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Sheila O. v. Commissioner of Social Security

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

June 13, 2019

SHEILA O., Plaintiff,


          J. Richard Creatura United States Magistrate Judge.

         This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13. See also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, Dkt. 2; Consent to Proceed Before a United States Magistrate Judge, Dkt. 3. This matter has been fully briefed. See Dkts. 13, 14, 15.

         Plaintiff alleges that the ALJ erred in weighing ten medical source opinions. For several of the opinions, plaintiff does not state legal arguments or support his allegations with evidence. Nevertheless, the Court has endeavored to evaluate these opinions for possible legal error and substantial evidence. After considering and reviewing the record, the Court concludes that the ALJ's decision is based on substantial evidence and free from legal error. Accordingly, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


         Plaintiff's application for Supplemental Security Income (“SSI”) benefits pursuant to 42 U.S.C. § 1382(a) (Title XVI) of the Social Security Act was denied initially and following reconsideration. See AR. 75, 89. Plaintiff's requested hearing was held before Administrative Law Judge David Johnson (“the ALJ”) on October 12, 2017. AR. 561. On April 20, 2018 the ALJ issued a written decision in which the ALJ concluded that plaintiff was not disabled pursuant to the Social Security Act. AR. 530.

         This case has previously been remanded by the district court. Following remand and after the latest adverse ALJ decision, plaintiff chose not to file exceptions with the Appeals Council, making the ALJ decision the final decision on the 61st day after the decision was issued. AR. 531; see 20 C.F.R. § 416.1484. Plaintiff filed a complaint in this Court seeking judicial review of the ALJ's written decision in August 2018. Dkt. 1. Defendant filed the sealed administrative record regarding this matter (“AR.”) on January 18, 2019. Dkt 9.


         Plaintiff, Sheila O., was born in 1973 and was 37 years old on the alleged disability onset date of September 30, 2010. See AR. 76. Plaintiff has a GED and work history in the fast food industry and working for a fish packing company. AR. 192. Plaintiff stopped working because of her conditions. AR. 191.

         Plaintiff filed her application alleging both physical and mental impairments. AR. 191. According to the ALJ, plaintiff has at least the severe impairments of “chronic low back pain as caused by a combination of lumbar degenerative disc disease with right-sided L5-S1 facetogenic pain and morbid obesity; dysthymic disorder; somatic symptom disorder; right knee patellofemoral syndrome; headaches; hypothyroidism; diffuse myalgias; posttraumatic stress disorder; personality disorder; chronic pain syndrome[.]” AR. 536.


         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)).


         In plaintiff's opening brief, plaintiff raises the following issues: (1) Whether the ALJ's refusal to reopen plaintiff's prior determinations violated Social Security regulations; (2) Whether the ALJ properly evaluated the medical evidence; (3) Whether the ALJ properly evaluated plaintiff's testimony; (4) Whether the ALJ properly assessed plaintiff's residual functional capacity leading to erroneous RFC and step-five findings; and (5) Whether this case should be remanded for an award of benefits. See Dkt. 13, p. 2.

         I. Reopening a Prior Determination

         Plaintiff asserts that the ALJ erred by not reopening plaintiff's prior file. Dkt. 13, p. 3. When a claimant has been denied benefits at the initial and reconsideration level, a request for a hearing should be made within sixty days. See 20 C.F.R. §§ 416.1433(b); 416.1407. Additionally, 20 C.F.R. § 416.1488(a), (b) allow a Title XVI determination to be reopened “[w]ithin 12 moths of the date of the notice of the initial determination, for any reason;” or “[w]ithin four years of the date of the notice of the initial determination if we find good cause, as defined in §416.1489, to reopen the case.” The Social Security Administration will find good cause to reopen a determination or decision if, inter alia, “[n]ew and material evidence is furnished[.]” 20 C.F.R. § 416.1489 (a)(1); see also HALLEX I-3-9-40(B). Evidence is new and material when the evidence: (1) was not part of the claim as of the date of the determination; (2) relates to the period on or before the date of the determination; and (3) would have resulted in a different determination if the evidence had been available at the time of the determination. HALLEX I-3-9-40(C); see also Moore v. Apfel, 216 F.3d 864, 868 (9th Cir. 2000) (“HALLEX is strictly an internal guidance tool, providing policy and procedural guidelines to ALJs”).

         Generally, the Administration's determination regarding whether or not to reopen a claim is not subject to judicial review unless the plaintiff raises a “colorable constitutional claim of due process violation that implicates a due process right . . . to be heard or to seek reconsideration[.]” Dexter v. Colvin, 731 F.3d 977, 980, (9th Cir. 2013)(quoting Klem v. Astrue, 543 F.3d 1139, 1144 (9th Cir. 2008)); see also Matlock v. Sullivan, 908 F.2d 492, 494 (9th Cir. 1990); Taylor v. Heckler, 765 F.2d 872, 876-77 (9th Cir. 1985). The Ninth Circuit stated in Dexter that “when the Commissioner promulgates regulations explaining what circumstances may constitute good cause and an applicant relies on one or more of them . . . [, ] some explanation is required of why the applicant's potentially valid reasons for good cause are rejected.” 731 F.3d at 981. Here, the Commissioner has promulgated a regulation stating that a prior Title XVI application may be reopened within a year for any reason and within four years if the claimant produces new and material evidence. 20 C.F.R. § 416.1489(a)(1).

         In discussing whether or not there was a basis to reopen plaintiff's prior file, the ALJ stated that although plaintiff's representative presented additional evidence, he “carefully considered all evidence, even evidence received after the initial hearing decision was issued in 2014, and finds that although voluminous records were received, most of these records are duplicative and the remaining records are not material.” AR. 534.

         The ALJ thoroughly addressed the reopening issue in the first ALJ decision, which was remanded on other grounds, stating:

At the hearing, the claimant's representative suggested that the record contained new and material evidence, which warranted reopening the claimant's prior application. [Citation omitted]. However, those treatment notes indicate that the claimant was uninterested in treatment, and that her application for disability benefits was actually an impediment to behavioral progress. [Citation omitted]. This is not evidence that indicates the claimant's condition was more limiting than previously thought, thus is not material and is not good cause to reopen the prior application. Because the current application was protectively filed within one year of the prior denials, good cause is not necessary and any reason will suffice to reopen the prior determination. However, there is no reason to reopen apparent. No. reason other than consideration of 15F was advanced. That record appears to bolster the prior determination, not provide a reason to question it. Independent review of the record does not reveal any other reason to reopen the prior determination.

AR. 17. In discussing whether reopening was appropriate in Dexter, the court clarified that “[the claimant was] not entitled to judicial review of the merits of the ALJ's good-cause decision, she was entitled to seek administrative review of that decision with the Appeals Council.” Dexter, 731 F.3d at 981 (emphasis added).

         This principle is applicable in the instant case. This Court is not reviewing the merits of the ALJ's assertion that he did not find good cause to reopen the claim, only whether or not the Appeals Council had enough information to review the ALJ's decision not to reopen the claim. The ALJ thoroughly explained his decision not to reopen and noted that the new evidence actually served to reinforce the prior determination denying plaintiff's claim. AR. 17. Moreover, plaintiff's representative did raise this issue before the Appeals Council, which denied review of plaintiff's claim. AR. 6-7, 273. Therefore, the Court finds no colorable constitutional claim to examine whether the claim should be reopened. Dexter, 731 F.3d at 980.

         II. ...

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