United States District Court, D. Kansas
MEMORANDUM AND ORDER
Crow, U.S. District Senior Judge.
an action reviewing the final decision of the Commissioner of
Social Security denying the plaintiff disability insurance
benefits and supplemental security income payments. The
matter has been fully briefed by the parties.
General legal standards
court's standard of review is set forth in 42 U.S.C.
§ 405(g), which provides that "the findings of the
Commissioner as to any fact, if supported by substantial
evidence, shall be conclusive." The court should review
the Commissioner's decision to determine only whether the
decision was supported by substantial evidence and whether
the Commissioner applied the correct legal standards.
Glenn v. Shalala, 21 F.3d 983, 984 (10th Cir. 1994).
Substantial evidence requires more than a scintilla, but less
than a preponderance, and is satisfied by such evidence that
a reasonable mind might accept to support the conclusion. The
determination of whether substantial evidence supports the
Commissioner's decision is not simply a quantitative
exercise, for evidence is not substantial if it is
overwhelmed by other evidence or if it really constitutes
mere conclusion. Ray v. Bowen, 865 F.2d 222, 224
(10th Cir. 1989). Although the court is not to reweigh the
evidence, the findings of the Commissioner will not be
mechanically accepted. Nor will the findings be affirmed by
isolating facts and labeling them substantial evidence, as
the court must scrutinize the entire record in determining
whether the Commissioner's conclusions are rational.
Graham v. Sullivan, 794 F.Supp. 1045, 1047 (D. Kan.
1992). The court should examine the record as a whole,
including whatever in the record fairly detracts from the
weight of the Commissioner's decision and, on that basis,
determine if the substantiality of the evidence test has been
met. Glenn, 21 F.3d at 984.
Social Security Act provides that an individual shall be
determined to be under a disability only if the claimant can
establish that they have a physical or mental impairment
expected to result in death or last for a continuous period
of twelve months which prevents the claimant from engaging in
substantial gainful activity (SGA). The claimant's
physical or mental impairment or impairments must be of such
severity that they are not only unable to perform their
previous work but cannot, considering their age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy. 42 U.S.C.
Commissioner has established a five-step sequential
evaluation process to determine disability. If at any step a
finding of disability or non-disability can be made, the
Commissioner will not review the claim further. At step one,
the agency will find non-disability unless the claimant can
show that he or she is not working at a “substantial
gainful activity.” At step two, the agency will find
non-disability unless the claimant shows that he or she has a
“severe impairment, ” which is defined as any
“impairment or combination of impairments which
significantly limits [the claimant's] physical or mental
ability to do basic work activities.” At step three,
the agency determines whether the impairment which enabled
the claimant to survive step two is on the list of
impairments presumed severe enough to render one disabled. If
the claimant's impairment does not meet or equal a listed
impairment, the inquiry proceeds to step four, at which the
agency assesses whether the claimant can do his or her
previous work; unless the claimant shows that he or she
cannot perform their previous work, they are determined not
to be disabled. If the claimant survives step four, the fifth
and final step requires the agency to consider vocational
factors (the claimant's age, education, and past work
experience) and to determine whether the claimant is capable
of performing other jobs existing in significant numbers in
the national economy. Barnhart v. Thomas, 124 S.Ct.
376, 379-380 (2003).
claimant bears the burden of proof through step four of the
analysis. Nielson v. Sullivan, 992 F.2d 1118, 1120
(10thCir. 1993). At step five, the burden shifts
to the Commissioner to show that the claimant can perform
other work that exists in the national economy.
Nielson, 992 F.2d at 1120; Thompson v.
Sullivan, 987 F.2d 1482, 1487 (10th Cir.
1993). The Commissioner meets this burden if the decision is
supported by substantial evidence. Thompson, 987
F.2d at 1487.
going from step three to step four, the agency will assess
the claimant's residual functional capacity (RFC). This
RFC assessment is used to evaluate the claim at both step
four and step five. 20 C.F.R. §§ 404.1520(a)(4),
404.1520(e, f, g); 416.920(a)(4), 416.920(e, f, g).
History of case
April 28, 2015, administrative law judge (ALJ) Michael
Comisky issued his decision (R. at 18-32). Plaintiff alleged
that he has been disabled since October 24, 1990 (R. at 18).
Plaintiff was found to be disabled on May 28, 1991.
Plaintiff's disability was determined to continue on June
18, 1999 (R. at 18).
January 25, 2013, defendant notified the plaintiff that it
had been determined that his condition was not severe enough
to have been considered disabling and the previous
determination that he was disabled was being changed.
Plaintiff appealed this decision, and the case was heard by
the above-listed ALJ (R. at 18). The ALJ issued his decision
on April 28, 2015 (R. at 32).
is insured for disability insurance benefits through March
31, 2016 (R. at 21). At step one, the ALJ found that
plaintiff has not engaged in substantial gainful activity
since the alleged onset date (R. at 21). At step two, the ALJ
found that plaintiff has severe impairments (R. at 21). At
step three, the ALJ determined that plaintiff's
impairments do not meet or equal a listed impairment (R. at
22). After determining plaintiff's RFC (R. at 23-24), the
ALJ found at step four that plaintiff is unable to perform
any past relevant work (R. at 29). At step five, the ALJ
found that plaintiff could perform other jobs that exist in
significant numbers in the national economy (R. at 30).
Reopening of the prior allowance dated May 28, 1991 was found
to be supported by fraud having been committed in this case
(R. at 31). Therefore, the ALJ concluded that plaintiff was
not disabled (R. at 31-32).
Appeals Council reviewed the ALJ decision, and issued its own
decision on November 22, 2016 (R. at 6). The Appeals Council
did not agree with the ALJ that fraud was committed. Rather,
the Appeals Council found that plaintiff committed acts of
“similar fault” (R. at 6F-6H). The Appeals
Council found that plaintiff's date last insured was
September 30, 1993 (R. at 6I, n.2). At step one, the Appeals
Council found that plaintiff engaged in substantial gainful
activity beginning on June 16, 2008. At step two, the Appeals
Council found that plaintiff had severe impairments, and at
step three found that plaintiff's impairments do not meet
or equal a listed impairment. After determining
plaintiff's RFC, the Appeals Council found at step four
that plaintiff is unable to perform past relevant work (R. at
6I). At step five, the Appeals Council found that plaintiff
could perform other work that exists in significant numbers
in the national economy. Therefore, the Appeals Council
concluded that plaintiff was not disabled based on his
application of September 12, 1990 (R. at 6J).
Did the Appeals Council err in its decision that the
disability determination of May 28, 1991 should be reopened
because it was obtained by similar fault?
decision that a claimant is disabled may be reopened at any
time if it was obtained by fraud or similar fault. 20 C.F.R.
§§ 404.988(c)(1); 416.1488(c). Similar fault is
defined as an: (1) incorrect or incomplete statement that is
material to the determination is knowingly made; or (2)
information that is material to the determination is
knowingly concealed. 42 U.S.C. § 405(u)(2); SSR 16-1p,
2016 WL 1029284 at *3; SSR 16-2p, 2016 WL 1029285 at *3.
Material is defined as a statement or information, or an
omission from a statement or information that could influence
the agency in determining entitlement to benefits. Knowingly
describes a person's awareness or understanding regarding
the correctness or completeness of the information he or she
provides, or the materiality of the information he or she
conceals from the agency. SSR 16-1p, 2016 WL 1029284 at *4;
SSR 16-2p, 2016 WL 1029285 at *4.
Commissioner shall disregard any evidence if there is reason
to believe that fraud or similar fault was involved in the
providing of such evidence. 42 U.S.C. § 405(u)(1)(B).
If, after redetermining entitlement to or eligibility for
benefits, the agency determines that without the disregarded
evidence, the evidence does not support entitlement or
eligibility, the agency may terminate such entitlement or
eligibility and may treat benefits paid based on such
evidence as overpayment. SSR 16-2p, 2016 WL 1029285 at *2;
see 42 U.S.C. § 405(u)(3).
argues that reopening of the determination that plaintiff was
disabled in 1991 is precluded on the basis of res judicata.
Plaintiff notes that on June 18, 1999, the Commissioner
informed the plaintiff that it had recently reviewed the
evidence in his disability claim and had determined that his
disability was continuing (R. at 98). Plaintiff contends that
this decision to continue disability benefits precludes
reopening of the 1991 disability determination (Doc. 14 at
judicata applies in the social security context when there
has been a previous determination or decision about the
claimant's rights on the same facts and on the same issue
or issues, and this previous determination has become final
by either administrative or judicial action. Poppa v.
Astrue, 569 F.3d 1167, 1170 (10th Cir. 2009);
20 C.F.R. §§ 404.957(c)(1), 416.1457(c)(1).
as noted above, a decision that a claimant is disabled
“may be reopened at any time if it was obtained by
fraud or similar fault.” Good cause for reopening
exists if new and material evidence is furnished. 20 C.F.R.
§ 404.989(a)(1). The Commissioner alleges that new and
material evidence which was not available in 1999 justified
reopening this case. Thus, this case can be distinguished from
the case of Hulett v. Chater, 1997 WL 8026 at *2
(10th Cir. Jan. 10, 1996), in which the Secretary
did not allege the existence of any new indices of fraud that
she currently possessed which were unavailable when the
Secretary made the prior continuation determinations.
court will next address the evidence regarding whether the
disability determination in 1991 was obtained by similar
fault. Defendant had made an initial determination that
plaintiff was not disabled on March 15, 1991 (R. at 33). This
had followed psychological evaluations of November 15, 1990
by Dr. Vandenberg (R. at 196-197), and by Dr. Day on February
12, 1991 (R. at 203-205). A psychological assessment on March
12, 1991, which reviewed the above evaluations, found that
plaintiff had only a slight degree of limitation in 3
functional areas (R. at 213), and a mental RFC assessment of
that same date showed moderate limitations in only 3 out of
20 categories (R. at 215-216).
15, 1991, another psychological evaluation was performed by
Dr. FitzGerald. He performed a Wechsler Adult Intelligence
(IQ) test, a Benton Visual Retention Test, and a Wechsler
Memory Scale test on plaintiff. The IQ test showed a verbal
IQ of 60, a performance IQ of 51 and full scale IQ of 52. On
the Wechsler/IQ test, Dr. FitzGerald noted that
plaintiff's performance subscales were affected by time
and an inability to comprehend task requirements. The Benton
test was marked by omissions, perseverations, and size errors
and was moderately suggestive of organic impairment. The
results of the memory scale were inconclusive. Plaintiff was
unable or unwilling to complete the subtests and responded
repeatedly “I don't know, ” or
“don't remember that.” Dr. FitzGerald
concluded that plaintiff was mentally retarded (R. at
28, 1991, defendant concluded that plaintiff was disabled as
of October 24, 1990 because of mental retardation; plaintiff
was found to meet listed impairment 12.05B. Dr.
FitzGerald's report was cited as the basis for deciding
plaintiff's claim (R. at 34, 104-105, 224).
submitted to a more recent psychological assessment on
November 13, 2012 with Dr. Neufeld (R. at 311-315). Dr.