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Gilbert v. Berryhill

United States District Court, W.D. Washington, Tacoma

January 30, 2017

NANCY BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.


          David W. Christel, United States Magistrate Judge.

         Plaintiff David Gilbert filed this action, pursuant to 42 U.S.C. § 405(g), for judicial review of Defendant's denial of his application for disability insurance benefits (“DIB”). Pursuant to 28 U.S.C. § 636(c), Federal Rule of Civil Procedure 73 and Local Rule MJR 13, the parties have consented to have this matter heard by the undersigned Magistrate Judge. See Dkt. 6.

         After considering the record, the Court concludes it lacks jurisdiction to review the Administrative Law Judge's (“ALJ”) decision finding Plaintiff's prior applications should not be reopened. Further, the Court finds Plaintiff has failed to show the ALJ erred when he found Plaintiff not disabled as of June 30, 2009. Accordingly, the decision of the Acting Commissioner of Social Security (“Commissioner”) affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


         On July 20, 2010, Plaintiff filed applications for DIB and supplemental security income (“SSI”), alleging disability as of April 10, 2005. See Dkt. 9, Administrative Record (“AR”) 80.[2]The applications were denied upon initial administrative review and on reconsideration. See AR 80. A hearing was held before ALJ David Johnson and a decision denying benefits was issued on April 29, 2013. See AR 80-92, 743-89. Plaintiff appealed to the Appeals Council and, on December 13, 2013, while the appeal was pending, Plaintiff filed another application for SSI. See AR 33. On January 9, 2015, the Appeals Council remanded the ALJ's decision as to the DIB claim and directed the ALJ to determine whether reopening the 2008 Applications was necessary and appropriate. AR 99-101. The Appeals Council also directed the ALJ to consider whether Plaintiff's December 2013 SSI application should be consolidated with applications filed on July 20, 2010. AR 100.

         Following the Appeals Council remand, the ALJ held a hearing on May 29, 2015. AR 790-825. In a decision dated September 16, 2015, the ALJ found: (1) there was no basis to reopen the 2008 Applications; (2) the relevant disability period for DIB was from February 12, 2009 (the day after the 2008 Applications became final) through June 30, 2009 (the date last insured); and (3) Plaintiff was not disabled as of June 30, 2009 for purposes of DIB, but became disabled on December 13, 2013 for purposes of SSI benefits. AR 33-49. Plaintiff's request for review of the ALJ's decision was granted by the Appeals Council on April 8, 2016. AR 19-22. In a decision dated June 9, 2016, the Appeals Council adopted the decision of the ALJ, finding Plaintiff was not disabled from February 12, 2009 through June 30, 2009, but became disabled on December 13, 2013 and continued to be disabled through the date of the Appeals Council's decision. AR 14-17.

         In the Opening Brief, Plaintiff maintains the ALJ erred by failing to: (1) reopen the 2008 Applications; (2) properly evaluate Plaintiff's residual functional capacity; and (3) meet his burden at Step Five. Dkt. 17, pp. 2, 13.


         Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner's denial of social security benefits if the ALJ's findings are based on legal error or not supported by substantial evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005) (citing Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999)).


         I. Whether the ALJ erred in determining Plaintiff's 2008 applications should not be reopened.

         Plaintiff first contends the ALJ erred when he found there was not “good cause” to reopen Plaintiff's 2008 applications. Dkt. 17, pp. 8-10. The Commissioner may apply administrative res judicata “to bar reconsideration of a period with respect to which she has already made a determination, by declining to reopen the prior application.” Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996). Once an administrative decision becomes final, the Commissioner's decision to reopen a disability claim is “purely discretionary.” Taylor v. Heckler, 765 F.2d 872, 877 (9th Cir. 1985). Because a discretionary decision is not a “final decision” within the meaning of 42 U.S.C. § 405(g), the Commissioner's refusal to reopen a decision “is not a ‘final' decision subject to judicial review.” Id. (citations omitted); Lester, 81 F.3d at 827 (“As a general matter, the Commissioner's refusal to reopen her decision as to an earlier period is not subject to judicial review.”).

         The Court can review a decision to not reopen a prior application if the “denial of a petition to reopen is challenged on constitutional grounds.” Califano v. Sanders, 430 U.S. 99, 109 (1977). Additionally, the Court has jurisdiction over a decision to not reopen “where the Commissioner considers ‘on the merits' the issue of the claimant's disability during the already-adjudicated period.” Lester, 81 F.3d at 827; see also Lewis v. Apfel, 236 F.3d 503, 510 (9th Cir. 2001). If “such a de facto reopening occurs, the Commissioner's decision as to the prior period is subject to judicial review.” Lester, 81 F.3d at 827. However, “where the discussion of the merits is followed by a specific conclusion that the claim is denied on res judicata grounds, the decision should not be interpreted as re-opening the claim and is therefore not reviewable.” Krumpelman v. Heckler, 767 F.2d 586, 589 (9th Cir. 1985) (citing McGowen v. Harris, 666 F.2d 60, 68 (4th Cir. 1981)).

         Here, the ALJ considered Plaintiff's 2008 applications, which were denied on February 11, 2009. AR 34. The ALJ discussed the new evidence, but found it did not provide new or greater insight into Plaintiff's condition and was not material. AR 34. The ALJ concluded “good cause does not exist to support a re-opening of [the 2008] application. ...

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