United States District Court, W.D. Washington, Tacoma
ORDER REVERSING AND REMANDING FOR FURTHER
S. Zilly United States District Judge.
Bland Munson seeks review of the denial of her application
for Title II Disability Insurance Benefits (DIB). Ms. Munson
contends the Administrative Law Judge (ALJ) violated her due
process rights in declining to reopen her prior DIB claim and
applying res judicata with respect to that time period. Dkt.
7 at 1, 3-6. Ms. Munson further contends the ALJ erred in:
(1) failing to provide legally sufficient reasons for
rejecting medical source opinions; (2) failing to find
trichotillomania to be a severe impairment; (3) failing to
provide clear and convincing reasons for rejecting her own
symptom testimony; and (4) failing to provide germane reasons
for rejecting the lay testimony. Dkt. 7 at 1. As discussed
below, the Court REVERSES the Commissioner's final
decision and REMANDS the matter for further administrative
proceedings under sentence four of 42 U.S.C. §405(g).
AND ALJ's DECISION
Munson filed a previous application for DIB in August 2011
alleging disability as of August 31, 2007. Tr. 21, 90. Ms.
Munson's application was denied initially and on
reconsideration. On February 21, 2013, Ms. Munson filed an
untimely request for a hearing before an ALJ but argued she
had “good cause” under 20 C.F.R. §404.911
for the late request. Tr. 136-137, 155. Specifically, Ms.
Munson's attorney submitted an affirmation stating that
he had filed a timely request for a hearing in April 2012 and
suggesting that there may have been a “glitch” in
the new electronic submission process for hearing requests.
Tr. 155. Ms. Munson also submitted an affidavit stating she
had spoken to someone at Social Security in September 2012
who indicated an April 2012 hearing request was received. Tr.
3, 2017, ALJ Adams issued an Amended Order of Dismissal
finding that Ms. Munson had not established good cause for
her untimely hearing request and dismissing her request for a
hearing. Tr. 137. ALJ Adams stated that Ms. Munson's
attorney could not cite the specific date in April 2012 that
he allegedly submitted the hearing request nor could he offer
any proof that he had filed the hearing request in a timely
manner. Id. He further noted that there was no proof
of a “glitch” in the system that may have caused
the alleged April 2012 hearing request to go missing.
Id. Because ALJ Adams dismissed Ms. Munson's
request for a hearing, the reconsideration determination
dated February 27, 2012, finding Ms. Munson not disabled
remained in effect. Tr. 21. The Appeals Council denied review
of ALJ Adams' Amended Order of Dismissal. Tr. 138-139.
Ms. Munson did not seek review at the district court level.
Munson filed the instant DIB application on May 21, 2013,
alleging disability as of July 1, 2007, two months earlier
than the date alleged in her August 2011 application. Tr.
219-220. Her application was denied initially and on
reconsideration. Tr. 21, 115-132. The ALJ conducted a hearing
on August 18, 2014, during the course of which he stated he
could not reopen Ms. Munson's prior claim because it was
an administratively final prior decision. Tr. 47-48. Ms.
Munson argued that, pursuant to 20 C.F.R. §404.989, the
ALJ could reopen an earlier application for “good
cause” which is satisfied where “new and material
evidence is furnished.” Tr. 334. Ms. Munson contended
new and material evidence was submitted including the medical
opinion of Steven Mitchell M.D., as well as lay witness
testimony, which should be considered by the ALJ in deciding
whether there was good cause to reopen her prior application.
Id. She also argued that the “mix-up”
concerning the request for hearing on the first application
also justified reopening that application. Id. On
February 10, 2015, the ALJ issued a decision stating he found
“no basis” to reopen Ms. Munson's prior claim
and citing 20 C.F.R. §404.988 which outlines the
circumstances under which a prior claim may be reopened. Tr.
21. As such, the ALJ determined that the reconsidered
determination issued on the first application on February 27,
2012, was final and binding with respect to the issue of
disability through that date. Tr. 21. The ALJ indicated he
would only consider whether Ms. Munson was disabled at any
time from February 28, 2012, through her date last insured
(DLI) of June 30, 2012. Tr. 21-22.
the five-step disability evaluation process,  the ALJ found
that Ms. Munson had not engaged in substantial gainful
activity during the limited period from February 28, 2012 to
June 30, 2012. Tr. 25. During that period, the ALJ found Ms.
Munson had severe impairments of affective disorder, anxiety
disorder, and personality disorder but that these impairments
did not meet or equal the requirements of a listed
impairment. Id. The ALJ further found that,
during the period in question, Ms. Munson had the residual
functional capacity (RFC) to perform a full range of work at
all exertional levels, but with several non-exertional
limitations. Specifically, Ms. Munson could perform simple,
routine tasks and follow short, simple instructions, and she
required a work environment without public contact and
minimal supervisor contact. Id. The ALJ specified
that minimal contact did not preclude all contact but rather
meant that contact does not occur regularly, it did not
preclude simple and superficial exchanges and it did not
preclude being in proximity to the supervisor. Id.
Ms. Munson could work in proximity to a few co-workers but
not in a cooperative or team effort. Id. She
required a work environment that required no more than
minimal interactions with a few co-workers. Id. With
this RFC, Ms. Munson could not perform past relevant work
during the subject period. Id. However, as there
were jobs that existed in significant numbers in the national
economy that Ms. Munson could perform, she was not disabled.
Id. The Appeals Council denied Ms. Munson's
request for review making the ALJ's decision the
Commissioner's final decision. Tr. 1-6.
Munson contends the ALJ violated her due process rights by
denying her request to reopen her prior application. Dkt. 7
at 1, 3-6. Ms. Munson notes that, at the hearing, the ALJ
erroneously stated that he “could not” reopen her
prior claim and, in his decision, declined to reopen the
claim “without discussing or even mentioning the good
cause standard in his decision.” Tr. 47-48. The
Commissioner argues that an ALJ's decision not to reopen
a prior claim is discretionary, not a final determination
subject to judicial review, and that Ms. Munson fails to
articulate a colorable constitutional claim. Dkt. 14 at 3-4.
Court has jurisdiction pursuant to statute to review only a
“‘final decision of the [Social Security
Administration] made after a [statutorily mandated]
hearing.'” Dexter v. Colvin, 731 F.3d 977,
980 (9th Cir. 2013) (quoting Califano v. Sanders,
430 U.S. 99, 109 (1977)); 42 U.S.C. §405(g). An
ALJ's decision whether, for good cause shown, to
entertain an untimely hearing request or to reopen an earlier
application is strictly discretionary, not final, and thus is
not generally reviewable by a district court. Id.
However, a discretionary decision by the Administration that
is not a final decision may be subject to an exception where
the Commissioner's decision “is challenged on
constitutional grounds.” Evans v. Chater, 110
F.3d 1480, 1482 (9th Cir. 1997) (citing Sanders, 430
U.S. at 109); 42 U.S.C. § 405(g). This “exception
applies to any colorable constitutional claim of due process
violation that implicates a due process right either to a
meaningful opportunity to be heard or to seek reconsideration
of an adverse benefits determination.” Udd v.
Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001) (internal
quotation marks and citation omitted). “[A] mere
allegation of a due process violation is not a colorable
constitutional claim.” Klemm v. Astrue, 543
F.3d 1139, 1144 (9th Cir. 2008) (internal quotation marks and
citation omitted). “Rather, the claim must be supported
by facts sufficient to state a violation of substantive or
procedural due process.” Id. (internal
quotation marks and citation omitted).
404.988 of Title 20 of the Code of Federal Regulations sets
forth a variety of circumstances under which the Commissioner
may reopen a prior determination or claim. Subsection (b) of
the regulation provides that a determination or decision may
be reopened “[w]ithin four years of the date of the
notice of the initial determination if we find ‘good
cause', as defined in § 404.989, to reopen the
case.” 20 C.F.R. §404.988. Section 404.989
provides that “good cause” to reopen a
determination or decision will be found if: “(1) New
and material evidence is furnished; (2) A clerical error in
the computation or recomputation of benefits was made; or (3)
The evidence that was considered in making the determination
or decision clearly shows on its face that an error was
made.” 20 C.F.R. § 404.989.
Munson argues that ALJ Kennedy should not have relied on ALJ
Adams' finding denying Ms. Munson's request for
reopening “since the evidence [ALJ] Adams considered in
making his decision clearly shows on its face that an error
was made.” Dkt. 7 at 5. Ms. Munson further argues that
she provided new and material evidence in the form of
treatment notes, the opinions of Steven R. Mitchell, M.D.,
Ph.D., Gary Connor, Ph.D., and Robert T. Hogg, M.D., as well
as several lay witness statements describing Ms. Munson's
functioning dating back to 2007, which also provided a basis
for reopening. Id. She contends the ALJ's
refusal to reopen her prior claim “without discussing
or even mentioning the good cause standard in his
decision” violated her due process rights. Id.
Munson contends the ALJ incorrectly stated at the hearing
that he “could not” reopen Ms. Munson's prior
claim because it was an “administratively final prior
decision.” Tr. 47-48. Even assuming the ALJ misstated
the standard for reopening a prior claim at the hearing, in
his decision the ALJ demonstrates that he applied the proper
standard. Specifically, the ALJ states that he “do[es]
not find any basis for reopening the claimant's prior
Title II applications” and cites 20 C.F.R.
§404.988. Tr. 21, 47-48; 20 C.F.R. § 404.988. Ms.
Munson also argues that the ALJ does not even mention the
“good cause” standard. However, while the ALJ may
not have recited the regulatory language, 20 C.F.R.
§404.988 includes the provision that a claim may be
reopened within four years of the date of the notice of the
initial determination upon a finding of “good
cause”, as defined in 20 C.F.R. §404.989. In
finding no basis to reopen the prior claim under 20 C.F.R.
§404.988, the ALJ indicates that he considered whether
there was good cause to do so.
Munson appears to seek to argue the merits of her good cause
argument. Dkt. 7 at 3-6. However, the ALJ's decision to
deny reopening of a prior claim is discretionary and Ms.
Munson is not entitled to judicial review of the ALJ's
good cause determination on the merits. See Dexter,
731 F.3d 977. Rather, the Court is limited to considering
whether a colorable constitutional claim is raised. While the
ALJ in this case might have provided a more detailed
explanation, in stating he found no basis to reopen the prior
claim under 20 C.F.R. §404.988, he also indicated that
he had considered the relevant factors for reopening a prior
claim under the regulations and determined there was no basis
for doing so. Tr. 21. Ms. Munson cites no case law nor
does she make any further arguments that due process requires
more than this. Accordingly, Ms. Munson fails to raise a
colorable due process claim and the Court cannot find the ALJ
erred in applying res judicata for the period that was the
subject of the prior claim.
Medical Opinion Evidence
must provide “clear and convincing reasons” to
reject the uncontradicted opinion of a treating or examining
doctor. Lester v. Chater, 81 F.3d 821, 830, 831 (9th
Cir. 1996). When contradicted, a treating or examining
doctor's opinion may not be rejected without
“specific and legitimate reasons” that are
supported by substantial evidence in the record. Id.
Munson contends the ALJ erred in evaluating the opinion of
Dr. Connor. Dkt. 7 at 6-9. The Court agrees.
Connor evaluated Ms. Munson in December 2012. Tr. 823-825.
Ms. Munson was referred to Dr. Connor by her treating
psychiatrist Dr. Mitchell who described her psychological
problems as “mixed, highly varied and puzzling”
and sought clarification of her diagnoses. Id. Dr.
Connor interviewed Ms. Munson as well as her husband Scott
Munson and conducted clinical testing, including the
Minnesota Multiphasic Personality Inventory-2 (MMPI-2) and
Million Clinical Multiaxial Inventory III (MCMI-III).
Id. Dr. Connor opined that the testing suggests that
Ms. Munson is “severely anxious, depressed as well as
schizoid, dependent and confused.” Tr. 824. He observed
that Ms. Munson was very quiet and gave short and almost
unintelligible answers to questions. Id. He noted
that, during the personality profiles it took her twice as
long to complete the inventories as it would most people and
it took great effort for her to concentrate and pay attention
to the task at hand. Id. He found that “as
sometimes happens”, Ms. Munson's symptoms did not
meet a “neat, single, well defined disorder
…” but diagnosed her with major depression,
generalized anxiety disorder and avoidant personality
disorder. Id. Dr. Connor opined that,
For years now, since 2007, Donna has not been functional due
to crippling anxiety, severe bouts of withdrawl and periods
of isolation, periods of highly dependent behavior but at the
same time fearful of caretakers with low trust in them. She
can be immobilized by depression and fatigue as well as an
overwhelming need to socially withdraw. The MMPI-2 as well as
the MCMI-III show a pattern of severe clinical maladjustment.
She feels overwhelmed with anxiety, tension and depression.
She feels chronically helpless and alone. Decisions are
difficult as her life is disorganized and pervasively
unhappy. She is chronically operating at a low level of
cognitive efficiency. It is the ...