Bogle v. Sullivan

• Citation: 998 F.2d 342
• Decision Date: 06 July 1993
• Docket Number: No. 92-6034,92-6034
• Parties: , Unempl.Ins.Rep. (CCH) P 17410A Otis W. BOGLE, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 342

998 F.2d 342

41 Soc.Sec.Rep.Ser. 495, Unempl.Ins.Rep. (CCH) P 17410A

Otis W. BOGLE, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.

No. 92-6034.

United States Court of Appeals Sixth Circuit.

Argued May 6, 1993.

Decided July 6, 1993.

D.C. Daniel, Jr. (argued and briefed), Daniel, Burton & Thomas, Murfreesboro, TN, for plaintiff-appellant.

Michael L. Roden, Asst. U.S. Atty., Ernest W. Williams, U.S. Atty., Nashville, TN, Susan Kelm Story (argued and briefed), Mack A. Davis, Bruce Granger, Mary Ann Sloan, Holly A. Grimes, Dept. of Health and Human Services, Office of Gen. Counsel, Atlanta, GA, for defendant-appellee.

Before: KENNEDY and SILER, Circuit Judges, and CONTIE, Senior Circuit Judge.

CONTIE, Senior Circuit Judge.

Plaintiff-appellant, Otis W. Bogle, appeals the decision of the district court affirming the decision of defendant-appellee, the Secretary of Health and Human Services, not to reopen a 1981 claim for social security disability benefits, and affirming the Secretary's denial of 1983 and 1987 claims for social security disability benefits. For the following reasons, we affirm.

I.

Plaintiff has filed applications for social security benefits three times. The first was in November 1981, the second on July 12, 1983, and the third on July 27, 1987. The first claim was denied at all levels before the Secretary and plaintiff did not file an appeal of the district court's decision to affirm the Secretary to this court. The second application was denied at all levels and plaintiff's appeal to this court was dismissed for late notice of appeal. 791 F.2d 931. The third application filed on July 27, 1987 went to the appeals council which indicated that perhaps plaintiff's prior applications for disability benefits could be reopened under the Samuels case and remanded the case to the administrative law judge (ALJ) to reconsider these applications.

The ALJ determined that the first application (1981) was not covered by the Samuels case, but the second (1983) application was. He therefore reconsidered the July 12, 1983 application, which alleged a disability onset date of December 23, 1980, and plaintiff's current application of July 27, 1987, which included a claim for supplemental security income benefits. The ALJ determined that plaintiff was not disabled as of December 23, 1980 due to a back impairment, but that he had become disabled as of January 18, 1989, when he had a heart attack.

After the appeals council denied an appeal and the decision became the final decision of the Secretary, plaintiff filed a complaint in the United States District Court for the Middle District of Tennessee. A magistrate issued a report and recommendation adopting the Secretary's position that plaintiff had become disabled only as of January 18, 1989. This opinion was adopted by the district court. Plaintiff has filed a timely appeal.

At the hearing on his most recent application for social security benefits, plaintiff was 54-years-old and had a 10th grade education, but later received a G.E.D. diploma. His past work consisted of ceiling insulator, custodian and school bus driver, assembly line worker, billboard worker, motel renovation painter, and motel furniture installer. Plaintiff last worked on December 22, 1980, when he was injured on the job while moving furniture. He underwent a lumbar laminectomy in October 1978 and reinjured his back in December 1980.

In July 1984, Dr. Snyder, plaintiff's treating physician, wrote a letter in support of plaintiff's claim of disability, stating that plaintiff was totally disabled due to his back impairment, but the Secretary rejected this finding of disability, finding that Dr. Snyder's opinion was conclusory in nature and conflicted with his own treatment notes and prior comments which indicated that although plaintiff could not perform his former work as a subcontractor, his condition did not prevent him from being able to perform all work. The Secretary noted that after 1984, plaintiff did not receive frequent medical treatment or follow-up care for his back. Between then and July 29, 1985, he visited a physician on only one occasion. Plaintiff returned to see Dr. Snyder on March 11, 1986, but did not seek any medical treatment for almost a year thereafter when he returned to see Dr. Snyder complaining of a small cyst on his left index finger. He did not return to see Dr. Snyder until after filing his third application for disability in July 1987. In regard to this application, Dr. Snyder conducted an examination in which plaintiff displayed a decreased range of motion of the back, but had negative straight leg raising and normal motor and sensory examinations. X-ray studies showed no disc space narrowing. Dr. Snyder completed an assessment stating that plaintiff could walk, stand, or sit for only one hour at a time and could not lift any weight comfortably. He stated that plaintiff had been permanently and totally disabled since December 1980.

In considering this assessment, the ALJ noted that Dr. Snyder had not started treating plaintiff until July 1981. The ALJ, when weighing the evidence of Dr. Snyder, determined that Dr. Snyder had previously shown a willingness to aid Mr. Bogle's claim for disability when his own treatment notes and documentary comments failed to support his conclusory opinion of disability. Dr. Snyder had formerly stated that plaintiff was not capable of performing the heavy lifting of his past work as a subcontractor, but could perform light work. Dr. Snyder contradicted this former assessment by stating that plaintiff had been totally disabled since 1980. The ALJ also found that the evidence of record in its entirety failed to support the comments made by Dr. Snyder in August 1987 regarding the alleged severity of plaintiff's limitations of function. The ALJ noted that plaintiff had had a heart attack while laying shingles on a roof, which belied Dr. Snyder's assessment of total disability. Plaintiff had suffered a heart attack on January 18, 1989, and in August 1989, Dr. Maciol opined that plaintiff was totally disabled due to his heart condition. The ALJ determined that plaintiff had been under a disability since January 18, 1989 when he had the heart attack.

Plaintiff challenges this disability onset date, contending that he has been disabled since December 23, 1980, and arguing that his 1981 application for social security benefits should have been reopened.

II.

We must first decide whether the district court erred in determining that it did not have jurisdiction to review the Secretary's decision not to reopen its final decision regarding plaintiff's first application of disability of November 1981.

Plaintiff contends that this court has jurisdiction to review the Secretary's decision not to reopen its decision to deny plaintiff's 1981 application for social security benefits, because plaintiff has presented a colorable constitutional claim which allows judicial review of this prior claim.

Although a claimant may seek to have a determination of the Secretary reopened, it is within the Secretary's discretion whether or not to reopen the case. In the present case, the ALJ did not choose to reopen plaintiff's first application for disability benefits filed in November 1981. Under Califano v. Sanders, 430 U.S. 99, 107-08, 97 S.Ct. 980, 985, 51 L.Ed.2d 192 (1977), when a prior decision is not reopened, this court has no jurisdiction to review the actions of the Secretary on the earlier claim in the absence of a colorable constitutional claim.

Plaintiff argues that he presents a colorable constitutional claim because he was denied procedural due process of the law under the Fifth Amendment when the Secretary applied incorrect law in deciding to deny plaintiff's 1981 application for social security benefits. This allegation does not rise to the level of a colorable constitutional claim. The standard applied by the ALJ was the one set out in the Secretary's regulations at the time he considered the case. At a later time, this standard was changed. Be this as it may, the standard applied by the ALJ when he issued his decision on October 22, 1982 was the appropriate standard to use at the time. The fact that the law may change following a final decision by the Secretary does not rise to the level of a colorable constitutional claim. ¹ Richardson v. Bowen, 807 F.2d 444, 446-47 (5th Cir.1987). Moreover, the Secretary's regulations provide that a change in the law is not good cause for reopening a prior decision. 20 C.F.R. § 404.989(b).

Also the Secretary may apply the doctrine of res judicata to bar an award of benefits for a period of disability for which a previous application for disability has previously been denied. Wills v. Secretary of Health and Human Services, 802 F.2d 870, 871 (6th Cir.1986). In the present case, the district court affirmed the Secretary's denial of benefits with regard to plaintiff's 1981 application and plaintiff did not pursue any further appeal to this court. Since there has been a previous determination of plaintiff's rights in regard to the 1981 application on the same facts and on the same issues, the ALJ properly applied the doctrine of res judicata in refusing to reopen the 1981 application. The district court is affirmed on this issue.

III.

We must next decide whether the district court erred in concluding that substantial evidence supports the Secretary's determination that plaintiff was not disabled prior to January 18, 1989. ²

This court has jurisdiction on appeal to review the Secretary's final decision regarding a denial of disability benefits pursuant to 42 U.S.C. § 405(g), which specifies that the Secretary's factual findings are conclusive if supported by substantial evidence. " 'Substantial evidence' means 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to...