Brewster v. Comm Social Security , 145 F. App'x 542 ( 2005 )

NOT RECOMMENDED FOR PUBLICATION
File Name: 05a0709n.06
Filed: August 16, 2005
No. 04-6168
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
SHIRLEY M. BREWSTER,
Plaintiff-Appellant,
v. ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
JO ANNE B. BARNHART, COMMISSIONER EASTERN DISTRICT OF TENNESSEE
OF SOCIAL SECURITY,
Defendant-Appellee.
/
BEFORE: CLAY, GILMAN, and COOK, Circuit Judges.
CLAY, Circuit Judge. In this appeal from the district court’s grant of summary judgment
to Defendant, Jo Anne B. Barnhart, Commissioner of Social Security (“the Commissioner”),
Plaintiff, Shirley M. Brewster (“Brewster”), challenges the denial of her application for Social
Security benefits, filed under the Social Security Act, 42 U.S.C. § 401 et seq. Specifically, Brewster
contends that the Administrative Law Judge (“ALJ”) who reviewed her case wrongly determined
that he was bound by a prior ALJ’s finding that Brewster’s past relevant work included work at a
light exertional level.
No. 04-6168
For the reasons that follow, we hold that the ALJ correctly determined that he was estopped
from reconsidering a prior finding on Brewster’s past relevant work, and we AFFIRM the district
court’s grant of summary judgment.
BACKGROUND
Brewster was born on November 25, 1943, and has a high school equivalency degree. The
record before this Court contains a great deal of documentation of various medical problems
Brewster has experienced; however, we will not summarize it here, inasmuch as that evidence is not
in dispute. Rather, the key and disputed issue in this case relates to Brewster’s past relevant work.
Brewster filed an application for Social Security disability benefits on October 8, 1997,
alleging disability since November 26, 1995. A hearing on that claim was conducted by
Administrative Law Judge (“ALJ”) Leonard Gajewski on September 17, 1998. Judge Gajewski
issued a decision unfavorable to Brewster on November 24, 1998, when Brewster was fifty-four
years old. Judge Gajewski found that Brewster “lacked the residual functional capacity to lift and
carry more than twenty pounds, or more than ten pounds on a regular basis, or perform tasks
requiring more than ‘frequent’ climbing, balancing, stooping, kneeling, crawling, and crouching.”
Judge Gajewski found that Brewster could not “perform tasks precluded by moderate difficulties in
maintaining social functioning,” concentration deficiencies limit her to “understanding,
remembering and carrying out simple, repetitive tasks,” and “she should avoid frequent interaction
with the general public.”
Judge Gajewski also found that “in her past work as an assembly line worker at the light
level, as performed by [Brewster] and as generally performed in the national economy, [Brewster]
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was not required to lift more than twenty pounds, interact with the public on a regular basis, or
perform tasks precluded by her nonexertional limitations.” Judge Gajewski noted that this was in
contrast to her prior jobs as a waitress and as an “assembler/machine operator,” which were at the
medium level. Judge Gajewski therefore concluded that Brewster’s impairments did not prevent her
from performing her past relevant work as an assembly line worker and that she was not disabled.
Brewster filed the benefits application at issue in the instant appeal on October 5, 2000,
alleging disability since November 25, 1998, the day after Judge Gajewski’s decision. That
application was denied initially and upon reconsideration. Brewster requested a hearing, which was
held before ALJ William Davis, in Knoxville, Tennessee, on July 3, 2001. Judge Davis issued an
unfavorable decision on March 22, 2002, and the Appeals Council declined review on September
13, 2002.
Judge Davis found that Brewster’s residual functional capacity through the relevant period
was as follows: “to perform lifting and carrying of 20 pounds occasionally and 10 pounds
frequently, and to sit or stand/walk each for 6 of 8 hours, provided she perform no more than
frequent postural activities, and no jobs requiring frequent contact with the general public or more
than simple, repetitive tasks.” These findings intentionally mirrored those of Judge Gajewski, as
Judge Davis noted that there was no evidence of an improvement or decline in Brewster’s functional
capacity since the prior ALJ’s determination. Brewster does not dispute Judge Davis’ findings
regarding her residual functional capacity.
More critical to this appeal was Judge Davis’ determination that “claimant’s past relevant
work as an assembly line worker did not require the performance of work-related activities
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precluded by her residual functional capacity” through the relevant period. Brewster challenges the
determination that her residual functional capacity allows her to perform any of her prior relevant
work. Brewster relies in part on what she describes as new vocational evidence developed by the
Commissioner in relation to the application at issue here. Specifically, she points to the report of
a vocational specialist submitted on March 28, 2001, which states that she could return to her past
relevant job as a “casket coverer,”1 but classifies that job at a medium exertional level. Judge Davis
specifically noted that report in his findings, but discounted the job classification because Judge
Gajewski had already classified the same past work experience as “light,” and no new evidence had
been submitted to require that the issue be reconsidered.
Pursuant to 42 U.S.C. § 405(g), Brewster filed a civil action for judicial review of the Social
Security Administration’s decision on November 5, 2002. Brewster then moved for judgment on
the pleadings, and the Commissioner moved for summary judgment. On August 8, 2004, the district
court denied Brewster’s motion for judgment on the pleadings, granted the Commissioner’s motion
for summary judgment, and affirmed the decision of the Commissioner. Brewster filed a motion to
1
The job referred to by the vocational specialist as “casket coverer” is the same job that Judge
Gajewski and Judge Davis refer to as “assembly line worker.” Brewster contends that the ALJs
erred in asserting that she worked as an assembly line worker. Quite apart from the question of
whether the vocational specialist’s report was even required to be considered by Judge Davis, which
is the major issue in this case, whether Brewster’s former job should be referred to by one name or
another is a semantic issue of no import to this appeal. The vocational specialist included
Brewster’s description of her work as a “casket coverer” in the report: “[S]he took casket lid off
assembly line sprayed it with glue put fabric on lid stamped it in put lid back on line for next step
in assembly.” Brewster’s work could thus be broadly described as “assembly line work” and
specifically described as “casket coverer.”
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alter or amend the judgment under Federal Rule of Civil Procedure 59(e) on August 23, 2004; which
was denied. Brewster then filed a notice of appeal to this Court on September 27, 2004.
DISCUSSION
I. WHETHER THE ADMINISTRATIVE LAW JUDGE (ALJ) PROPERLY ADOPTED
A PRIOR ALJ’S CLASSIFICATION OF PLAINTIFF’S PAST RELEVANT WORK.
1. Standard of review
“Judicial review of the [Commissioner’s] decision is limited to determining whether the
[Commissioner’s] findings are supported by substantial evidence and whether the [Commissioner]
employed the proper legal standards in reaching her conclusion.” Brainard v. Sec’y of Health &
Human Servs., 889 F.2d 679, 681 (6th Cir. 1989) (citing Richardson v. Perales, 402 U.S. 389, 401,
91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971)).
This appeal does not require us to consider whether substantial evidence supported the
finding that Brewster was not entitled to benefits, rather, the only issue is whether Judge Davis
employed the proper legal standard in determining that he was bound by Judge Gajewski’s prior
determination of Brewster’s past relevant work experience.
2. Legal standards for determining whether a plaintiff is disabled under the Social
Security Act
Under the Social Security Act, a person (other than one who is both blind and over age fifty-
five) is defined as disabled
only if his physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work but cannot, considering his
age, education, and work experience, engage in any other kind of substantial
gainful work which exists in the national economy, regardless of whether
such work exists in the immediate area in which he lives, or whether a
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specific job vacancy exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2)(A).
The ALJ follows a “five-step sequential evaluation process” to determine whether a claimant
is disabled within the meaning of the Social Security Act. If a finding of disability or non-disability
can be made at one of the steps in the process, the determination will be made then and the ALJ will
not reach the next step. The five steps are laid out at 20 C.F.R. § 404.1520 as follows:
1) the ALJ considers the claimant’s work activity. If the claimant is
doing substantial gainful activity, she is not disabled.
2) the ALJ considers the severity of the claimant’s medical
impairment. If the claimant does not have a severe medically determinable
physical or mental impairment (or a combination of impairments that is
severe) that meets the duration requirement of § 404.1509, she is not
disabled.
3) If the claimant has an impairment that meets or equals one of the
listings in Appendix 1 of this subpart and meets the duration requirement, the
claimant is disabled.
4) the ALJ assesses the claimant’s residual functional capacity and
her past relevant work; if she is still able to perform her past relevant work,
she is not disabled.
5) at the last step, the ALJ considers the assessment of the claimant’s
residual functional capacity and her age, education, and work experience to
see if she can make an adjustment to work. If she can make an adjustment
to other work, she is not disabled. If she cannot make an adjustment to other
work, she is disabled.
20 C.F.R. § 404.1520.
The regulations further explain that at Step 4, the ALJ will compare his or her assessment
of the claimant’s residual functional capacity with the physical and mental demands of the
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No. 04-6168
claimant’s past relevant work (which is defined as work done within the past 15 years that
represented substantial gainful employment and lasted long enough for the claimant to learn to do
it). This inquiry is conducted regardless of the claimant’s age. If the ALJ decides at Step 4 that the
claimant has the residual functional capacity to perform her past relevant work, the ALJ will
conclude that the claimant is not disabled, without reaching the analysis set forth at Step 5. 20
C.F.R. § 404.1560(b).
3. Whether Judge Davis was collaterally estopped from reconsidering the exertion
level of the claimant’s past relevant work.
This Court will apply collateral estoppel to preclude reconsideration by a subsequent ALJ
of factual findings that have already been decided by a prior ALJ when there are no changed
circumstances requiring review. For example, in Dennard v. Sec’y of Health & Human Servs., 907
F.2d 598 (6th Cir. 1990), the plaintiff filed an initial disabilities claim with the Social Security
Administration, which was reviewed by an ALJ who determined that the plaintiff was not able to
perform his past relevant work. In a subsequent application for benefits, a second ALJ determined
that the plaintiff was able to perform his past relevant work. Citing 42 U.S.C. § 405(h), which
provides that “the findings and decision of the secretary after a hearing shall be binding upon all
individuals who were parties to such a hearing,” and not reviewable except as provided, this Court
held that the second ALJ was bound by the first ALJ’s finding with respect to the plaintiff’s ability
to perform his past relevant work, and reversed.
In Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 839 (6th Cir. 1997), we reiterated that
§ 405(h) requires finality in Social Security decisions, holding that “[a]bsent evidence of an
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improvement in a claimant’s condition, a subsequent ALJ is bound by the findings of a previous
ALJ.” In that case, we held that where the first ALJ to review a claim for benefits by the plaintiff
had determined that her residual functioning capacity was for “sedentary” work, a second ALJ’s
subsequent finding that she could perform “medium” work was precluded.
In both cases, this Court emphasized the language of § 405(h), which describes as binding
all findings of the ALJ. We have yet to decide whether a party asserting collateral estoppel in a
Social Security case, in addition to making the § 405(h) showing that a prior ALJ has made a finding
on the same question sought to be litigated, must establish the traditional elements of collateral
estoppel. These are: 1) whether “the issue in the subsequent litigation is identical to that resolved
in the earlier litigation,” 2) whether “the issue was actually litigated and decided in the prior action,”
3) whether “the resolution of the issue was necessary and essential to a judgment on the merits in
the prior litigation,” 4) whether “the party to be estopped was a party to the prior litigation (or in
privity with such a party),” and 5) whether “the party to be estopped had a full and fair opportunity
to litigate the issue. Hammer v. I.N.S., 195 F.3d 836, 840 (6th Cir. 1999).
Brewster argues that traditional collateral estoppel rules are not supplanted by § 405(h). That
position finds some support in an unpublished case in which this Court applied traditional collateral
estoppel rules without citation to § 405(h) in concluding that collateral estoppel did not bar a second
ALJ from considering the issue of whether a plaintiff’s skills were transferable. Rogers v. Comm’r
of Soc. Sec, No. 99-5650, 2000 WL 799332 (6th Cir. June 9, 2000) (unpublished). We will leave
for another day the resolution of the applicability of traditional collateral estoppel rules to cases also
governed by § 405(h) because, for reasons that we will explain, we are convinced that even under
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the traditional collateral estoppel framework, Judge Davis was bound by Judge Gajewski’s earlier
finding on Brewster’s past relevant work.
Brewster argues that under traditional collateral estoppel rules, Judge Gajewski’s finding that
her residual functional capacity permitted her to perform her past relevant work as an assembly line
worker/casket coverer does not preclude a finding to the contrary by Judge Davis. (In particular,
Brewster would like Judge Davis to have found that her past relevant work required medium
exertion, not light exertion as Judge Gajewski found.) Brewster specifically invokes the requirement
under the traditional framework that a finding be “necessary and essential” to a judgment in order
to have preclusive effect, and insists that Judge Gajewski’s finding with respect to her past relevant
work was not “necessary and essential.” Because we conclude, to the contrary, that Judge
Gajewski’s finding was “necessary and essential” to the judgment, and because there is no dispute
that the other elements of collateral estoppel are satisfied in this case, we hold that Judge Davis was
collaterally estopped from revisiting the issue of Brewster’s past relevant work.
Judge Gajewski found that Brewster had the residual functional capacity to perform light
work, and that her past relevant work as an assembly line worker was also at a light exertional level,
and, hence, that she was capable of performing her past relevant work and thus not disabled. These
findings were made at Step 4 of the five-step sequential evaluation process. Brewster contends that
Judge Gajewski’s finding that her work as an assembly line worker should be classified as light was
not necessary or essential to the judgment. According to Brewster’s argument, if Judge Gajewski
had not been able to make a disability determination at Step 4, he would have been required to move
on to Step 5 of the evaluation process. At Step 5, Judge Gajewski would have considered his
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assessment of Brewster’s residual functional capacity and her age, education, and work experience
to see if she could make an adjustment to work. As part of that analysis, Judge Gajewski would
have consulted Grid Rule 202.14, set forth at 20 C.F.R. § 404, Subpart P, App. 2, which instructs
that a high school graduate between the ages of fifty and fifty-four whose residual functional
capacity is limited to light work will not be found disabled regardless of her previous work
experience.
Judge Gajewski’s decision issued the day before Brewster’s fifty-fifth birthday. Thus,
Brewster contends that she would have been found not disabled regardless of her past relevant work
experience at Step 5 of the evaluation process if Judge Gajewski had not determined at Step 4 that
she was capable of performing her prior light work. According to Brewster, this means that Judge
Gajewski’s finding that her prior work as an assembly worker was light was not necessary to the
judgment.
We disagree. Judge Gajewski was required to assess the level of Brewster’s past relevant
work. Social Security regulations state that “[i]f we find that you have the residual functional
capacity to do your past relevant work, we will determine that you can still do your past work and
are not disabled. We will not consider your vocational factors of age, education, and work
experience or whether your past relevant work exists in significant numbers in the national
economy.” 20 C.F.R. § 404.1560(b)(3). In other words, if an ALJ finds that a claimant’s residual
functional capacity matches her past relevant work, the ALJ makes a determination of non-disability
at that point (Step 4) and does not move on to Step 5. Brewster’s suggestion that Judge Gajewski
could have simply resolved her claim at Step 5, without making any findings related to her past
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relevant work, is thus in error. Judge Gajewski’s finding that Brewster’s past relevant work
included light work as an assembly line worker was required by the regulations, essential to his
ultimate judgment that Brewster was not disabled, and, in the absence of new evidence, precluded
a second finding on Brewster’s past relevant work by Judge Davis.
4. Whether the Commissioner de facto reopened the case by accepting new
vocational evidence.
Brewster offers several rather cursory arguments in support of the position that even if
collateral estoppel applies in this case, the Commissioner reopened the issue of Brewster’s past
relevant work. None of these arguments is persuasive.
First, Brewster notes that final decisions of the Commissioner are subject to reopening
pursuant to 20 C.F.R. § 404.987. However, this regulation is of no help to Brewster, as the ALJ
must find good cause to reopen a determination under the statute, and Judge Davis made no such
good cause finding in this case. 20 C.F.R. § 404.989.
Perhaps recognizing this obstacle, Brewster argues that the Commissioner “de facto”
reopened the issue of Brewster’s past relevant work. As evidence of this reopening, Brewster cites
the fact that the Commissioner required her to complete a vocational history form, and the
Commissioner received an updated analysis from a vocational specialist. However, as Brewster also
notes, new and material evidence can be good cause for reopening a claim. Of course, an ALJ
would have no way of knowing whether a finding should be revisited in light of new and material
evidence if the ALJ simply relied on the past finding. For example, there might have been evidence
that Brewster had been gainfully employed since her prior application. Considering a new
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vocational history form or a new analysis from a vocational specialist for the purpose of deciding
whether a prior finding should be reopened should not be construed as a de facto reopening. See
Sayegh v. Sec’y of Health & Human Servs., No. 90-1470, 1991 WL 60965 (6th Cir. Apr. 22, 1991)
(unpublished); Rogerson v. Sec’y of Health & Human Servs., 872 F.2d 24, 29 n.5 (3d Cir. 1989).
In this case, despite Brewster’s claims to the contrary, “new and material evidence” was not
submitted. Brewster suggests that the vocational specialist’s classification of Brewster’s assembly
line work as “medium” constitutes such evidence; however, it instead simply represents a different
view of the same evidence that was earlier presented to Judge Gajewski. The Commissioner did not
de facto reopen the case simply by accepting a second vocational history form and a second
vocational specialist report in connection with Brewster’s second application for benefits.
CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment to
the Commissioner.
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