ARGUED: Weili J. Shaw, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Michael A. Rake, HORENSTEIN, NICHOLSON & BLUMENTHAL, LPA, Dayton, Ohio, for Appellee. ON BRIEF: Weili J. Shaw, Alisa B. Klein, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellant. Michael A. Rake, HORENSTEIN, NICHOLSON & BLUMENTHAL, LPA, Dayton, Ohio, for Appellee.
SUTTON, Circuit Judge. In 2010, Sharon Earley applied for disability benefits. In 2012, an administrative law judge rejected the application on the ground that Earley did not have a covered disability. She applied again for a new period of time. The same administrative law judge denied her benefits, in part because he thought that one of our cases, Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997), required him to give preclusive effect to the work-capacity finding he had made during the first proceeding absent “new and material evidence documenting a significant change in the claimant‘s condition.” A.R. 30. The district court reversed, concluding that the “principles of res judicata” announced in Drummond apply only when they favor an individual applicant, not the government, in a subsequent proceeding.
I.
Sharon Earley applied for disability benefits starting on June 25, 2010. Administrative Law Judge David Redmond considered the application. He found that she suffered from a host of physical and mental impairments, including fibromyalgia, mild carpal tunnel syndrome, panic disorder, degenerative disk disease, and major depression. Even so, he found that she remained capable of holding jobs that demanded only light physical exertion and denied the application for the period between June 25, 2010 and May 15, 2012.
Earley applied again in July 2012, arguing that she became disabled after the decision on her last application. The application went to Judge Redmond again. Invoking Drummond, he thought he was precluded from revisiting his earlier finding that Earley was not disabled unless she offered new and material evidence of a changed condition. See SSAR 98-4(6), 63 Fed. Reg. 29,771, 29,773 (June 1, 1998). Because Earley failed to do that, he denied her benefits on September 18, 2014.
A magistrate judge, hearing the case by the consent of the parties, reversed. She construed Drummond to apply in just one direction—if it leads to a favorable outcome for the applicant but not if it leads to an unfavorable outcome for the applicant. So configured, the case did not apply here, she ruled, as any preclusive effect of the prior ALJ finding would make it more difficult for Earley to receive a disability rating and the benefits that accompany it. In this instance, she found the evidence in favor of a disability finding so strong that she ordered the agency to award benefits to Earley immediately.
II.
The Social Security Administration pays benefits to people who have become disabled. See
A “five-step sequential evaluation process” guides efforts to implement these two requirements.
All of this does not prevent an individual from applying for benefits again. See
The administrative law judge, David Redmond, started down this road and held to it—for a time. Earley applied for benefits in 2010. In 2012, Judge Redmond marched through the five-step analysis, found her capable of light work, and decided she was not disabled because a sufficient number of light-work jobs were available to her.
In 2012, Earley filed a new application for benefits, seeking benefits for a new period, namely from May 16, 2012 forward. Judge Redmond reviewed her case again. Instead of asking whether the evidence supported Earley‘s new application, Judge Redmond thought he was precluded by the first ruling. In his view, he was “bound by the findings of [the] previous Administrative Law Judge” because Sixth Circuit case law gave those findings “preclusive effect.” A.R. at 22.
That is not how it works. An individual may file a second application—for a new period of time—for all manner of reasons and obtain independent review of it so long as the claimant presents evidence of a change in condition or satisfies a new regulatory threshold.
In Judge Redmond‘s defense, we must acknowledge, some language in Drummond supports his approach. In that case, an administrative law judge denied the application of a forty-nine-year-old applicant who was capable of “sedentary” work. Drummond, 126 F.3d at 838. After receiving that decision, Drummond filed a second application for a new period of time. Because she had turned fifty by the relevant time of the second application, the administrative law judge found her to be a “person approaching advanced age” under the relevant regulation.
That was too much for our court to accept. “When the Commissioner has made a final decision concerning a claimant‘s entitlement to benefits,” we said, “the Commissioner is bound by this determination absent changed circumstances.”
Unusual facts, it seems to us, led to some overstatement in Drummond but not to an incorrect outcome. Drummond correctly held that substantial evidence did not support the ALJ‘s decision. And Drummond correctly held that res judicata may apply to administrative proceedings. United States v. Utah Constr. & Mining Co., 384 U.S. 394, 422 (1966). If an individual, say, files a second application for the same period of time finally rejected by the first application and offers no cognizable explanation for revisiting the first decision, res judicata would bar the second application. And res judicata would apply in both directions: to bar the government and individuals from relitigating a past final decision for no reason other than to take a second bite at the same apple. See
But res judicata does not apply in today‘s case. “Res judicata bars attempts to relitigate the same claim, but a claim that one became disabled in 1990 is not the same as a claim that one became disabled in 1994.” Groves v. Apfel, 148 F.3d 809, 810 (7th Cir. 1998). Just so here. Had Earley filed a second application for disability benefits for June 25, 2010 to May 15, 2012, the same period covered by her first application, the ALJ could have correctly rejected it on res judicata grounds and the principles of finality that it supports. But Earley did not do that. She filed a new application for a new period of time. When an individual seeks disability benefits for a distinct period of time, each application is entitled to review. There is nothing in the relevant statutes to the contrary. And res judicata only “foreclose[s] successive litigation of the very same claim.” New Hampshire v. Maine, 532 U.S. 742, 748 (2001).
While we are at it, we should point out that issue preclusion, sometimes called collateral estoppel, rarely would apply in this setting. That doctrine “foreclos[es] successive litigation of an issue of fact or law actually litigated and resolved.” Id. at 748-49. But human health is rarely static. Sure as we‘re born, we age. Sometimes we become sick and sometimes we become better as time passes. Any earlier proceeding that found or rejected the onset of a disability could rarely, if ever, have “actually litigated and resolved” whether a person was disabled at some later date.
All of this helps to explain why Drummond referred to “principles of res judicata“—with an accent on the word “principles.” 126 F.3d at 841-43. What are those principles? Finality, efficiency, and the consistent treatment of like cases. An administrative law judge honors those principles by considering what an earlier judge found with respect to a later application and by considering that earlier record.
At the same time, an applicant remains free to bring a second application that introduces no new evidence or very little new evidence after a failed application. But she should not have high expectations about success if the second filing mimics the first one and the individual has not reached any new age (or other) threshold to obtain benefits. What‘s past likely will
Cementing our conclusion is a defect that arises from a broad reading of Drummond—a defect that would do far more harm than good for social security applicants. Drummond involved a black swan—the unusual situation in which the individual wanted the administrative law judge to make the same finding on one issue that he had made in a prior ruling. Most applicants reapply only because the Administration found them not to be disabled. Just ask Sharon Earley. All applicants in that setting want the next administrative law judge to examine the new record and make a new, more favorable finding. See Albright, 174 F.3d at 476-77. But if res judicata applied here, it would prevent the Commissioner and the individual from seeking fresh review of a new application for a new period of time. Some of our unpublished decisions seem to have done just that, to the misfortune of the individual seeking disability benefits for a new period of time. See, e.g., Lester v. Soc. Sec. Admin., 596 F. App‘x 387, 389 (6th Cir. 2015) (per curiam); Haun v. Comm‘r of Soc. Sec., 107 F. App‘x 462, 464 (6th Cir. 2004). No such requirement exists.
This approach, as we see it, accords in the main with the approach taken by our sister circuits. See Albright, 174 F.3d at 473; Groves, 148 F.3d at 810; Buckley v. Heckler, 739 F.2d 1047, 1048-49 (5th Cir. 1984). In fact, one of them faced a problem almost identical to the one we face—the need to correct an overreading of a prior decision with respect to this precise issue. In Lively v. Secretary of Health & Human Services, 820 F.2d 1391 (4th Cir. 1987), the Fourth Circuit confronted a similar set of facts to those we addressed in Drummond. 820 F.2d 1391, 1391-92 (4th Cir. 1987). The court referred to the “principles of res judicata” and the “principles of finality and fundamental fairness” before holding for the applicant. Id. at 1392. In fact, our Drummond opinion cited Lively several times. See Drummond, 126 F.3d at 840-42. But the Fourth Circuit later clarified that, “[a]t its essence, Lively really has very little to do with preclusion.” Albright, 174 F.3d at 477. Instead, it was “best understood as a practical illustration of the substantial evidence rule” in which the prior factual finding was “such an important and probative fact as to render the subsequent finding to the contrary unsupported by substantial evidence.” Id. at 477-78. Albright is to Lively what this case is to Drummond.
The Administration asks us to go further. In reviewing a second application by the same individual, it thinks the administrative law judge should completely ignore earlier findings and applications. But it overstates the difference between our standard and the standard in other circuits. Fresh review is not blind review. A later administrative law judge may consider what an earlier judge did if for no other reason than to strive for consistent decision making. That‘s why we strongly suspect that the other circuits would reach the same outcome as our court did in Drummond and the Fourth Circuit did in Lively and why our current description of the standard is no different in the main from what any other circuit is doing today.
All roads in the end lead to this destination: The ALJ should have another opportunity to review the application under the correct standard. See SEC v. Chenery Corp., 318 U.S. 80, 87, 93-95 (1943). In the interim, Earley asks us to enter an award of immediate benefits. But such a ruling “is proper only where the proof of disability is overwhelming or where the proof of disability
For these reasons, we reverse the district court and remand with instructions to send the case to the Administration to reconsider Earley‘s application for benefits.