United States District Court, D. Oregon
MERRILL SCHNEIDER Schneider Kerr Law Offices Attorneys for
J. WILLIAMS United States Attorney RENATA GOWIE Assistant
United States Attorney MICHAEL W. PILE Acting Regional Chief
Counsel SARAH ELIZABETH MOUM Special Assistant United States
Attorney Social Security Administration Attorneys for
OPINION AND ORDER
J. BROWN, United States Senior District Judge.
Tosha Dawn Hines seeks judicial review of the final decision
of the Commissioner of the Social Security Administration
(SSA) in which she denied Plaintiff's application for
Supplemental Security Income (SSI) under Title XVI of the
Social Security Act. This Court has jurisdiction to review
the Commissioner's final decision pursuant to 42 U.S.C.
reasons that follow, the Court AFFIRMS the
decision of the Commissioner and DISMISSES
previously filed for SSI benefits on May 21, 2010, and
alleged a disability onset date of October 1, 2009. Tr. 97.
Plaintiff's application was denied initially and on
reconsideration. Tr. 97. An Administrative Law Judge (ALJ)
held a hearing on June 11, 2012. Tr. 59-93. Plaintiff was
represented by an attorney at the hearing. On June 26, 2012,
the ALJ issued an opinion in which he found Plaintiff was not
disabled and, therefore, not entitled to
benefits. Tr. 97-106.
February 12, 2013, Plaintiff protectively filed another
application for SSI benefits in which Plaintiff alleges a
disability onset date of September 1, 2009. Tr.
19.Plaintiff's application was denied
initially and on reconsideration. An ALJ held a hearing on
April 7, 2015. Tr. 19, 37-58. Plaintiff and a vocational
expert (VE) testified. Plaintiff was represented by an
attorney at the hearing. On July 2, 2015, the ALJ issued an
opinion in which he found Plaintiff is not disabled and,
therefore, is not entitled to benefits. Tr. 19-31. On August
28, 2015, Plaintiff requested review by the Appeals Council.
Tr. 15. On October 27, 2016, the Appeals Council denied
Plaintiff's request to review the ALJ's decision, and
the ALJ's decision became the final decision of the
Commissioner. Tr. 1-4. See Sims v. Apfel, 530 U.S.
103, 106-07 (2000).
December 29, 2016, Plaintiff filed a Complaint in this Court
seeking review of the Commissioner's October 27, 2016,
was born on July 12, 1978. Tr. 30. Plaintiff was thirty-four
years old at the time of the hearing. Plaintiff obtained a
GED. Tr. 41. The ALJ found Plaintiff did not have any past
relevant work experience. Tr. 29.
alleges disability due to PTSD, depression, bipolar disorder,
anxiety/panic disorder, and agoraphobia. Tr. 111.
as noted, Plaintiff does not challenge the ALJ's summary
of the medical evidence. After carefully reviewing the
medical records, this Court adopts the ALJ's summary of
the medical evidence. See Tr. 22-29.
initial burden of proof rests on the claimant to establish
disability. Molina v. Astrue, 674 F.3d 1104, 1110
(9th Cir. 2012). To meet this burden a claimant must
demonstrate her inability “to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A). The ALJ must
develop the record when there is ambiguous evidence or when
the record is inadequate to allow for proper evaluation of
the evidence. McLeod v. Astrue, 640 F.3d 881, 885
(9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459-60 (9th Cir. 2001)).
district court must affirm the Commissioner's decision if
it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
42 U.S.C. § 405(g). See also Brewes v. Comm'r of
Soc. Sec. Admin., 682 F.3d 1157, 1161 (9th Cir. 2012).
Substantial evidence is “relevant evidence that a
reasonable mind might accept as adequate to support a
conclusion.” Molina, 674 F.3d. at
1110-11 (quoting Valentine v. Comm'r Soc. Sec.
Admin., 574 F.3d 685, 690 (9th Cir. 2009)). It is more
than a mere scintilla [of evidence] but less than a
preponderance. Id. (citing Valentine, 574
F.3d at 690).
is responsible for evaluating a claimant's testimony,
resolving conflicts in the medical evidence, and resolving
ambiguities. Vasquez v. Astrue, 572 F.3d 586, 591
(9th Cir. 2009). The court must weigh all of the evidence
whether it supports or detracts from the Commissioner's
decision. Ryan v. Comm'r of Soc. Sec., 528 F.3d
1194, 1198 (9th Cir. 2008). Even when the evidence is
susceptible to more than one rational interpretation, the
court must uphold the Commissioner's findings if they are
supported by inferences reasonably drawn from the record.
Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir.
2012). The court may not substitute its judgment for that of
the Commissioner. Widmark v. Barnhart, 454 F.3d
1063, 1070 (9th Cir. 2006).
The Regulatory Sequential Evaluation
One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity (SGA). 20 C.F.R. § 416.920(a)(4)(I). See
also Keyser v. Comm'r of Soc. Sec., 648 F.3d 721,
724 (9th Cir. 2011).
Two the claimant is not disabled if the Commissioner
determines the claimant does not have any medically severe
impairment or combination of impairments. 20 C.F.R. §
416.920(a)(4)(ii). See also Keyser, 648 F.3d at 724.
Three the claimant is disabled if the Commissioner determines
the claimant's impairments meet or equal one of the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity. 20 C.F.R.
§ 416.920(a)(4)(iii). See also Keyser, 648 F.3d
at 724. The criteria for the listed impairments, known as
Listings, are enumerated in 20 C.F.R. part 404, subpart P,
appendix 1 (Listed Impairments).
Commissioner proceeds beyond Step Three, she must assess the
claimant's residual functional capacity (RFC). The
claimant's RFC is an assessment of the sustained,
work-related physical and mental activities the claimant can
still do on a regular and continuing basis despite her
limitations. 20 C.F.R. § 416.920(e). See also
Social Security Ruling (SSR) 96-8p. “A ‘regular
and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule.” SSR 96-8p, at *1. In
other words, the Social Security Act does not require
complete incapacity to be disabled. Taylor v. Comm'r
of Soc. Sec. Admin., 659 F.3d 1228, 1234-35 (9th Cir.
2011)(citing Fair v. Bowen, 885 F.2d 597, 603 (9th
Four the claimant is not disabled if the Commissioner
determines the claimant retains the RFC to perform work she
has done in the past. 20 C.F.R. § 416.920(a)(4)(iv).
See also Keyser, 648 F.3d at 724.
Commissioner reaches Step Five, she must determine whether
the claimant is able to do any other work that exists in the
national economy. 20 C.F.R. § 416.920(a)(4)(v). See
also Keyser, 648 F.3d at 724-25. Here the burden shifts
to the Commissioner to show a significant number of jobs
exist in the national economy that the claimant can perform.
Lockwood v. Comm'r Soc. Sec. Admin., 616 F.3d
1068, 1071 (9th Cir. 2010). The Commissioner may satisfy this
burden through the testimony of a VE or by reference to the
Medical-Vocational Guidelines (or the grids) set forth in the
regulations at 20 C.F.R. part 404, subpart P, appendix 2. If
the Commissioner meets this burden, the claimant is not
disabled. 20 C.F.R. § 416.920(g)(1).
One the ALJ found Plaintiff has not engaged in substantial
gainful activity since February 12, 2013, the application
date. Tr. 21.
Two the ALJ found Plaintiff has the severe impairments of
post-traumatic stress disorder (PTSD), affective disorder
(described as bipolar disorder and depression), personality
disorder, and carpal-tunnel syndrome. Tr. 22.
Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one
of the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1. Tr. 22-24. The ALJ found Plaintiff has the RFC to
perform light work. The ALJ also found Plaintiff will need to
alternate positions throughout the eight-hour work day and to
change between sitting and standing every 30 minutes. In
addition, the ALJ found Plaintiff should be limited to
simple, short, repetitive tasks and have only brief
interaction with the public. Tr. 24.
Four the ALJ concluded transferability of job skills is not
an issue because Plaintiff does not have past relevant work.
Five the ALJ found, based on Plaintiff's age, education,
work experience, and RFC, that Plaintiff could perform other
work in the national economy. Tr. 30-31. The ALJ cited two
examples of such work that were identified by the VE: office
helper and photocopy-machine operator. Tr. 30. Thus, the ALJ
concluded Plaintiff is not disabled and, therefore, is not
entitled to benefits. Tr. 31.
contends the ALJ erred when he (1) improperly rejected
Plaintiff's subjective symptom testimony, (2) failed to
find Plaintiff suffered other severe impairments at Step Two,
(3) improperly evaluated Plaintiff's medical evidence,
(4) improperly rejected the testimony of third-party
witnesses, and (5) improperly found at Step Five that
Plaintiff could perform other work in the economy. Plaintiff
also contends the evidence submitted to the Appeals Council
supported a determination that Plaintiff is disabled contrary
to the ALJ's decision, and the Appeals Council erred when
it failed to find Plaintiff is disabled.
Commissioner contends the Court should affirm the ALJ's
decision because the doctrine of res judicata
applies to the prior ALJ's June 26, 2012, opinion, and,
therefore, the presumption of continuing nondisability
applies based on the ALJ's conclusion in his opinion that
Plaintiff is not disabled.
The doctrine of res judicata applies to
Commissioner contends res judicata applies to the
prior ALJ's June 26, 2012, determination that Plaintiff
is not disabled, and, therefore, further review of
Plaintiff's claim is unnecessary. The Commissioner argues
Plaintiff failed to show changed circumstances at the April
7, 2015, hearing before the current ALJ and on appeal to this
Court, and, therefore, Plaintiff waived any argument that the
current ALJ erred when he found there was not any evidence
that Plaintiff's circumstances had changed since June 26,
however, contends she provided new and material evidence at
the April 7, 2015, hearing before the ALJ and to the Appeals
Council on August 28, 2015, that showed a change in
Plaintiff's circumstances and that such evidence
contradicted the prior ALJ's decision.
Social Security Act provides “[t]he findings and
decisions of the Commissioner of Social Security after a
hearing shall be binding upon all individuals who were
parties to such hearing.” 42 U.S.C. § 405(h). In
Chavez v. Bowen the Ninth Circuit observed
“the principles of res judicata apply to
administrative decisions, although the doctrine is applied
less rigidly to administrative proceedings than to ...