United States District Court, D. Oregon
MELINDA N. HALL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
OPINION AND ORDER
A. RUSSO UNITED STATES MAGISTRATE JUDGE.
N. Hall (“plaintiff”) seeks judicial review of
the final decision of the Commissioner of the Social Security
Administration (“Commissioner”) denying
Supplemental Security Income (“SSI”) and
disability insurance benefits (“DIB”) under
Titles II and XVI of the Social Security Act (“the
Act”). All parties have consented to allow a Magistrate
Judge to enter final orders and judgment in this case in
accordance with Fed. R. Civ. P. 73 and 28 U.S.C.
§ 636(c). See (doc. 14). For the reasons set
forth below, the decision of the Commissioner is REVERSED and
REMANDED for further proceedings.
was born in November 1972. Tr. 327, 845. Plaintiff first
applied for SSI and DIB in February 2010, alleging disability
with an onset date of March 1, 2007. Tr. 966. On April 23,
2012, plaintiff received a partially favorable decision
finding her disabled from October 21, 2009, through September
30, 2011, but subsequently able to sustain employment
thereafter. Tr. 22; see also Tr. 980-81. Plaintiff
did not appeal that decision. Tr. 142-43; Pl.'s Op. Br.
at 5 (doc. 27).
again applied for SSI and DIB in July 2012, with an amended
alleged onset date of May 1, 2012. Tr. 22, 155-56, 937.
Plaintiff alleged disability based upon: posttraumatic stress
disorder (“PTSD”), depression, anxiety, bulging
discs in her back, sleep apnea, arthritis, right hip and leg
pain, narrowing of her spine, hyperthyroid, insomnia, and
asthma. Tr. 22, 157. Plaintiff completed the tenth grade, and
later her GED. Tr. 30, 89, 370. She has past relevant work as
a cashier. Tr. 41, 90, 122. Her applications were denied
initially and upon reconsideration. Tr. 157-80; 183-208. An
Administrative Law Judge (“ALJ”) held hearings on
May 12, 2014, and January 8, 2015, and on January 30, 2015,
issued a decision finding plaintiff not disabled. Tr. 22-42;
48-78; 931-61. On June 21, 2016, the Appeals Council denied
review, making the ALJ's decision the final decision of
the Commissioner. Tr. 1-6. This appeal followed.
performed the five step sequential analysis for determining
whether a person is disabled. Bowen v. Yuckert, 482
U.S. 137, 140 (1987); 20 C.F.R. §§ 404.1520,
416.920. At step one, the ALJ found plaintiff had not engaged
in substantial gainful activity since the date of her
previous partially favorable decision. Tr. 27. At step two,
the ALJ determined the following impairments were medically
determinable and severe: “obesity, degenerative disc
disease, asthma, degenerative joint disease, status post
carpal tunnel release, anxiety, and depression.”
Id. At step three, the ALJ determined
plaintiff's impairments, neither individually nor in
combination, met or equaled the requirements of a listed
the ALJ did not establish presumptive disability at step
three, the ALJ continued to evaluate how plaintiff's
impairments affected her ability to work. The ALJ resolved
plaintiff had the residual functional capacity
(“RFC”) to perform light work with the following
She can lift, carry, push, and pull 20 pounds occasionally
and 10 pounds frequently. She needs a sit stand option at
will (up to a total of six hours standing, walking and
sitting each) in an eight-hour day. She can occasionally
climb ramps and stairs. She should not climb ladders, ropes
and scaffolds. She can occasionally stoop, kneel, crouch and
crawl. She should avoid even moderate exposure to extreme
cold and to hazards, such as exposed machinery and
unprotected heights. She should avoid concentrated exposure
to vibration and to respiratory irritants, such as fumes
odors, dusts, gases and poor ventilation. She can only
frequently (not constantly) finger and handle with right
upper extremity. She can occasionally reach with the right
upper extremity. She can understand and remember simple
instructions and complete simple (SVP 1 and 2) tasks. She
should have rare (10 percent of the time or less) contact
with the general public.
four, the ALJ determined plaintiff could not return to her
past relevant work as a cashier. Tr. 41. At step five, the
ALJ found, based on the RFC and the vocational expert
(“VE”) testimony, a significant number of jobs
existed in the national and local economy such that plaintiff
could sustain employment despite her impairments. Tr. 41-42.
Specifically, the ALJ found plaintiff could perform the jobs
of price marker and small products assembler. Tr. 42.
district court must affirm the Commissioner's decision if
the decision is based on proper legal standards and the legal
findings are supported by substantial evidence in the record.
42 U.S.C. § 405(g); Batson v. Comm'r, 359
F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence
“means such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971)
(internal citation omitted). In reviewing the
Commissioner's alleged errors, a court must weigh
“both the evidence that supports and detracts from the
[Commissioner's] conclusion.” Martinez v.
Heckler, 807 F.2d 771, 772 (9th Cir. 1986). Variable
interpretations of the evidence are insignificant if the
Commissioner's interpretation is rational. Burch v.
Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). When the
evidence before the ALJ is subject to more than one rational
interpretation, a court must defer to the ALJ's
conclusion. Batson, 359 F.3d at 1198 (internal
citation omitted). The reviewing court, however, cannot
affirm the Commissioner's decision on grounds the agency
did not invoke in making its decision. Stout v.
Comm'r, 454 F.3d 1050, 1054 (9th Cir. 2006).
Finally, the court may not reverse an ALJ's decision on
account of an error that is harmless. Id. at
1055-56. “[T]he burden of showing that an error is
harmful normally falls upon the party attacking the
agency's determination.” Shinseki v.
Sanders, 556 U.S. 396, 409 (2009).
argues the ALJ erred by: (1) erroneously finding no material
change in circumstances since the date of her prior partially
favorable decision; (2) improperly discrediting her
subjective symptom testimony; (3) improperly weighing the
medical evidence; and (4) failing to meet the
Commissioner's step five burden of the sequential
assigns error to the ALJ's finding of no material change
in her circumstances since her prior partially favorable
decision in April 2012. The Ninth Circuit has held that
principles of res judicata apply to disability administrative
decisions. Chavez v. Bowen, 844 F.2d 691, 693 (9th
Cir. 1988). Where a prior ALJ has made a finding of
non-disability, the claimant has an obligation to come
forward with evidence of “changed circumstances”
in order to overcome a presumption of continuing
non-disability. Id. A previous ALJ's findings
concerning residual functional capacity, education, and work
experience are entitled to some res judicata consideration
and such findings cannot be reconsidered by a subsequent ALJ
absent new information not presented to the first ALJ.
Id. at 694; see also Stubbs-Danielson
v. Astrue, 539 F.3d 1169, 1173 (9th Cir. 2008).
The presumption does not apply, however, “where the
claimant raises a new issue, such as the existence of an
impairment not considered in the previous application.”
Maddess v. Astrue, No. 3:11-cv-06177-KI, 2012 WL
3260268, at *3 (D. Or. Aug. 8, 2012) (citing Vasquez v.
Astrue, 572 F.3d 586, 597 (9th Cir. 2009)); see
also Acquiescence Ruling (“AR”) 97-4(9),
available at 1997 WL 742758 at *3 (changed
circumstances can include “a change in the
claimant's age category , an increase in the severity
of the claimant's impairment(s), the alleged
existence of an impairment(s) not previously considered,
or a change in the criteria for determining
disability.”) (emphasis added).
does not seem to dispute the finality of her April 23, 2012,
partially favorable disability claim. See, e.g.,
Pl.'s Op. Br. at 5-6; Tr. 981. As to the appeal before
this Court, the ALJ found:
Born in [November] 1972, the claimant is a 42-year-old woman
with the equivalent of a high school education. She has not
worked since May 2012. There has been no material change of
circumstances regarding the claimant's age, education, or
past relevant work experience since the prior ALJ decision on
April 23, 2012.
In the prior hearing decision, [the previous ALJ] found the
claimant's ability to perform basic activities of work
was significantly limited by the “severe”
impairments of degenerative disc disease, obesity, anxiety,
depression, status post carpal tunnel syndrome, degenerative
disc disease, and asthma. There is no evidence and nothing
credible in the testimony of the claimant to support a
worsening of her severe impairments that would represent a
material change in circumstance.
The medical evidence presented by the claimant does not show
a material change in her impairments of [sic] since April 23,
After finding no material change in circumstance, the ALJ
proceeded to apply the five step sequential evaluation. Tr.
27-42. At step two the ALJ found the same
“severe” impairments as the previous ALJ.
Compare Tr. 27 with Tr. 970. Similarly, the
RFCs from the 2012 and 2015 decisions were strikingly
similar. Compare Tr. 30 with Tr. 978.
Finally, the ALJ ultimately found plaintiff failed to
“show a material change in her impairment” since
the date of her prior partially favorable decision. Tr.
however, asserts the ALJ “failed to properly evaluate
changed circumstances.” Pl.'s Op. Br. at 6.
Specifically, plaintiff points to “mild spondylotic
changes in the L-spine and no evidence of herniation
foraminal stenosis” in 2008, but by May 2012 imaging
scans “revealed she had a mild diffuse disc protrusion
at ¶ 2-3 and mild to moderate disc protrusion at ¶
3-4 had increased.” Id. at 6-7. The
Commissioner responds the ALJ properly found no material
change in circumstances because plaintiff's
“symptoms have remained essentially unchanged.”
Def.'s Br. at 3 (doc. 28). Additionally, the Commissioner
asserts, plaintiff “has not demonstrated that she was
prejudiced by the ALJ's findings[.]” Id.
Court finds the ALJ incorrectly applied the Chavez
presumption of continuing non-disability. The record contains
substantial evidence that plaintiff had additional mental
impairments not discussed in the first ALJ's
decision. Plaintiff alleged disability in her
current application based on PTSD and insomnia. Tr. 23, 157,
183. In contrast, the ALJ in plaintiff's first disability
application did not find PTSD and insomnia to be severe at
step two nor did the ALJ reference those impairments in that
decision. Tr. 970; Tr. 965-87.
record, plaintiff's PTSD and insomnia allegations are
supported by diagnoses proffered by multiple medical sources
in support of her second application as well as acknowledged
in the ALJ's decision. See, e.g., Tr. 34 (citing
Tr. 889) (diagnosing PTSD); Tr. 37 (citing Tr. 908) (same).
Even if plaintiff's newly alleged impairments are not
severe, she has defeated the presumption of continuing
non-disability by raising a new issue in her later
application. See, e.g., Vasquez, 572 F.3d
at 598 n.9 (9th Cir. 2009) (noting “all an applicant
has to do to preclude the application of res judicata is
raise a new issue in the later proceeding”); Lester
v. Chater, 81 F.3d 821, 828 (9th Cir. 1995) (finding
evidence that claimant's application alleged a mental
impairment not raised in previous application nor addressed
in the decision denying that application was sufficient to
rebut presumption of non-disability). Thus, the ALJ erred in
applying the presumption of continuing non-disability by
failing to consider plaintiff's PTSD and insomnia in her
second claim. See Stout, 454 F.3d at 1056
(a reviewing court cannot consider an error harmless
“unless it can confidently conclude that no reasonable
ALJ . . . could have reached a different conclusion”)
(citation omitted); see also Light v. Soc. Sec.
Admin., 119 F.3d 789, 792 (9th Cir. 1997) (finding
presumption of non-disability rebutted by evidence of
diagnosis of new impairment). The ALJ is reversed as to this
Subjective Symptom Testimony
assigns error to the ALJ's evaluation of her subjective
symptom testimony. When a claimant has medically documented
impairments that could reasonably be expected to produce some
degree of the symptoms complained of, and the record contains
no affirmative evidence of malingering, “the ALJ can
reject the claimant's testimony about the severity of . .
. symptoms only by offering specific, clear and convincing
reasons for doing so.” Smolen v. Chater, 80
F.3d 1273, 1281 (9th Cir. 1996) (internal citation omitted).
A general assertion the claimant is not credible is
insufficient; the ALJ must “state which . . . testimony
is not credible and what evidence suggests the complaints are
not credible.” Dodrill v. Shalala, 12 F.3d 915,
918 (9th Cir. 1993). The reasons proffered must be
“sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the
claimant's testimony.” Orteza v. Shalala,
50 F.3d 748, 750 (9th Cir. 1995) (internal citation omitted).
If the ALJ's finding regarding the claimant's
subjective symptom testimony is “supported by
substantial evidence in the record, [the court] may not
engage in second-guessing.” Thomas v.
Barnhart, 278 F.3d 947, 959 (9th Cir. 2002) (internal
Commissioner argues the ALJ permissibly discounted
plaintiff's subjective symptom testimony based upon: (A)
activities of daily living; (B) inconsistent statements; (C)
sporadic work history; (D) criminal history involving a crime