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Hines v. Berryhill

United States District Court, D. Oregon

January 25, 2018

TOSHA DAWN HINES, Plaintiff,
v.
NANCY A. BERRYHILL, [1] Acting Commissioner, Social Security Administration, Defendant.

          MERRILL SCHNEIDER Schneider Kerr Law Offices Attorneys for Plaintiff.

          BILLY 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 Defendant.

          OPINION AND ORDER

          ANNA J. BROWN, United States Senior District Judge.

         Plaintiff 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. § 405(g).

         For the reasons that follow, the Court AFFIRMS the decision of the Commissioner and DISMISSES this matter.

         ADMINISTRATIVE HISTORY

         Plaintiff 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.[2] Tr. 97-106.

         On 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.[3]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).

         On December 29, 2016, Plaintiff filed a Complaint in this Court seeking review of the Commissioner's October 27, 2016, final decision.

         BACKGROUND

         Plaintiff 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.

         Plaintiff alleges disability due to PTSD, depression, bipolar disorder, anxiety/panic disorder, and agoraphobia. Tr. 111.

         Except 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.

         STANDARDS

         The 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)).

         The 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).

         The ALJ 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).

         DISABILITY ANALYSIS

         I. The Regulatory Sequential Evaluation

         At Step 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).

         At Step 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.

         At Step 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).

         If the 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 Cir. 1989)).

         At Step 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.

         If the 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).

         ALJ'S FINDINGS

         At Step One the ALJ found Plaintiff has not engaged in substantial gainful activity since February 12, 2013, the application date. Tr. 21.

         At Step 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.

         At Step 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.

         At Step Four the ALJ concluded transferability of job skills is not an issue because Plaintiff does not have past relevant work. Tr. 30.

         At Step 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.

         DISCUSSION

         Plaintiff 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.

         The 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.

         I. The doctrine of res judicata applies to Plaintiff's claim.

         The 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, 2012.

         Plaintiff, 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.

         A. Standards

         The 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 ...


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