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Eva G. v. Berryhill

United States District Court, D. Oregon

July 13, 2018

BRITTA EVA G., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her application for Title II Disability Insurance Benefits (“DIB”) under the Social Security Act (“Act”). For the reasons set forth below, the Commissioner's decision is reversed and remanded for further consideration.


         On March 11, 2011, plaintiff applied for DIB, alleging disability beginning June 15, 2009. Tr. 235. On December 19, 2012, plaintiff's application was denied without further review. Tr. 127. On April 9, 2014, plaintiff re-applied for DIB, alleging disability beginning February 16, 2010. Tr. 100-01. Her application was denied initially and upon reconsideration. Tr. 100-110, 111-125. On February 10, 2016, a hearing was held before an Administrative Law Judge (“ALJ”). Tr. 45. Plaintiff was represented by counsel and testified, as did a vocational expert (“VE”). Tr. 45-98. On March 15, 2016, the ALJ issued a decision finding plaintiff not disabled within the meaning of the Act. Tr. 19-38. After the Appeals Council denied her request for review, plaintiff filed a complaint in this court. Tr. 1-3.


         Born on January 22, 1966, plaintiff was 44 years old on the alleged onset date and 50 years old at the time of the hearing. Tr. 50, 100. She obtained a G.E.D. and served more than five years in the United States Air Force. Tr. 51. Plaintiff worked as a self-employed nail technician for sixteen years. Tr. 52. She alleges disability due to PTSD, scoliosis, and chronic knee, hip and back pain. Tr. 100, 103.


         The 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. Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989). Substantial evidence is “more than a mere scintilla. It 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) (citation and internal quotations omitted). The court must weigh both the evidence that supports and detracts from the [Commissioner's] conclusions.” 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). The initial burden of proof rests upon the claimant to establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th Cir. 1986). To meet this burden, the claimant must demonstrate an “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected … to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A).

         The Commissioner has established a five step sequential process for determining whether a person is disabled. Bowen v. Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R. § 404.1520. First, the Commissioner determines whether a claimant is engaged in “substantial gainful activity.” Yuckert, 482 U.S. at 140; 20 CFR § 404.1520(b). If so, the claimant is not disabled.

         At step two, the Commissioner evaluates whether the claimant has a “medically severe impairment or combination of impairments.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment, she is not disabled.

         At step three, the Commissioner determines whether the claimant's impairments, either singly or in combination, meet or equal “one of a number of listed impairments that the [Commissioner] acknowledges are so severe as to preclude substantial gainful activity.” Yuckert, 482 U.S. at 140-41; 20 C.F.R. § 404.1520(d). If so, the claimant is presumptively disabled; if not, the Commissioner proceeds to step four. Yuckert, 482 U.S. at 141.

         At step four, the Commissioner resolves whether the claimant can still perform “past relevant work.” 20 C.F.R. § 404.1520(f). If the claimant can work, she is not disabled; if she cannot perform past relevant work, the burden shifts to the Commissioner. At step five, the Commissioner must establish that the claimant can perform other work existing in significant numbers in the national or local economy. Yuckert, 482 U.S. at 141-42; 20 C.F.R. § 404.1520(g). If the Commissioner meets this burden, the claimant is not disabled. 20 C.F.R. § 404.1566.


         At step one of the five step sequential evaluation process outlined above, the ALJ found plaintiff had not engaged in substantial gainful activity since the alleged onset date. Tr. 22. At step two, the ALJ determined plaintiff had the following severe impairments: “degenerative disc disease (DDD) of the lumbosacral spine; scoliosis; spondylosis of the cervical spine; status-post total knee arthroscopy (TKA), 2014; trochanteric bursitis; and chronic pain syndrome.” Tr. 22. At step three, the ALJ found that plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 23.

         Because plaintiff did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments might affect her ability to work. Tr. 23, 24-36. The ALJ determined plaintiff had the residual functional capacity (“RFC”) to perform light work as defined by 20 C.F.R. § 404.1567(b) with the following limitations:

[S]he lifts and/or carries 20 pounds occasionally and 10 pounds frequently, and sits for six hours in an eight-hour day, but stands or walks for no more than three hours total in an eight hour day; occasionally climbs ramps and stairs, and occasionally stoops, kneels, crouches, and crawls; never climbs ladders; avoids concentrated exposure to vibration; avoids workplace hazards; and she can understand, remember, and carry out simple routine repetitive tasks.

Tr. 23.

         At step four, the ALJ determined plaintiff could not perform her past relevant work. Tr. 36-37. At step five, the ALJ found plaintiff could perform a significant number of jobs existing in the national economy: small products assembler; electrical accessories assembler; and electronics worker. Tr. 37.


         Plaintiff argues the ALJ erred by: (1) reviewing the merits of prior evidence without explicitly reopening the corresponding prior disability application; (2) failing to provide legally sufficient reasons for rejecting plaintiff's testimony; (3) failing to provide legally sufficient reasons for rejecting the opinions of multiple doctors and other providers; (4) failing to provide legally sufficient reasons for rejecting the Veteran Administration's (“VA”) disability determination; and (5) failing to order payment of benefits to plaintiff.

         I. Reopening Prior Application

         Plaintiff argues the ALJ de facto reopened plaintiff's prior unfavorable disability determination by reviewing medical evidence from that previously adjudicated period. The doctrine of res judicata applies to administrative hearings, and “when a claimant reapplies for disability benefits after an earlier denial, that earlier denial precludes the claimant from arguing that he was disabled during the period covered by the earlier decision.” Culley v. Astrue, 2013 WL 1901012 at *7 (D. Or. April 2, 2013) (quoting Green v. Heckler, 803 F.2d 528, 530 (9th Cir. 1986)). However, when an ALJ considers a previous disability claim on the merits, the claim is de facto reopened and res judicata does not apply. Id. (citing Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir. 2001)); see also Lester v. Chater, 81 F.3d 821, 827 n.3 (9th Cir. 1995).

         The ALJ did not de facto reopen plaintiff's prior disability determination. The ALJ noted that “[b]y alleging an onset … within the period previously adjudicated, the claimant is making an implied request [to] reopen these determinations.” Tr. 19. The ALJ then explicitly stated she “decline[d] to reopen the prior determinations, ” and that “[a]ny reference to evidence in the period adjudicated is intended to aid in clarifying the longitudinal record … with no intent to reopen these final and binding determinations.” Tr. 19. A prior determination is not reopened when the ALJ expressly applies res judicata and refuses to reopen the prior determination. Little v. Comm'r Soc. Sec. Admin., 780 F.Supp.2d 1143, 1155 (9th Cir. 2011). Additionally, the ALJ's review of plaintiff's medical history to clarify the longitudinal record does not amount to a de facto reopening. Culley, 2013 WL 1901012 at *8. Furthermore, plaintiff alleged a disability onset date of June 15, 2009 in her previous application, while in her present application plaintiff alleged a disability onset date of February 16, 2010. Tr. 235, 242. The fact the plaintiff's disability “applications have distinct onset dates weighs against finding a de facto reopening.” Culley, 2013 WL 1901012 at *7. Thus, the ALJ's review of the medical record did not constitute a de facto reopening of plaintiff's prior application.

         II. ...

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