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Sexton v. Colvin

United States District Court, D. Oregon, Portland Division

August 14, 2014

STACEY J. SEXTON, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Merrill Schneider, Schneider Kerr & Gibney Law Offices, Portland, OR, Attorney for Plaintiff.

S. Amanda Marshall, United States Attorney, District of Oregon, Ronald K. Silver, United States Attorneys Office, Portland, OR Jeffrey E. Staples, Office of General Counsel Social Security Administration, Seattle, WA, Attorneys for Defendant.


GARR M. KING, District Judge.

Plaintiff Stacey Sexton brings this action pursuant to section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g), to obtain judicial review of the Commissioner's decision denying plaintiff's second application for disability insurance benefits ("DIB"). The Commissioner filed a Motion to Dismiss [13] because Sexton did not obtain a final decision after a hearing, as required for judicial review under the Social Security Act. For the reasons below, I grant the motion.


Sexton's insured status for DIB expired on December 31, 1996. She filed for DIB the first time on December 15, 1997. The application was denied initially on April 3, 1998 and on reconsideration on June 10, 1998. Sexton did not appeal.

Sexton filed a second application for DIB on June 4, 2010, which was denied initially on July 19, 2010 and on reconsideration on September 18, 2010. Both notices explain Sexton did not qualify for benefits because the second application concerned the same issues decided when her earlier claim was denied, and she did not provide any information to show there was a change in her health before December 1996.

Sexton's counsel filed a request for a hearing on September 30, 2010. Sexton and counsel appeared at a hearing on January 20, 2012. Sexton's prior file was purged except for a psychodiagnostic evaluation conducted by Jane Starbird, Ph.D., which was received by DDS on March 25, 1998. At the 2012 hearing, Sexton submitted reports from four different examiners and three treatment providers. The ALJ found the evidence immaterial. The bulk of the records were from well after her date last insured. Records from Western Internal Medicine of treatment prior to Sexton's date last insured were for transient physical conditions with no evidence they lasted at a severe level for twelve continuous months. Sexton also provided treatment records from Pamela Daniels, Psy.D., dated February 8, 1998. The ALJ compared the records from the two psychologists and observed that Dr. Starbird did not provide an opinion on Sexton's employability but Dr. Daniels opined Sexton "could probably complete work tasks with training and support." Weigel Decl. Ex. 3A, at 6. Both psychologists diagnosed Sexton with posttraumatic stress disorder, major depression, extreme anxiety, and drug problems. Dr. Daniels also diagnosed Sexton with probable attention deficit hyperactivity disorder. The ALJ concluded the findings and opinions made by Dr. Daniels were consistent with those made by Dr. Starbird, making Dr. Daniels' notes cumulative and not material.

On January 26, 2012, the ALJ issued a Notice and Order dismissing Sexton's request for hearing. The ALJ gave res judicata effect to the June 10, 1998 reconsideration of the denial of the first application of DIB because Sexton did not provide new and material evidence relating to her alleged disability with an onset date before December 31, 1996.

Sexton sought Appeals Council review of the ALJ's dismissal on February 25, 2013. On October 22, 2013, the Appeals Council dismissed her request for a hearing. It explained there was no basis in the regulations to reopen the prior determination because Sexton did not provide any new and material evidence on the issue of disability. The Appeals Council concluded the ALJ should have dismissed Sexton's request for a hearing based on the doctrine of res judicata; the January 26, 2012 decision of the ALJ had no effect; and the determination dated June 10, 1998 stands as the final decision of the Commissioner. Sexton then filed her Complaint with this court.


I. Res Judicata

The Commissioner argues I should dismiss Sexton's Complaint because the Appeals Council dismissed her hearing request on the grounds of res judicata. In the Commissioner's view, she did not obtain a final decision after a hearing and is not entitled to judicial review.

Judicial review of claims arising under Title II or Title XVI of the Social Security Act is authorized and limited by 42 U.S.C. § 405(g). Section 405(g) "clearly limits judicial review to a particular type of agency action, a final decision of the Secretary made after a hearing. '" Subia v. Comm'r of Social Sec. , 264 F.3d 899, 902 (9th Cir. 2001) (quoting Califano v. Sanders , 430 U.S. 99, 108, 97 S.Ct. 980 (1977)). The dismissal of the request for a hearing, as in Sexton's situation, is not an ALJ's final decision after a hearing. See id. (ALJ dismissed request for hearing after claimant and counsel failed to appear without ...

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