Jerro v. Colvin

          MEMORANDUM OPINION AND ORDER

          DOUGLAS F. McCORMICK, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Robbin Keith Jerro (“Plaintiff”) appeals from the final decision of the Administrative Law Judge (“ALJ”) denying his applications for disability insurance benefits and supplemental security income benefits. On appeal, the Court concludes that the ALJ erred in determining that Plaintiff did not overcome the presumption of continuing nondisability. Therefore, the ALJ’s decision is reversed and the matter is remanded for further proceedings consistent with this opinion.

         I. BACKGROUND

         Plaintiff filed initial applications for Social Security disability insurance benefits and supplemental security income benefits on June 16, 2010 and June 17, 2010, respectively. Administrative Record (“AR”) 104. In both applications Plaintiff alleged disability beginning February 2, 2010. AR 104. Plaintiff’s applications were denied and a hearing by an ALJ was held. On November 10, 2011, ALJ Sally Reason (“Judge Reason”) issued an unfavorable decision. AR 104-12. Judge Reason found that Plaintiff had the severe impairments of back pain, shoulder pain status post removal of lipoma, and depression. AR 106. Judge Reason also found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of a listed impairment. AR 107. Judge Reason determined that Plaintiff had the residual functional capacity (“RFC”) to perform medium work with some postural restrictions so long as he was limited to unskilled work with limited social or public contact. AR 108. Accordingly, Judge Reason determined that Plaintiff was capable of performing his past relevant work as a hospital housekeeper. AR 111. That decision was not appealed and became final.

         Plaintiff subsequently filed applications for disability insurance benefits and supplemental security income benefits on January 23, 2012, and February 1, 2012, respectively. AR 251-59. Plaintiff alleged the same February 2010 onset date as in his 2010 applications. AR 251, 253. On January 17, 2014, a second ALJ issued an unfavorable decision. AR 24-43. Because the alleged onset date included a period that was previously adjudicated, and Plaintiff was found not disabled, the ALJ evaluated Plaintiff’s alleged disability from November 11, 2011, the date of the previous unfavorable decision. AR 42. In reaching his decision, the ALJ incorporated Judge Reason’s findings and found that Plaintiff had the severe medically determinable impairments of back pain with diagnostic imaging evidence of degenerative changes of the lumbar spine; shoulder pain, status post removal of lipoma; and depressive disorder. AR 32. The ALJ likewise determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments. AR 33. The ALJ also found that Plaintiff failed to establish a “change in circumstances” sufficient to overcome the presumption of continuing nondisability; as a result, the ALJ applied Judge Reason’s RFC. See AR 36 (“I must adopt Judge Reason’s [RFC assessment]”). Accordingly, the ALJ determined that Plaintiff could perform his past relevant work. AR 41-42.

         II. ISSUE PRESENTED

         The parties dispute whether the ALJ properly determined that Plaintiff did not overcome the presumption of continuing nondisability. See Joint Stipulation (“JS”) at 4-20.

         III. DISCUSSION

         Plaintiff contends that the ALJ should have found that he rebutted the presumption of continuing nondisability arising from Judge Reason’s adverse decision. JS at 4-9. Specifically, Plaintiff contends that his schizoaffective disorder was a “new impairment” that Judge Reason did not consider. Id. at 7-9. As a result, Plaintiff argues, the second ALJ should not have relied on and incorporated Judge Reason’s findings. Id. at 8-9. The Court agrees.

         A. Applicable Law

         The principles of res judicata apply to an administrative decision if “a previous determination or decision . . . about [a claimant’s] rights on the same facts and on the same issue or issues . . . has become final by either administrative or judicial action.” 20 C.F.R §§ 404.957(c)(1), 416.1457(c)(1). A previous final determination of nondisability creates a presumption of continuing nondisability with respect to any subsequent unadjudicated period of alleged disability. See Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988); Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996) (as amended); Social Security Acquiescence Ruling (“SSAR”) 97-4(9), 1997 WL 742758.^[1]

         This presumption may be overcome by a showing of “changed circumstances.” Chavez, 844 F.2d at 693; Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985). To show “changed circumstances, ” the evidence must establish that the claimant suffers from an impairment that indicates a greater disability since the prior decision denying benefits. Chavez, 844 F.2d at 693. Changed circumstances may include “a change in the claimant’s age category . . ., an increase in the severity of the claimant’s impairment(s), the alleged existence of an impairment(s) not previously considered, or a change in the criteria for determining disability.” SSAR 97-4(9), 1997 WL 742758, at *3.

         B. Plaintiff Presented Sufficient Evidence to Rebut the Presumption of Continuing Nondisability

         The record contains significant evidence that Plaintiff had additional mental impairments beyond depression at the time of the second ALJ’s decision. On December 2, 2011, Plaintiff was diagnosed with severe major depressive disorder with psychotic features including audio and visual hallucinations. AR 420. The assessment from West Valley Medical Center also noted that Plaintiff’s symptoms have impaired his ability to “maintain residence, employment, daily living, social activities, health.” Id. On November 1, 2012, Plaintiff was diagnosed with schizoaffective disorder. AR 415. On September 4, 2013, another assessment from West Valley Medical Center noted a diagnosis of schizoaffective disorder, negative auditory hallucinations that commanded Plaintiff to hurt himself or others, auditory hallucinations that consisted of multiple voices at times conversing with each other and carrying on running commentary about ...