The opinion of the court was delivered by: Honorable Jacqueline Chooljian United States Magistrate Judge
On January 25, 2007, plaintiff Cassandra Johnson ("plaintiff") filed a Complaint seeking review of the Commissioner of Social Security's denial of plaintiff's applications for benefits. On October 1, 2007, the parties filed a Joint Stipulation ("JS") setting forth their respective positions on plaintiff's claims. On July 23, 2009, the matter was transferred and referred to the current Magistrate Judge. The parties thereafter filed consents to proceed before the current Magistrate Judge. On August 13, 2009, the matter was formally reassigned to the instant Court for final disposition. The Court has taken this matter under submission without oral argument. See Fed. R. Civ. P. 78; L.R. 7-15.
Based on the record as a whole and the applicable law, the decision of the Commissioner AFFIRMED. The findings of the Administrative Law Judge ("ALJ") are supported by substantial evidence and are free from material error.*fn2
II. BACKGROUND AND SUMMARY OF ADMINISTRATIVE DECISION
A. Previously Adjudicated Applications
On or about August 13, 2001, plaintiff previously filed applications for Supplemental Security Income and Disability Insurance Benefits due to seizures and hypertension. (Administrative Record ("AR") 23, 59-61, 81-90, 158-60). An ALJ (the "prior ALJ") examined the medical record and heard testimony from plaintiff on August 22, 2002. (AR 166).
On November 8, 2002, the prior ALJ issued an unfavorable decision denying benefits based upon the ALJ's conclusion that plaintiff was not disabled at any time through the date of the decision (the "prior ALJ's decision"). (AR 170). The prior ALJ found: (1) plaintiff suffered from hypertension and a seizure disorder (AR 169); (2) plaintiff's impairments or combination of impairments did not meet or medically equal one of the listed impairments (AR 169); (3) plaintiff had no exertional limitations, but her ability to work was limited by her need to avoid heights, by her need to avoid operating a motor vehicle, and by her need to avoid working around hazards in the workplace (AR 169); (4) plaintiff could perform her past relevant work as a secretary/administrative assistant (AR 169-70); and (5) plaintiff's allegations of "excess" symptoms and functional limitations were not credible. (AR 169). Plaintiff did not appeal seek review of the prior ALJ's decision. (JS 2).
On or about January 13, 2003, plaintiff filed subsequent applications for Supplemental Security Income and Disability Insurance Benefits which are in issue in the instant action. (AR 181-84, 423-25). Plaintiff asserted that she became disabled in July 2001 due to seizures. (AR 195-204). The ALJ examined the medical record and heard testimony from plaintiff (who was represented by counsel), Rita Brown (the daughter of plaintiff's former guardian), and a vocational expert on March 31, 2005. (AR 441-67).
On June 24, 2005, the ALJ determined that plaintiff was not disabled at any time from November 8, 2002 -- the date the prior ALJ's decision became final -- through the date of the decision. (AR 30). Specifically, the ALJ found:
(1) the prior ALJ's decision was final and binding and created a presumption of continuing non-disability (AR 29); (2) plaintiff had not overcome the presumption of continuing non-disability (AR 29); (3) plaintiff suffered from hypertension and a seizure disorder (AR 29); (4) plaintiff's impairment or combination of impairments did not meet or medically equal one of the listed impairments (AR 29); (5) plaintiff had no exertional limitations, but her ability to work was limited by her need to avoid heights, by her need to avoid operating a motor vehicle, and by her need to avoid working around hazards in the workplace (AR 30); (6) plaintiff's allegations and testimony, Rita Brown's testimony, and the statements of plaintiff's neighbor, Mary Burbank, regarding plaintiff's functional limitations and "excess" symptoms were not entirely credible (AR 30).
The Appeals Council denied plaintiff's application for review. (AR 9-11).
III. APPLICABLE LEGAL STANDARDS
A. Sequential Evaluation Process
To qualify for disability benefits, a claimant must show that she is unable to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least twelve months. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (citing 42 U.S.C. § 423(d)(1)(A)). The impairment must render the claimant incapable of performing the work she previously performed and incapable of performing any other substantial gainful employment that exists in the national economy. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999) (citing 42 U.S.C. § 423(d)(2)(A)). In assessing whether a claimant is disabled, an ALJ is to follow a five-step sequential evaluation process:
(1) Is the claimant presently engaged in substantial gainful activity? If so, the claimant is not disabled. If not, proceed to step two.
(2) Is the claimant's alleged impairment sufficiently severe to limit her ability to work? If not, the claimant is not disabled. If so, proceed to step three.
(3) Does the claimant's impairment, or combination of impairments, meet or equal an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1? If so, the claimant is disabled. If not, proceed to step four.
(4) Does the claimant possess the residual functional capacity to perform her past relevant work? If so, the claimant is not*fn3 disabled. If not, proceed to step five.
(5) Does the claimant's residual functional capacity, when considered with the claimant's age, education, and work experience, allow her to adjust to other work that exists in significant numbers in the national economy? If so, the claimant is not disabled. If not, the claimant is disabled.
Stout v. Commissioner, Social Security Administration, 454 F.3d 1050, 1052 (9th Cir. 2006) (citing 20 C.F.R. §§ 404.1520, 416.920).
The claimant has the burden of proof at steps one through four, and the Commissioner has the burden of proof at step five. Bustamante v. Massanari, 262 F.3d 949, 953-54 (9th Cir. 2001) (citing Tackett); see also Burch, 400 F.3d at 679 (claimant carries initial burden of proving disability).
Pursuant to 42 U.S.C. section 405(g), a court may set aside a denial of benefits only if it is not supported by substantial evidence or if it is based on legal error. Robbins v. Social Security Administration, 466 F.3d 880, 882 (9th Cir. 2006) (citing Flatten v. Secretary of Health & Human Services, 44 F.3d 1453, 1457 (9th Cir. 1995)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted). It is more than a mere scintilla but less than a preponderance. Robbins, 466 F.3d at 882 (citing Young v. Sullivan, 911 F.2d 180, 183 (9th Cir. 1990)).
To determine whether substantial evidence supports a finding, a court must "'consider the record as a whole, weighing both evidence that supports and evidence that detracts from the [Commissioner's] conclusion.'" Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001) (quoting Penny v. Sullivan, 2 F.3d 953, 956 (9th Cir. 1993)). If the evidence can reasonably support either affirming or reversing the ALJ's conclusion, a court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882 (citing Flatten, 44 F.3d at 1457).
C. Presumption Based Upon the Prior ALJ's Decision
Although the Commissioner may apply res judicata to bar reconsideration of a disability claim with respect to a period during which the Commissioner has already determined that a claimant is not disabled, the Commissioner's authority to apply res judicata to a subsequent unadjudicated period is more limited. Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995) as amended (1996). A prior final determination that a claimant is not disabled creates a presumption of continuing non-disability with respect to any subsequent unadjudicated period of alleged disability. Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985); Lyle v. Secretary, 700 F.2d 566, 568 (9th Cir. 1983). The claimant can, however, overcome this burden by proving "changed circumstances," such as the existence of an impairment not previously considered, an increase in the severity of an impairment, or a change in the claimant's age category. See Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009) (finding two changed circumstances -- new allegation of mental impairment not raised in prior application or addressed in prior denial and fact that claimant was approaching advanced age); Schneider v. Commissioner, 223 F.3d 968, 973 (9th Cir. 2000) (finding changed circumstances based on worse psychological test scores and diagnosis); Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988) (attainment of advanced age constitutes changed circumstance precluding application of res judicata to first administrate law judge's ultimate finding against disability because advanced age often outcome-determinative under Medical-Vocational grids); Light v. Social Security Administration, 119 F.3d 789, 792 (9th Cir.), as amended (1997) (increased severity of carpal tunnel syndrome and diagnosis of ADHD constitute changed circumstances); Lester, 81 F.3d at 828 (finding two changed circumstances -- new allegation of mental impairment not raised in prior application or addressed in prior denial and fact that claimant was approaching advanced age); Gregory v. Bowen, 844 F.2d 664, 666 (9th Cir. 1988) (res judicata could not be applied to bar claim since claimant raised psychological ...