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Munson v. Berryhill

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

July 28, 2017

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


          Thomas S. Zilly United States District Judge.

         Donna 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).


         Ms. 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. 156.

         On July 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. Tr. 47.

         Ms. 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.

         Utilizing the five-step disability evaluation process, [2] 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.[3] 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.


         A. Due Process

         Ms. 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.

         The 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).

         Section 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.

         Ms. 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. at 4.

         Ms. 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.

         Ms. 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.[4] 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.

         B. Medical Opinion Evidence

         The ALJ 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.

         1.Gary Connor, Ph.D.

         Ms. Munson contends the ALJ erred in evaluating the opinion of Dr. Connor. Dkt. 7 at 6-9. The Court agrees.

         Dr. 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 ...

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