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Kitchen v. Colvin

United States District Court, M.D. Pennsylvania

May 18, 2015



JOHN E. JONES, III, District Judge.


The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Travis L. Kitchen's claim for social security supplemental security income benefits for the period October 1, 2005, through September 30, 2009.

Supplemental security income (SSI) is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income.

The issues raised in this appeal implicate two SSI applications filed by Kitchen. As will be mentioned below the alleged disability onset date was amended by Kitchen to September 9, 2007, during proceedings on a second SSI application, and he was found disabled as of September 9, 2007, by a different administrative law judge based on that second application, although not receiving benefits from that date forward.[1] Consequently, the relevant time period is from September 9, 2007, until December 13, 2012, the date an administrative law judge issued a decision on the first SSI application after a remand to the Commissioner by this court.

The complaint in the above-captioned case was filed on February 20, 2014, and the administrative record on April 22, 2014.[2] Supporting and opposing briefs were filed and the case became ripe for disposition on December 22, 2014, when Kitchen filed a reply brief.

Counsel for the parties are familiar with the five-step sequential evaluation process that the Commissioner utilizes and the standard of review. The instant appeal only presents a legal issue.[3]

For the reason set forth below the court will remand the case to the Commissioner with directions that if Kitchen meets the financial eligibility requirements he should be awarded benefits starting on September 9, 2007, instead of October 1, 2009.


Kitchen, who was born in the United States on May 29, 1972, graduated from high school in 1990 and can read, write, speak and understand the English language and perform basic mathematical functions, including counting change, handling a savings account and using a checkbook and money orders. Tr. 52, 67, 72 and 563.[4] During his elementary and secondary schooling, Kitchen attended regular education classes. Tr. 72. After graduating from high school, Kitchen did not complete any other type of training or schooling. Id. Although Kitchen worked briefly as a laborer at a factory, he has no past relevant employment.[5] Tr. 78 and 456. Records of the Social Security Administration reveal that Kitchen had employment in 1993, 1996, and 1999, and his total earnings were $3104.55. Tr. 456. His highest annual income was $2070.30 in 1999. Id. Kitchen has not worked since June, 1999. Tr. 68. Sometime in 1999, Kitchen was charged with several state criminal offenses, including sexual abuse of children, and was found guilty and sentenced to a minimum term of imprisonment of 4 years and 10 month to a maximum of 14 years and 8 months. Tr. 112. In September of 2005, Kitchen was released on parole to a community corrections center located in Scranton. Tr. 104.

Kitchen protectively filed[6] his first application for supplemental security income benefits on October 1, 2005. Tr. 51-57. In the application Kitchen claimed that he became disabled on September 30, 2005.[7] Tr. 52. Kitchen alleged that he was unable to engage in substantial gainful activity because of congenital club feet, spontaneous dislocation fracture of the radial head of the left elbow, schizoaffective disorder, bipolar disorder, antisocial personality disorder and intermittent explosive disorder. Tr. 38. The application was initially denied by the Bureau of Disability Determination[8] on May 8, 2006. Tr. 38-42. On May 24, 2006, Kitchen requested a hearing before an administrative law judge. Tr. 43. After 14 months had elapsed, a hearing was held on July 24, 2007. Tr. 307-332. On September 8, 2007, the administrative law judge issued a decision denying Kitchen's application. Tr. 16-26. On November 1, 2007, Kitchen filed a request for review with the Appeals Council of the Social Security Administration's Office of Disability Adjudication and Review, and on February 5, 2010, the Appeals Council concluded that there was no basis upon which to grant Kitchen's request for review. Tr. 9-12 and 304-306. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

On October 18, 2010, Kitchen filed a complaint in this court and the case was assigned to Judge Nealon. Kitchen v. Astrue, Civil No. 10-2150 (M.D.Pa. Oct. 21, 2012). On February 3, 2012, Judge Nealon granted the appeal and remanded the case to the Commissioner for further proceedings. Id., Docs. 19 & 20, Memorandum and Order issued on February 3, 2012. The Appeals Council on April 26, 2012, referred the case to the same administrative law judge to conduct a second hearing and with instructions, inter alia, to "[o]btain evidence from a medical expert to clarify the nature and severity of the claimant's impairments and to determine whether an earlier onset date is warranted." Tr. 436.

Prior to the remand order, Kitchen on September 9, 2009, filed with the Social Security Administration a new application for SSI benefits. Tr. 349 and 396. A hearing on that application was held before a different administrative law judge on July 12, 2011. Tr. 396 and 725-761. At that hearing Kitchen amended his alleged disability onset date to September 9, 2007. Tr. 728-729. On August 30, 2011, the administrative law judge issued a decision finding that Kitchen's impairments - multiple bilateral tarsal coalitions[9] with bilateral degenerative osteoarthritis, congenital pes planus (flat-footed), history of right carpal coalition of the right wrist, status/post carpal tunnel release, status post left elbow surgery, bipolar disorder not otherwise specified, and post traumatic stress disorder - met the requirements of Listing 1.02A, "Major dysfunction of a joint(s)(due to any cause)." Tr. 396-401. Specifically, the administrative law judge stated in pertinent part as follows:

A review of the claimant's record indicates that he previously filed [an SSI] application for benefits, alleging a disability onset date of June 1, 1999.[10] This application was denied initially and at the hearing level in an unfavorable decision by Administrative Law Judge Richard Zack dated September 8, 2007. By Notice dated February 5, 2010 the Appeals Council denied the claimant's request for review of Judge Zack's decision thereby making that decision the final and binding decision of the Commissioner. The undersigned does not find a basis for reopening the claimant's prior [SSI] application[].... Accordingly, the period through the date of that decision is precluded from review by application of the doctrine of res judicata and the period at issue herein is from September 9, 2007, the day after Judge Zack's unfavorable decision, and the amended onset date through the date of this decision.
* * * * * * *
After careful review of the entire record, the undersigned
finds that the claimant has been disabled from September 9, 2007, through the date of this decision. Although the
claimant has alleged an earlier disability onset date of September 9, 2007, supplemental security income does not become payable until the month after the month in which the application is filed, assuming all eligibility requirements are met[].[11]
* * * * * * *
The claimant's impairment meets listing 1.02A. This section requires a major dysfunction of a joint(s) (Due to any cause): characterized by gross anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis, instability) and chronic joint pain and stiffness with signs of limitation of motion or other abnormal motion of the affected joint(s), and finding on appropriate medically acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the affected joint(s) with involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or ankle), resulting in an inability to ambulate effectively, as defined in 1.00B2b.[12]
According to the medical evidence the claimant has a well documented history of being diagnosed with and treated for multiple bilateral tarsal coalitions with bilateral degenerative osteoarthritis and congenital pes planus. These diagnoses are confirmed by numerous treating and examining podiatrists, whose treatment records document continuing pain with standing and ambulation, painful and decreased range of motion of the bilateral feet and ankles, significant bilateral deformities of the bilateral feet and ankles, decreased strength in the bilateral ankles, and antalgic and/or abnormal gait, joint deformity and instability, muscle atrophy, tenderness of the bilateral ankles and feet, significant spurring, and decreased bilateral arch height. The claimant's symptomatology has persisted despite ongoing treatment with narcotic pain medications and the use of prescribed braces. Although referred for possible surgical intervention due to his persistent symptomatology he was determined not to be a surgical candidate.

Tr. 396-399. The administrative law judge who addressed the second application found that Kitchen met the requirements of the listing and was disabled since September 9, 2007, and was aware that there was a pending appeal before this court relating to the first application. Tr. 401 and 729.

Kitchen contends that he is entitled to an award of benefits commencing on October 1, 2005, or at least an award as of September 9, 2007. He makes several arguments in support of his claim. With respect to his contention that benefits should be awarded as of October 1, 2005, he raises the following three issues: (1) the administrative law judge failed to obtain testimony from a medical expert in violation of the remand order of the Appeals Council dated April 26, 2012; (2) the administrative law judge committed reversible error by improperly rejecting the opinion of a consultative examiner; and (3) the administrative law judge erred by relying on answers to incomplete hypothetical questions. The court discerns no merit in these argument because Kitchen amended his alleged onset date at the hearing on the second application for SSI to September 9, 2007. Kitchen's arguments relate to a period before that date. Consequently, Kitchen's arguments are moot and it is not necessary to review the medical evidence prior to that date. Furthermore, because he was found disabled based on the second SSI application as of September 9, 2007, it is unnecessary to review any of the medical evidence after that date.

The issue is solely whether Kitchen should have been awarded a period of disability beginning on September 9, 2007. The administrative law judge who ruled on the first application assumed he could not consider the period from September 9, 2007 to September 9, 2009, because 20 C.F.R. § 416.935 precludes payment of SSI benefits for any month prior to the month following the month an application is filed. The second application was filed on September 9, 2009, and the administrative judge who addressed the first application utilized that date when applying 20 C.F.R. § 416.935 instead of the date the first application was protectively filed, i.e., October 1, 2005. The Commissioner has not explained why the October 1, 2005, filing date should not control the disposition of the first case which was remanded by Judge Nealon for further proceedings.

There is a general principle that because the Social Security Act is a piece of remedial legislation, it is to be interpreted liberally. See, e.g., Dixon v. Shalala, 54 F.3d 1019, 1028 (2d Cir. 1995); Papciak v. Astrue, 742 F.Supp.2d 765, 769 (W.D.Pa.2010); Modla v. Gardner, 251 F.Supp. 617, 620 (M.D.Pa. 1966). This is a factually unique case and the court was unable to find any analogous cases. Based on the duty of liberal construction of the Social Security Act and the regulations promulgated thereunder, the court concludes that the protective filing date of the first application should control and that the administrative law judge erred when he failed to consider the period from September 9, 2007, to September 30, 2009.

Our review of the administrative record reveals that the decision of the Commissioner contains legal error requiring a remand with directions to award benefits to Kitchen, if Kitchen was financially eligible, for the period September 9, 2007, through September 30, 2009.

An appropriate order will be entered.

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