United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S COMPLAINT
Richard Creatura United States Magistrate Judge.
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.
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).
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.
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.
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.
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.
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
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.
Reopening a Prior Determination
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
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).
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.
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
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