United States District Court, D. Oregon
OPINION AND ORDER
A. RUSSO, UNITED STATES MAGISTRATE JUDGE.
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.
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.
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.
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).
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.
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.
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.
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. §
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.
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
[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.
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.
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.
Reopening Prior Application
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).
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.