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Hall v. Berryhill

United States District Court, D. Oregon

March 2, 2018

MELINDA N. HALL, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Melinda 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.


         Plaintiff was born in November 1972. Tr. 327, 845.[1] 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).

         Plaintiff again applied for SSI and DIB in July 2012, with an amended alleged onset date of May 1, 2012.[2] 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.


         The ALJ 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 impairment. Id.

         Because 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 limitations:

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.

Tr. 30.

         At step 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.


         A 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).


         Plaintiff 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 evaluation.

         I. Res Judicata

         Plaintiff 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).

         Plaintiff 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, 2012.

         Tr. 25. 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. 24-25.

         Plaintiff, 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.

         The 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.[3] 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.

         On this 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 issue.

         II. Subjective Symptom Testimony

         Plaintiff 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.”[4] 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 citation omitted).

         The 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 of ...

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