United States District Court, D. Oregon
Rory Linerud, LINERUD LAW FIRM, Salem, Oregon, Attorney for Plaintiff.
S. Amanda Marshall, UNITED STATES ATTORNEY, District of Oregon, Adrian L. Brown, ASSISTANT UNITED STATES ATTORNEY, Portland, Oregon, Courtney Garcia, SPECIAL ASSISTANT UNITED STATES ATTORNEY Office of the General Counsel Social Security Administration, Seattle, Washington, Attorneys for Defendant.
OPINION & ORDER
MARCO A. HERNANDEZ, District Judge.
Plaintiff Wendi Fisher brings this action seeking judicial review of the Commissioner's decision to deny disability insurance benefits (DIB). Defendant contends that this Court lacks subject matter jurisdiction to review the ALJ's decision not to reopen a prior claim, and that the claim should be dismissed. Defendant also argues that the ALJ's application of res judicata was appropriate. Finally, Defendant argues that to the extent the Court reviews the Commissioner's decision, it should be affirmed.
I agree with Defendant that this Court lacks subject matter jurisdiction to review the ALJ's denial of Plaintiff's request to reopen her prior claim. Absent an argument by Plaintiff that the ALJ erred in applying the doctrine of res judicata to bar reconsideration of the issues and facts finally decided in the prior decision, I also lack jurisdiction to review the ALJ's determination that res judicata applied. Furthermore, to the extent the ALJ erred in regard to the time period June 1, 2004 to September 29, 2004, any error was harmless.
Because the issue of whether this Court has subject matter jurisdiction is intertwined with Plaintiffs successive disability benefits applications, I address the procedural history in some detail. Plaintiff filed for supplemental security income (SSI) on June 23, 2006. Tr. 41 (Mar. 24, 2009 Decision of Administrative Law Judge (ALJ) Charles Evans describing procedural history; the June 23, 2006 SSI application itself is not in the Administrative Record). In that application, she alleged disability beginning May 1, 2006. Id . Her claim was denied initially on September 8, 2006, and upon reconsideration on January 25, 2007. Id . Plaintiff requested a hearing and on February 12, 2009 appeared, with counsel, before ALJ Evans. Id . At that hearing, Plaintiff requested that her alleged onset date be amended to September 30, 2004. Id . She also indicated her intent to pursue a DIB claim as well as the SSI claim. Id . ALJ Evans noted in a March 24, 2009 written decision that Plaintiff filed a DIB application after the February 12, 2009 hearing with an accompanying request to accelerate the DIB claim to a hearing level to be decided in conjunction with the SSI claim. Id.
In his March 24, 2009 written decision, ALJ Evans concluded that Plaintiff was not entitled to SSI or DIB. Tr. 41-49. In regard to her DIB claim, ALJ Evans stated that Plaintiffs date of last insured was September 30, 2004. Tr. 41. Thus, to be entitled to DIB, Plaintiff had to establish disability on or before that date. Id . ALJ Evans went through the five-step sequential evaluation and found that Plaintiff had severe impairments of shoulder pain, neck pain, back pain, obesity, and migraine headaches causing nausea and vomiting. Tr. 43. After determining her residual functional capacity, he concluded that she could perform sedentary work, with specified limitations. Tr. 48-49. Based on the testimony of a vocational expert, ALJ Evans concluded that Plaintiff could perform other work in the national economy. Tr. 48-49. Thus, he concluded that she had not been under a disability as defined by the Social Security Act from September 29, 2004 through March 24, 2009, the date of his decision. Tr. 49.
Plaintiff did not appeal this decision, making it the final and binding decision of the Commissioner of Social Security. Tr. 17. On March 3, 2009, between the date of her February 12, 2009 hearing and the ALJ's March 24, 2009 written decision denying her claims for SSI and DIB, Plaintiff filed an application for DIB. 125-31. In that March 3, 2009 DIB application, Plaintiff alleged an onset date of September 29, 2004. Tr. 125. On July 2, 2009, after ALJ Evans's March 24, 2009 written decision, she amended her March 3, 2009 DIB application to allege an onset date of June 1, 2004. Tr. 132-33.
The March 3, 2009 DIB application was denied initially on October 1, 2009, and on reconsideration on May 19, 2010. Tr. 50, 56-60 (initial denial), 52, 67-73 (reconsideration).
Plaintiff requested a hearing before an ALJ and then appeared, with counsel, before ALJ Rudy Murgo on December 2, 2011. Tr. 28-37. During the hearing, ALJ Murgo confirmed that "[w]hile all this was pending in our system, " Plaintiff was awarded SSI in a January 14, 2011 Order, with benefits back to June 2009 and that she was still collecting those benefits. Tr. 31-32. ALJ Murgo then referred to ALJ Evans's prior decision, although he erroneously stated that it was dated April 24, 2009 when it was actually dated March 24, 2009. Tr. 32. ALJ Murgo confirmed that ALJ Evans's decision had not been appealed. Id.
At this point, given that Plaintiff was receiving disability benefits, the ALJ directly asked Plaintiffs counsel "what are we doing today?" to which Plaintiffs counsel responded that Plaintiff "found what we considered, or speculated would be new material of evidence that would justify reopening the previous judge's decision." Tr. 33. ALJ Murgo then asked Plaintiffs counsel to describe the new and material evidence which counsel did. Id.
After listening to the description of the evidence, ALJ Murgo confirmed that Plaintiff was asking him to find the evidence "new and material" and "allow a new hearing." Tr. 34. ALJ Murgo confirmed Plaintiffs position again by asking "what you're asking me to do, then, is reach a legal decision as to whether I believe that's new and material evidence, correct?" to which Plaintiffs counsel responded "[Y]es, your honor." Id . The ALJ continued:
So either way I'm going to say, "Yes it is, " in which case the case is going back to DDS for their first shot, or I'm going to say, "No, it isn't, " in which case, if you wish, you can appeal that issue to the Appeals Council, U.S. District Court, and back to the Ninth Circuit, which came up with this res judicata rule anyway. So I don't see any need to take your client's ...