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Dennard v. Secretary of Health and Human Serv

United States Court of Appeals, Sixth Circuit
Apr 10, 1990
907 F.2d 598 (6th Cir. 1990)

Summary

holding that a second ALJ was precluded from reconsidering whether a plaintiff could perform his past relevant work

Summary of this case from Lingar v. Berryhill

Opinion

No. 89-1777.

Argued March 12, 1990.

Decided April 10, 1990.

Kenneth F. Laritz (argued), Warren, Mich., for plaintiff-appellant.

Henry S. Kramzyk (argued), Dept. of Health and Human Services, Office of the Gen. Counsel, Region V, Chicago, Ill., Peter A. Caplan, Asst. U.S. Atty., Office of the U.S. Atty., Detroit, Mich., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Michigan.

Before WELLFORD and RYAN, Circuit Judges; and LIVELY, Senior Circuit Judge.


The plaintiff, Donald Dennard, filed an application in 1981 for social security benefits claiming a disability which began on July 7, 1981. The application was initially denied, and his request for reconsideration was denied on March 16, 1982. A hearing was held before an Administrative Law Judge (ALJ) on September 28, 1982. The ALJ concluded that Dennard was capable of performing sedentary work, that he had acquired transferable skills from his past employment, and that he was not disabled within the meaning of the Act. The Appeals Council denied his request, and the district court affirmed the secretary's decision.

Dennard subsequently filed another application for benefits on March 25, 1985, this time claiming a disability onset date of September 29, 1982. In his application, he alleged disability based on degenerative arthritis, a ruptured disc, irregular heartbeat, and hypertension. This application was denied initially and again upon reconsideration. A hearing was held before ALJ Golden, who found the plaintiff not disabled. The Appeals Council denied review, and the plaintiff then sought judicial review. By stipulation, the district court remanded the case for a new hearing to obtain and develop the medical evidence and to obtain additional vocational testimony. The Appeals Council then vacated its prior decision and a new hearing was held before ALJ Kalt, who found in 1988 that the plaintiff was not disabled and the Appeals Council affirmed the ALJ. Subsequently, both parties sought judicial review, and the magistrate assigned to the case recommended that the plaintiff be found disabled within the meaning of the Act. The district court reviewed the record de novo and concluded that the Secretary's decision denying benefits to Dennard was supported by substantial evidence and thus granted the secretary's motion for summary judgment. From that adverse determination, Dennard now appeals.

Dennard's prior claim, based on a similar disability, was denied by the district court (Judge Gilmore, No. 83 CV 1094) on August 31, 1983. He cannot claim a disability date prior to that decision, which was not appealed.

Dennard, born in 1929, completed high school, and most recently worked as a "resident aide care supervisor" at a psychiatric hospital. He has not engaged in substantial gainful activity since September 29, 1982. This would be the earliest date of entitlement and plaintiff would have to show a significant deterioration since 1981, when he was determined not to be disabled. The medical evidence in the record establishes that the plaintiff does have moderately severe lumbar spine degenerative problems, but such condition does not affect his range of motion in any significant manner. His hypertension and irregular heartbeat are controlled by medication. ALJ Golden found that Dennard's complaints of pain were not consistent with the medical evidence in the record. At the 1985 hearing before the ALJ, vocational expert Dr. Peter Fotiu described Dennard's past relevant work as a resident care aide supervisor as light and semi-skilled. He found that Dennard's job skills were transferable to other jobs in the supervisory field, and that there were numerous positions which he could fill. ALJ Golden determined that Dennard had the residual functional capacity to "perform the requirements of work except for prolonged standing or walking, manipulation of more than 10 pounds, heavy or extensive bending, or prolonged sitting that would not allow him an opportunity to stand occasionally to alleviate perceptions of discomfort. . . ." While the ALJ determined that Dennard was unable to perform his past relevant work, he did determine that Dennard could perform sedentary work.

On April 6, 1988, ALJ Kalt issued a decision again finding that Dennard was not disabled. In this decision, the ALJ determined that while the plaintiff did suffer from some impairments, these impairments did not prevent him from performing his past relevant work. The vocational expert, Miriam Mossoff, first determined, based on Dennard's testimony at the prior hearing only, that his past work as a resident care aide supervisor was semi-skilled in nature and heavy to very heavy in terms of exertional level. When reviewing the job description submitted by Dennard with his application for benefits, however, she found that the job description did not entail direct patient contact such that he would have to lift patients and that considering the job description only, the job was semiskilled, skilled, sedentary to light in nature, and that plaintiff had acquired skills which would be transferable quite easily to other jobs.

The magistrate, however, found that Dennard was disabled. He felt that ALJ Kalt had relied solely upon a job description in the Dictionary of Occupational Titles in finding that Dennard's employment as a resident care aide supervisor was sedentary to light. The magistrate, relying on Carter v. Secretary of Health and Human Services, 834 F.2d 97, 98 (6th. Cir. 1987), found that the plaintiff's description of his former job as heavy in exertion was controlling and that the ALJ erred in finding that Dennard's former job was sedentary to light.

The district court disagreed with the magistrate, finding that while Dennard could not perform his past specific job, claimant "must prove `an inability to return to his former type of work and not just to his former job'." Studaway v. Secretary of Health and Human Services, 815 F.2d 1074, 1076 (6th Cir. 1987) (emphasis in original).

The plaintiff contends that in the prior 1982 decision on Dennard's initial application for benefits, the Secretary determined that he could not perform his past relevant work. ALJ Kalt and previously ALJ Golden were precluded by estoppel from reconsidering the issue to find that he could perform this work. The Secretary had determined that Dennard could not return to his past work as a resident care aide supervisor which was found to be heavy in exertional level, based on Dennard's testimony, but that he had the residual functional capacity to perform sedentary work and was thus not disabled. It seems clear that both ALJ Golden and ALJ Kalt reconsidered the nature and extent of Dennard's exertional level in his former job as a resident care aide supervisor.

Section 405(h) provides that:

[t]he findings and decision of the secretary after a hearing shall be binding upon all individuals who were parties to such hearing. No findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided.

42 U.S.C. § 405(h) (emphasis added). The plaintiff relies on Lively v. Secretary of Health and Human Services, 820 F.2d 1391 (4th Cir. 1987), to support his position. See also Gavin v. Heckler, 811 F.2d 1195, 1200 (8th Cir. 1987) (principle of res judicata, collateral estoppel, invoked to prevent the ALJ from reevaluating evidence presented at an earlier hearing); and Lively v. Bowen, 858 F.2d 177 (4th Cir. 1988).

We are persuaded that under the circumstances, we must remand this case to the Secretary to determine whether Dennard is disabled in light of the prior determination that he could not return to his previous employment. We regret this delay in determination and further effect the remand limited to the earliest possible date of entitlement to be August 31, 1983.

The case is REVERSED and REMANDED on the conditions and circumstances herein set forth.


Summaries of

Dennard v. Secretary of Health and Human Serv

United States Court of Appeals, Sixth Circuit
Apr 10, 1990
907 F.2d 598 (6th Cir. 1990)

holding that a second ALJ was precluded from reconsidering whether a plaintiff could perform his past relevant work

Summary of this case from Lingar v. Berryhill

holding that a second ALJ was precluded from reconsidering whether a plaintiff could perform his past relevant work

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holding that an ALJ was precluded from reconsidering whether a plaintiff could perform his past relevant work

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holding that a second ALJ was precluded from reconsidering whether a plaintiff could perform his past relevant work

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holding that a second ALJ was precluded from reconsidering a prior ALJ's finding regarding claimant's ability to perform past relevant work

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holding that a second ALJ was precluded from reconsidering whether plaintiff could perform his past relevant work

Summary of this case from Blevins v. Astrue

concluding that the ALJs erred by reconsidering prior the ALJ's RFC finding

Summary of this case from Sizemore v. Comm'r of Soc. Sec.

concluding that after an ALJ made a finding regarding the nature and extent of the claimant's exertional level in his past work, subsequent ALJs were precluded from reconsidering that factual issue

Summary of this case from Ballatore v. Comm'r of Soc. Sec.

In Dennard, an ALJ concluded that the plaintiff could not perform his past relevant work as a resident care supervisor, which the ALJ characterized as "heavy."

Summary of this case from Amburgey v. Comm'r of Soc. Sec.

In Dennard v. Secretary of Health Human Servs., 907 F.2d 598, 600 (6th Cir. 1990) (per curiam), this court held that a second ALJ was precluded from reconsidering whether plaintiff Dennard could perform his past relevant work.

Summary of this case from Drummond v. Commissioner of Social Security

In Dennard v. Sec'y of HHS, 907 F.2d 598 (6th Cir. 1990), the Sixth Circuit held that an ALJ was “precluded by estoppel” from reconsidering whether a claimant could perform his past relevant work after another ALJ- deciding an earlier application-determined that the claimant could perform past relevant work.

Summary of this case from Justice v. Soc. Sec. Comm'r

In Dennard v. Sec'y of HHS, 907 F.2d 598 (6th Cir. 1990), the Sixth Circuit held that an ALJ was “precluded by estoppel” from reconsidering whether a claimant could perform his past relevant work after another ALJ, deciding an earlier application, determined that the claimant could perform his past relevant work.

Summary of this case from Bliss v. Comm'r of Soc. Sec.

In Dennard, the Sixth Circuit held that an ALJ was “precluded by estoppel” from reconsidering whether a claimant could perform his past relevant work after another ALJ, deciding an earlier application, determined that the claimant could perform his past relevant work.

Summary of this case from Ridenour v. Comm'r of Soc. Sec.

In Dennard, the Sixth Circuit held that an ALJ was “precluded by estoppel” from reconsidering whether a claimant could perform his past relevant work after another ALJ, deciding an earlier application, determined that the claimant could perform his past relevant work.

Summary of this case from Mitchell v. Comm'r of Soc. Sec.

In Dennard, the Sixth Circuit held that an ALJ was “precluded by estoppel” from reconsidering whether a claimant could perform his past relevant work after another ALJ, deciding an earlier application, determined that the claimant could perform his past relevant work.

Summary of this case from Chapa v. Comm'r of Soc. Sec.

In Dennard, the Sixth Circuit held that, where the final decision of the agency after a hearing on a prior disability claim contains a finding of the demands of a claimant's past relevant work, the agency may not make a different finding in adjudicating a subsequent disability claim with an unadjudicated period arising under the same title of the Act as the prior claim unless new and additional evidence or changed circumstances provide a basis for a different finding.

Summary of this case from Prichard v. Comm'r of Soc. Sec.

In Dennard v. Sec'y of Health & Human Servs., 907 F.2d 598, 600 (6th Cir. 1990), the court of appeals held that an ALJ is generally bound by prior ALJ's factual determinations.

Summary of this case from Jablonski v. Comm'r of Soc. Sec.

In Denard v. Sect'y of Health and Human Servs., 907 F.2d 598, 598-99 (6th Cir. 1990) the Sixth Circuit held that a subsequent ALJ was estopped, on res judicata grounds, from contradicting a prior determination that a claimant was unable to perform his past relevant work.

Summary of this case from McKennon v. Soc. Sec. Admin.

In Dennard, the claimant filed an application for benefits which was eventually denied on the ground that, while he could no longer perform his past relevant work, he retained the ability to perform sedentary work which existed in significant numbers.

Summary of this case from Clark v. Comm'r of Soc. Sec.

applying res judicata in Social Security cases

Summary of this case from Nicholson v. Comm'r of Soc. Sec.

In Dennard v. Secretary of Health and Human Services, 907 F.2d 598 (6th Cir. 1990) and Drummond v. Commissioner of Social Security, 126 F.3d 837 (6th Cir. 1997) the Sixth Circuit confronted the question of whether res judicata applies against the Commissioner of Social Security on claims which have been previously determined.

Summary of this case from Webb v. Comm'r of Soc. Sec. Admin.

In Dennard v. Sec'y of Health & Human Servs., 907 F.2d 598 (6th Cir. 1990), the United States Court of Appeals for the Sixth Circuit held that a prior administrative determination regarding the exertional level of a claimant's past work was binding in subsequent administrative proceedings.

Summary of this case from Moore v. Comm'r of Soc. Sec.

In Dennard, the United States Court of Appeals for the Sixth Circuit held that a prior administrative determination regarding the exertional level of a claimant's past work was binding in subsequent administrative proceedings.

Summary of this case from Shope v. Comm'r of Soc. Sec.

In Dennard v. Sec. of Health & Human Servs., 907 F.2d 598, 598 (6th Cir. 1990)(per curiam), the Sixth Circuit held that in cases where the Secretary determines on an initial application for benefits that the claimant is not capable of performing his past relevant work, subsequent ALJs are precluded, by estoppel, from reconsidering the issue and finding that the claimant is capable of performing such past relevant work.

Summary of this case from Brogan v. Comm'r of Soc. Sec.

In Dennard, the claimant had similarly filed multiple applications for Social Security disability benefits, and received conflicting decisions from the two ALJs.

Summary of this case from Moore v. Comm'r of Soc. Sec.
Case details for

Dennard v. Secretary of Health and Human Serv

Case Details

Full title:DONALD DENNARD, PLAINTIFF-APPELLANT, v. SECRETARY OF HEALTH AND HUMAN…

Court:United States Court of Appeals, Sixth Circuit

Date published: Apr 10, 1990

Citations

907 F.2d 598 (6th Cir. 1990)

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