UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION AT DAYTON

CHERYL HARRIS,

Plaintiff, 

vs.

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION,

Defendant.

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Case No. 3:17-cv-00317

Magistrate Judge Sharon L. Ovington

(by full consent of the parties)

DECISION AND ORDER

I. Introduction

Plaintiff Cheryl Harris seeks judicial review of the Commissioner’s final administrative 

determination denying her application for Supplemental Security Income. She has filed

applications twice. The Social Security Administration granted her first one, and she received

benefits from at least the mid-1990s through 2009. (Doc. #8, PageID #1025). Her benefits 

stopped—not because her health improved but—because she was sent to prison. See 42 U.S.C. § 

1382(e)(1)(A) (no person is eligible for Supplemental Security Income during months he or she “is 

an inmate of a public institution.”).

Plaintiff was released from prison in 2014. She protectively filed her second application for 

Supplemental Security Income on February 6, 2014, asserting she had been under a disability since 

1995.

1 See 42 U.S.C. § 1383(j)(1). Administrative Law Judge (ALJ) Mark Hockensmith found that 

she was not disabled and consequently denied her second application for Supplemental Security 

 1

The protective-filing date is when Plaintiff first contacted the Administration to inquire about benefits. It 

may be used to establish an earlier application date than the date the Administration actually received her

signed application. See http://www.ssa.gov/glossary.
2

Income.

Plaintiff finds many flaws in ALJ Hockensmith’s decision. She argues, in part, that he 

failed to reasonably account for the Administration’s previous award of disability benefits to her. 

She also contends that the ALJ failed to adequately weigh the opinions of her treating physicians. 

She seeks an Order remanding this case for an immediate award of benefits rather than for further 

proceedings.

The Commissioner finds no error in the ALJ’s decision and argues that substantial evidence 

supports the ALJ’s findings. The Commissioner seeks an Order affirming the denial of Plaintiff’s 

second application for Supplemental Security Income.

II. “Disability” Defined

Plaintiff’s eligibility to receive Supplemental Security Income centered on whether she was 

under a “disability” as defined by social security law. See 42 U.S.C. §

1381a; see also Bowen v. City of New York, 476 U.S. 467, 470 (1986). Narrowed to its statutory 

definition, a person is under a disability when her long-lasting (at least one year) “medically 

determinable physical or mental impairment” prevents her from engaging in “any substantial 

gainful activity.” 42 U.S.C. § 1382c(a)(3)(A); see Lindsley v. Comm’r of Soc. Sec., 560 F.3d 601, 

602 (6th Cir. 2009).

III. Background

A. Plaintiff and Her Testimony

Plaintiff was a “younger” person (forty-eight years old) when she filed her second

application for Supplemental Security Income. When she turned age fifty, she aged into the 

Administration’s category of a person “closely approaching advanced age.” 20 C.F.R. §

416.963(d). She holds a high-school GED but has no significant work experience, at least since 
3

1999. (Doc. #6, PageID #s 77, 224, 239). 

Plaintiff testified during her administrative hearing that upon her release from prison, she 

underwent a psychiatric evaluation and ultimately began treatment with psychiatrist Ritesh Kool, 

MD and in a program known as the Consumer Advocacy Model. Plaintiff told the ALJ that she 

began mental-health treatment because she had been “a little unstable all her life..., so she knows 

she needs treatment in order to function properly.” Id. at 78. She participated in weekly group 

therapy in a woman’s group because she “had a lot of sexual abuse as a child..., and it was like a 

processing group.” Id. at 79.

Plaintiff informed the ALJ that she began treatment with the Cornerstone Project in June 

2015. Id. at 80. Later, in December 2015, she began twice weekly treatment in the MAT 

(Medication Assisted Treatment) Program.2 Id. When asked what this involved, she said, “That is 

a lot of drug and alcohol stuff.” Id. She was also having one-on-one counseling during which they 

talk about her personal issues that could have caused her drug and alcohol use. Id. 

The mental-health treatment she received after leaving prison made her feel less angry, but 

she still had a lot of problems with depression. Id. at 81. She has times when she just wants to 

“sleep and sleep and sleep for days on end.” Id. In the past, she used drugs to help bring herself out 

of depression. She told the ALJ that she was fighting against “the using of drugs—illegal drugs.” 

Id. She will go through this fight against illegal drug use and depression two or three times a 

month, but sometimes an episode will last two weeks. She noted, “I don’t even want to get up and 

eat, shower, or anything.” Id.

 2

The transcript from Plaintiff’s administrative hearing refers to the “map program.” Id. at 80. This is most 

likely a transcription error. Plaintiff testified about the MAT program at Samaritan Behavioral Health, which 

uses Suboxone and other medications, along with individual, group, and family counseling, as part of a 

treatment program for opioid addiction. See Doc. #6, PageID #881; see also https://sbhihelp.org/substanceabuse-services.
4

 Plaintiff she lived by herself in an apartment. Id. at 71. She testified that she does not really 

have friends and does not want to be around other people. Id. at 90. She explained:

It makes me uncomfortable. I mean, I don’t trust people..., I feel like people ... 

always have an ulterior motive, you know what I mean? Like they’re there 

because they’re going to try and get—rob me or steal something, take my 

Suboxone, something, there’s always something ....

Id. at 90. Plaintiff also has problems with concentration. She has trouble reading and remembering 

what she’s read. She explained, “Sometimes I can be talking to somebody and I don’t even know 

what they’re saying, I’ll be looking at them, I don’t even know, I don’t even hear them.” Id. at 91.

Plaintiff’s physical health problems include obesity—she is 5’9” inches tall and weighs 250 

pounds. Id. at 71. She easily gets short of breath and uses a rescue inhaler a couple of times each 

day, especially when she walks. Id. at 84-85. She typically walks a block and a half. Id. at 85.

Plaintiff has arthritic pain and bone spurs in her neck and low back. She explained that she 

has “congenital fusion of some vertebrae...” in her lower back and in her neck. Id. at 89. This has 

caused her to have arthritis throughout her spine. Her pain is always present, and she treats it with 

“a lot of ibuprofen.” Id. at 85. At one point, Plaintiff fractured her pelvis. Id. at 87. A physician 

prescribed a cane for her, and she has used it since the fracture. She still has pelvic pain that 

extends into her upper and lower extremities. Id. at 88-89. Plaintiff testified that her lower back 

pain makes it difficult for her to complete household chores without resting. Id. at 91.

B. Medical Records and Opinions

Dr. Kool and Ms. Jones

After her release from prison, Plaintiff underwent an initial psychiatric evaluation with Dr.

Kool in May 2014. He diagnosed her with post-traumatic stress disorder, chronic; tobacco 

dependence; and major depressive disorder, chronic, mild to moderate. Id. at 447. Dr. Kool 

reported that Plaintiff had a history of repeated childhood sexual abuse and a diagnosis of post-
5

traumatic stress disorder (chronic). Id. at 445. She also had a history of attention-deficit 

hyperactivity disorder and bipolar I disorder. Id.

According to Dr. Kool, Plaintiff’s inventory of depression was positive for depressed mood, 

initial insomnia, anhedonia, low-self-esteem, low energy, problems concentrating, increased 

appetite, and suicidal ideations with attempts. Her symptoms of mania were without insomnia or 

racing thoughts. Although she would be anxious, she could “complete tasks including cleaning her 

house.” Id. Plaintiff also described to Dr. Kool her “impulsive money spending or sexual activity, 

[and] anger issues ....” Id. 

Dr. Kool’s mental-status examination of Plaintiff revealed, among other things, that her

mood was euthymic, her affect was mildly labile, and she was cooperative. Id. Dr. Kool explained, 

“Given her childhood abuse history, she displays a personality structure that varies in emotional 

stability that is consistent with low to moderate functioning given her hospitalizations and legal 

history....” Id.

In June 2014, Dr. Kool completed a mental impairment questionnaire in which he opined 

that Plaintiff experienced marked restrictions in her abilities to maintain social functioning; to 

sustain concentration, persistence, or pace; to work in proximity to others without being distracted 

by them; to respond appropriately to criticism from supervisors; to get along with coworkers; and to

complete a normal workday without interruptions from psychologically based symptoms. Id. at 

408-09. Dr. Kool also opined that Plaintiff was extremely limited in her abilities to understand and 

remember detailed instructions and to interact with the general public. Id. at 408-09. Plaintiff’s 

impairments or treatment would cause her to be absent from work more than three times each 

month, according to Dr. Kool. Id. at 408. 

Teresa Jones, MS, PCC, Plaintiff’s mental-health counselor, wrote a letter in February 2015
6

on Plaintiff’s behalf for the Housing Choice Voucher Program. Ms. Jones thought that Plaintiff 

“meets the definition of disability under the American Disability Act, the Fair Housing Act, and the 

Rehabilitation Act of 1973.” Id. at 510. Ms. Jones listed Plaintiff’s diagnoses as bipolar disorder I, 

post-traumatic stress disorder, and attention-deficit hyperactivity disorder. Id. 

Down the road a month, Ms. Jones completed a functional capacity assessment for the 

Department of Jobs and Family Services. She opined that Plaintiff experiences marked limitations 

in most areas of her mental-work activities, and she thought that Plaintiff would be unemployable 

for twelve months or more. Id. at 548. 

Treatment records in April 2015 identify Plaintiff’s diagnoses as “Bipolar I disorder, most 

recent episode (or current) depressed, severe, specified as with psychotic behavior.” Id. at 746. She 

also continued to be diagnosed with PTSD. Id. at 746-891. She reported struggles with “depression 

(isolating, cutting, sadness) and anxiety, seemingly tied to PTSD diagnosis.” Id. at 758, 811, 822. 

In late April or early May 2015, Ms. Jones discussed with Plaintiff “recent incidents that led 

up to dismissal from [the] Women’s Group” Id. at 756, 748. On May 12, 2015, Ms. Jones 

completed a questionnaire in which she listed Plaintiff’s diagnoses as bipolar I disorder, posttraumatic stress disorder, and attention-deficit/hyperactivity disorder. Id. at 701. Ms. Jones wrote, 

“Currently, Ms. Harris’ impairment is severe, due to isolation, inattention, aggressive demeanor, 

and mood swings. Ms. Harris has recently reported cutting and suicidal ideation.” Id. at 702. Ms. 

Jones believed that Plaintiff’s impairment had lasted for at least twelve consecutive months. She 

opined that Plaintiff has marked or extreme impairment nearly all the major areas of work-related 

mental functioning. Id. at 703-04. She thought that Plaintiff would likely miss work at least three 

times per month, due to her impairments. Id. at 703. 

In mid-August 2015, Plaintiff fell when stepping off a bus and fractured her right hip. Id. at 
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858, 902, 912. Hospital records state, “The patient has a history of heroin addiction and at this 

point, she is going to the clinic and she is being treated for heroin addiction, and she is on 

buprenorphine to avoid heroin withdrawal.... [S]he is very concerned about getting strong [painrelief] narcotics as she is trying to come of the heroin.” Id. at 930.

Plaintiff reported having worse symptoms of depression in September 2015. Id. at 819. She 

believed this was “at least partly to do with not using any substances at this time and [she] has to 

‘live in the real world.’ She states being clean from all substances has made her very depressed and 

emotional.” Id. at 822.

Psychiatric progress notes on November 12, 2015 report that Plaintiff had a history of 

marijuana use and opiate addiction but it was in remission with suboxone. Id. at 857. Plaintiff

again described her depression as “worse,” and she again thought it was at least partly because she 

was not using any substances and has to live in the real world. Id. at 858. “She states being clean 

from all substances has made her very depressed and emotional.” Id. Plaintiff told Ms. Jones in

November 2015 that her moods had been “fairly under control except for a few periods of 

hypomanic stuff.” Id. at 868-69. 

In January 2016, Ms. Jones noted that Plaintiff’s “mental health progress has been slow yet 

steady. [Her] depression/anxiety are moderate.” Id. at 881. Plaintiff said, “I’m doing really well, I 

feel like this new year is going to be great....” Id.

Psychologist Giovanni Bonds, PhD

Dr. Bonds evaluated Plaintiff one time upon referral from Ohio’s Division of Disability 

Determination. Id. at 497-504. Plaintiff told Dr. Bonds that she had previously received Social 

Security due to her mental illness. Plaintiff described “her problems [as] depression, poor memory, 

ADHD, bipolar disorder, PTSD, hepatitis C, COPD and back pain.” Id. at 497. Plaintiff said she 
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cannot work because she has a hard time concentrating, remembering, and staying organized. She 

is afraid of the dark and never sleeps for more than an hour at a time. She has trouble breathing and 

cannot stand for a long time. She has a hard time walking. She reported mental problems since

childhood, including nervousness/anxiety, panic attacks, recurrent and intrusive memories of a 

traumatic event, sleep disturbance, depressed mood, suicidal thoughts, social withdrawal,

hyperactivity, lack of energy, poor memory, and mood swings. Id. at 498.

Dr. Bonds observed that Plaintiff’s mood seemed moderately depressed, and her affect was 

broad and appropriate to her thought content. Id. at 501. Plaintiff told Dr. Bonds, “I feel down. I 

don’t want to go anywhere. I have always felt inadequate.” Id. Dr. Bonds found that Plaintiff’s 

“cognitive abilities seem below average and in about the borderline low average range.” Id. at 502. 

Dr. Bonds diagnosed Plaintiff with bipolar disorder, opioid dependence, and borderline intellectual 

functioning. Id. at 503. She opined that Plaintiff has low frustration tolerance. She would have 

some difficulties dealing with the interpersonal stresses of working, dealing with the public, and 

being around many people. Id. at 504. 

Dr. Bonds also completed a mental capacities assessment in which she opined that Plaintiff 

was moderately impaired in most areas of work-related mental functioning,

with mild impairment in her ability to make judgments on simple, work-related decisions. She had 

no impairment in her ability to carry out simple instructions and tasks. Id. at 507-09. She had poor 

stress tolerance and poor coping skills for dealing with work conflicts and pressures for work 

performance and productivity. Id. at 509. Dr. Bonds noted, “Substance abuse has contributed to 

her problems but even when not using she is very emotionally unstable.” Id.

Deryck Richardson, PhD and Courtney Zeune, PsyD

In April 2014, psychologist Dr. Richardson reviewed the administrative record. Id. at 104-
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15. He opined that Plaintiff had mild restrictions in her activities of daily living, moderate 

difficulties in social functioning, and moderate limitations in concentration, persistence and pace. 

Id. at 110. He found insufficient evidence in the record to conclude that Plaintiff had episodes of 

decompensation of extended duration. Id. Dr. Richardson thought that Plaintiff should avoid rapidpace work, high-production standards, frequent changes, and anything more than superficial 

contacts with others. Id. at 113-15. 

In September 2014, psychologist Dr. Zeune reviewed the administrative record. She opined

that Plaintiff should avoid strict production quotas and should work in a setting with minimal social 

distractions. Id. at 131. According to Dr. Zeune, Plaintiff would be restricted to a job where she 

could work independently or with one or two familiar coworkers for superficial interactions in a 

non-public setting where there is no over the shoulder scrutiny. Id. at 132.

Scott D. Shaw, M.D.

In October 2014, Plaintiff began primary-care treatment with Dr. Shaw. Id. at 555-58. She 

continued to see Dr. Shaw for treatment until at least June 2015. Id. at 560, 563, 566, 569, 573, 

710. 

On March 31, 2015, Dr. Shaw opined that Plaintiff could only stand for one hour per eighthour workday and she could lift ten pounds at most. Id. Dr. Shaw opined that due to low back and 

neck pain (with bulging discs), Plaintiff had extreme limitations in pushing, pulling, bending, 

reaching, handling, and performing repetitive foot movements. Id. Dr. Shaw concluded that 

Plaintiff was unemployable for twelve months or more. Id. at 579-80.

In April 2015, Dr. Shaw completed a Questionnaire. Id. at 699-700. He opined that 

Plaintiff could frequently lift five pounds but could never bend, stoop, or balance. He thought that 

Plaintiff could stand for thirty minutes at a time and sit for sixty minutes at a time. He further 
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opined that Plaintiff needed to elevate her legs occasionally during the day. Dr. Shaw concluded 

that Plaintiff’s medical problems would take her off-task twenty percent of a typical work week.

Consultative Examiner Damian Danopulos, M.D. 

In April 2014, Plaintiff was examined by Dr. Danopulos at the request of the state agency. 

Id. at 384-98. Plaintiff complained of shortness of breath, headache, neck, mid, low back pain. Dr. 

Danopulos noted that since birth, Plaintiff has had effort-related shortness of breath. Plaintiff 

reported that she can walk one block but had to stop after climbing half a flight of stairs. Id. at 384. 

She noted her headaches are constant. Id. at 385. On examination, she weighed 261 pounds. She 

exhibited a normal gait and bilateral leg-raising tests were normal. Cervical range of motion was 

normal but painful. Deep tendon reflexes were highly exaggerated in upper her extremities. She 

exhibited full strength in all areas. Her grip and fine manipulation were normal. Lumbar range of 

motion was 80 degrees flexion, 20 degrees extension. All other range of motion was normal. Id. at 

386-87, 390-93. 

Lung examination showed wheezing to auscultation. Her “chest excursions were normal but 

expiration was prolonged. No labored breathing existed. She showed no cyanosis.” Id. at 387. Dr. 

Danopulos noted, “Ventilatory function study revealed moderate degree lung obstructive disease.” 

Id.

Dr. Danopulos concluded that Plaintiff has no physical impairments that would interfere 

with work related activities. Id. at 389. 

Record Reviewers Steve E. McKee, MD

and Esberdado Villanueva, MD

In May 2014, Dr. McKee reviewed the administrative record. Id. at 104-13. He opined that 

Plaintiff could occasionally lift and/or carry fifty pounds and frequently lift and/or carry twenty-five 

pounds. She could stand and/or walk for six hours out of eight and sit for six hours out of eight. Id.
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at 112. He believed that Plaintiff could frequently climb ramps/stamps and occasionally climb 

ladders/ropes/scaffolds. Dr. McKee thought Plaintiff should avoid concentrated exposure to 

extreme cold, hot, humidity, fumes, odors, dusts, gases, poor ventilations due to her COPD. Id. at 

113.

Several months later, Dr. Villanueva reviewed the administrative record and concurred with 

these aspects of Dr. Smith’s opinions. Id. at 128-30. 

IV. Standard of Review and ALJ Hockensmith’s Decision

Review of ALJ Hockensmith decision considers whether he applied the correct legal 

standards and whether substantial evidence supports his findings. Blakley v. Comm’r of Soc. Sec., 

581 F.3d 399, 406 (6th Cir. 2009); see Bowen v. Comm’r of Soc. Sec., 478 F.3d 742, 745-46 (6th 

Cir. 2007). Substantial evidence consists of “more than a scintilla of evidence but less than a 

preponderance....” Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th Cir. 2007).

ALJ Hockensmith considered the evidence and evaluated Plaintiff’s disability status under 

each of the five sequential steps set forth in the Social Security Regulations. See 20 C.F.R. § 

416.920. His more pertinent findings began at step two where he found that Plaintiff had many 

severe impairments including, for example: scoliosis with lumbar degenerative disc disease; status 

post right-hip fracture; chronic obstructive pulmonary disease; obesity; bipolar disorder; posttraumatic stress disorder; attention-deficit hyperactivity disorder; and opioid dependence. (Doc. #6 

at PageID #42).

He determined at step three that Plaintiff was not automatically eligible for benefits under 

the Commissioner’s Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1.

At step four, the ALJ examined the most Plaintiff could do despite her impairments—her 

residual functional capacity, see Howard v. Comm’r of Soc. Sec., 276 F.3d 235, 239 (6th Cir. 
12

2002)—and concluded that she could perform light exertional work subject to 16 limitations:

(1) no ladders, ropes, or scaffolds; (2) occasional ramps/stairs; (3) frequent 

balancing; (4) occasional stooping, kneeling, crouching, and crawling; (5) frequent 

overhead reaching bilaterally; (6) avoid concentrated exposure to extreme heat and 

cold and humidity; (7) avoid concentrated exposure to fumes, dusts, gases, odors, 

and poorly ventilated areas; (8) no work at unprotected heights; (9) occasional 

pushing/pulling with upper and lower extremities; (10) limited to simple, routine 

tasks; (11) in a static work environment with few changes in routine; (12) no fast 

paced work or strict production quotas; (13) no contact with public; (14) minimal 

social distractions; (15) occasional contact with coworkers and supervisors; and 

(16) no tandem or collaborative work.

Id. at 45.

The ALJ found at step five that an individual with Plaintiff’s residual functional capacity, 

age, education, and work experience can perform many jobs (about 2.2 million) that exist in the 

regional economy. Id. at 56. Given this finding, the ALJ ultimately concluded that Plaintiff was 

not under a benefits-qualifying. Id.

V. Discussion

Plaintiff argues that ALJ Hockensmith erred in failing to secure, and then consider, her 

previous administrative record and the evidence that resulted in her award of disability benefits

from the mid-1990’s to 2009. Plaintiff contends that “principals of res judicata bind the 

Commissioner to prior administrative findings which were favorable to a disability claimant. See

AR 98-4(6).” (Doc. #8, PageID #1033). This contention lacks merit. The Regulations and Earley 

v. Comm’r of Soc. Sec., 893 F.3d 929 (6th Cir. 2018) tell why.

As noted above, Plaintiff was on SSI for nearly fifteen years until she was incarcerated in 

2009. While incarcerated her benefits ceased. When she was released she filed again for benefits. 

(Doc. #6, PageID #s 196-203).

The Regulations establish a suspension first, termination later procedure for individuals 

incarcerated in public institutions. When an SSI recipient is initially incarcerated, payment of his or 
13

her SSI is suspended. See 20 C.F.R. § 416.1325(a). Yet SSI eligibility is not suspended forever. 

“If benefits are otherwise payable, they will be resumed effective with the earliest day of the month 

in which a recipient is no longer a resident of a public institution....” Id. § 416.1325(b). If the 

Regulations stopped here, Plaintiff’s benefits would have automatically resumed after her release 

from prison (assuming she still met the other eligibility requirements). See id.

But the Regulations don’t stop here. They also provide, “We [the Administration] will 

terminate your eligibility for benefits following 12 consecutive months of suspension for any reason 

....” Id. at § 416.1335. The ALJ reported that Plaintiff was incarcerated “beginning in December 

2010 through February 2014....” (Doc. #6, PageID #49). She thus served well over 12 consecutive 

months in prison. Consequently, her eligibility for SSI benefits terminated at the start of her 13th 

month in prison with no possibility her eligibility would automatically resume upon her release 

from prison. Compare 20 C.F.R. § 416.1325(b) with § 416.1335. The Commissioner is therefore 

correct to point out that once Plaintiff’s eligibility for SSI terminated during her incarceration, she 

needed to file a new SSI application upon her release from prison. See Stubbs-Danielson v. Astrue, 

539 F.3d 1169 (9th Cir. 2008). This, however, is not the panacea the Commissioner hopes for.

“‘Res judicata bars attempts to relitigate the same claim, but a claim that one became 

disabled in 1990 is not the same as a claim that one became disabled in 1994.’” Earley v. Comm’r 

of Soc. Sec., 893 F.3d 929, 933 (6th Cir. 2018) (quoting Groves v. Apfel, 148 F.3d 809, 810 (7th Cir. 

1998)). Both the Commissioner and the applicant for benefits are entitled to seek a “fresh review of 

a new application for a new period of time.” Earley, 893 F.3d at 934. When engaging in a fresh 

review, “it is fair for an administrative law judge to take the view that, absent new and additional 

evidence, the first administrative law judge’s findings are a legitimate, albeit not binding, 

consideration in reviewing a second application.” Earley, 893 F.3d at 933.
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ALJ Hockensmith’s decision does not mention many pertinent facts, including (1) Plaintiff’s 

previous, pre-incarceration disability status and resulting SSI award; (2) the Administration’s

previous determination that Plaintiff was under a disability starting on November 1, 1995 due to a 

personality disorder and anxiety; (3) the Administration’s reconsideration on two occasions and 

finding on each occasion that Plaintiff remained eligible for SSI disability benefits; (4) Plaintiff 

remained eligible for SSI disability from the mid-1990s to 2009; and (5) the records from Plaintiff’s 

previous award and continuation of benefits were missing. The ALJ’s decision, moreover, does not 

cite to or refer to the evidence that establishes these historical facts. In 2014, a Quality Assurance 

Specialist for the Administration wrote:

Claimant is a 48 y/o female with a history of prior allowance on 2/6/96 with EOD 

[Established Onset Date] of 11/1/95 as a med-voc allowance for Personality d/o, 

Anxiety. She was continued on review 8/26/66 [sic] and 11/18/03. Benefits were 

suspended on 9/30/09, then 8/13/2010 and 12/03/2010 when clt went to Butler 

County Jail. Prior folder could not be located.

Id. at 239.

It was error for the ALJ to ignore such evidence of record because “fresh review is 

not blind review...,” Earley, 893 F.3d at 934, and “the findings of a previous ALJ remain relevant 

to a subsequent disability application.” Cowens v. Commissioner of Social Security, 2019 WL 

3947590, at *10 (S.D. Ohio 2019) (citing Earley, 893 F.3d at 934) (Litkovitz, M.J.), Report and 

Recommendation adopted, 2019 WL 3944433, at *1 (S.D. Ohio 2019) (Black, D.J.)). The 

principles advanced by res judicata support this:

What are those principles? Finality, efficiency, and the consistent treatment of like 

cases. An administrative law judge honors those principles by considering what an 

earlier judge found with respect to a later application and by considering that earlier 

record.

Earley, 893 F.3d at 933 (citing Drummond, 126 F.3d at 842; Albright v. Comm'r of Soc. Sec., 174 

F.3d 473, 478 (4th Cir. 1999)). ALJ Hockensmith did not honor these principals. He instead paid 
15

no heed to them by failing to consider any of the five historical facts (listed above) arising from 

Plaintiff’s pre-incarceration, long-term disability status.

The Commissioner points out that Plaintiff’s previous administrative file could not be 

located, leaving it unknown whether Plaintiff’s previous SSI application “was adjudicated by an 

ALJ or the Appeals Council or the specific reasons for Plaintiff’s entitlement to benefits.” (Doc. 

#13, PageID #1057). The Commissioner’s latter point is incorrect. Plaintiff was previously found 

disabled starting on November 5, 2006 due to her personality disorder and anxiety. See Doc. #6, 

PageID #239. These and other mental-health problems continued to be disabling for Plaintiff for 

about 14 years. See id. Although more would be known if the previous record had been located, 

enough was known at the time of ALJ Hockensmith’s decision to connect her second application 

with her previous disability status.

The Commissioner’s former point does not get far either. There is no meaningful difference 

between the disability finding by a previous ALJ’s or the Appeals Council’s decision concerning a 

past adjudicated time period. Both findings follow, and are based on, a trial-type hearing held by an 

ALJ. See Drummond v. Comm’r of Soc. Sec., 126 F.3d 837, 841 (6th Cir. 1997) (ALJ’s hearing 

approximates a judicial trial by resolving whether claimant is eligible for social security benefits.). 

Even if a significant difference existed, much remains presently unknown without the previous 

administrative record. This is problematic for the Commissioner in the circumstances of the present 

case because the previous administrative record was doubtlessly in the Administration’s custody at 

some point and because the present record merely contains a cryptic note stating, “Prior folder 

could not be located.” (Doc. #6, PageID #239). The present administrative record contains no hint 

about what the Administration did to search for the previous record, whether any meaningful search 

was done, or why those records could not be located. 
16

The present case, moreover, involves a “black swan—the unusual situation in which the 

individual wanted the administrative law judge to make the same finding on one issue that he had 

made in a prior ruling. Most applicants reapply only because the Administrationfound them not to 

be disabled.” Earley, 893 F.3d at 934. In this black-swan situation, it is fair to place the burden on 

the Administration to produce the previous administrative record or, at a minimum, to document its 

reasonably thorough search for it—after all, the Administration benefits from the absence of the 

previous records, and it is not Plaintiff’s fault that the records are missing. And placing the burden 

on the Commissioner in this situation advances the res-judicata principles—again, “[f]inality, 

efficiency, and consistency of treatment of like cases.” Id. at 933; cf. Drummond, 126 F.3d at 843 

(black-swan case placing the “burden ... on the Commissioner to prove changed circumstances and 

therefore escape the principles of res judicata.” (italics added)).

The ALJ’s error in turning a blind eye to the Administration’s previous disability 

determination was not harmless due to the substance of the information he overlooked, particularly 

that the Administration had previously found Plaintiff disabled and eligible for benefits for 

approximately 14 years due to her personality disorder and anxiety. In addition, the reason 

Plaintiff’s eligibility for benefits ended was her incarceration, not a determination that her health 

had improved to the point she was no longer under a disability. And it is counterintuitive to think 

that Plaintiff’s four to five years in prison improved her mental health such that she could engage in 

full-time work, even when she had never been able to do so for a sustained period of time before her 

incarceration. This information was relevant to whether Plaintiff was under a disability after her 

release from incarceration, and the ALJ’s failure to consider it was prejudicial to her.

Accordingly, for the above reasons, Plaintiff’s Statement of Errors is well taken.3

 3

In light of the above discussion, and the resulting need to remand this case, an in-depth analysis of 
17

A remand for further consideration is warranted for the Administration (1) to conduct a 

reasonable search for Plaintiff’s previous administrative, (2) to either add the previous 

administrative record to the present administrative record or certify that the previous administrative 

record is lost and not capable of reconstruction; (3) to consider, in the first instance, Plaintiff’s 

previous, long-term disability status and related evidence as part of a fresh review of whether she 

was under a disability starting on February 6, 2014.

IT IS THEREFORE ORDERED THAT:

1. The Commissioner’s non-disability finding is vacated;

2. No finding is made as to whether Plaintiff Cheryl Harris was under a

“disability” within the meaning of the Social Security Act;

3. This matter is REMANDED to the Social Security Administration

under sentence four of 42 U.S.C. § 405(g) for further consideration

consistent with this Decision and Entry; and

4. The case is terminated on the Court’s docket.

January 10, 2020 s/Sharon L. Ovington

Sharon L. Ovington

United States Magistrate Judge

 

Plaintiff’s other challenges to the ALJ’s decision is unwarranted.