Thompson v. Colvin

          ORDER

          ALLISON CLAIRE UNITED STATES MAGISTRATE JUDGE.

         Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”), denying her application for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (the “Act”), 42 U.S.C. §§ 1381-1383f.^[1] For the reasons that follow, the court will grant plaintiff’s motion for summary judgment, deny the Commissioner’s cross-motion for summary judgment, and remand this matter under sentence four of 42 U.S.C. § 405(g), for further proceedings.

         I. PROCEDURAL BACKGROUND

         A. Prior Applications

         Plaintiff initially applied for supplemental security and for disability income under Title II of the Act, 42 U.S.C. §§ 401-34, on October 30, 2007. Administrative Record (“AR”) 22 (decision).^[2] This application was denied on February 25, 2010 in a decision by an ALJ after a hearing at which plaintiff represented herself. AR 117-32 (prior decision & exhibit list). Plaintiff did not appeal this decision. ECF No. 16-1 at 7 (plaintiff’s summary judgment brief).

         Plaintiff then applied for supplemental security income on July 22, 2010. AR 22. This application was denied on November 17, 2010, apparently at the state agency level. Id. The November 17, 2010 denial is not a part of the Administrative Record. Plaintiff did not appeal this decision. Id.

         B. The Current Application

         Plaintiff’s current application for supplemental security income was submitted on April 21, 2011. Id. The disability onset date was alleged to be April 18, 2000, but was later amended to July 22, 2010. Id. The application was disapproved initially on August 10, 2011, and upon reconsideration on May 8, 2012. Id. On February 22, 2013, ALJ Dante M. Alegre presided over the hearing on plaintiff’s challenge to the disapprovals. AR 63-86 (transcript).^[3] Plaintiff was present and testified at the hearing, and she was represented by attorney Randall Padgett at the hearing. AR 63. Alina Sala, a vocational expert, also testified at the hearing. AR 63, 80-81, 82-85.

         On April 29, 2013, after denying plaintiff’s request to re-open her July 22, 2010 application (and the November 17, 2010 denial of that application), the ALJ issued an unfavorable decision, finding plaintiff “not disabled” under Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 22-38 (decision), 39-42 (exhibit list). On December 18, 2014, the Appeals Council denied plaintiff’s request for review, leaving the ALJ’s decision as the final decision of the Commissioner of Social Security. AR 1-5 (decision & order receiving additional exhibit).

         Plaintiff filed this action on January 21, 2015. ECF No. 1; see 42 U.S.C. §§ 405(g), 1383c(3). The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 3, 11. The parties’ cross-motions for summary judgment, based upon the Administrative Record filed by the Commissioner, have been fully briefed. ECF Nos. 16 (plaintiff’s summary judgment motion), 19 (Commissioner’s summary judgment motion), 20 (plaintiff’s reply).

         II. FACTUAL BACKGROUND

         Plaintiff was born on December 21, 1964, and accordingly was 46 years old when she filed her application. AR 36. Plaintiff has a high school education. AR 36.

         III. LEGAL STANDARDS

         The Commissioner’s decision that a claimant is not disabled will be upheld “if it is supported by substantial evidence and if the Commissioner applied the correct legal standards.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..’” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)).

         A. Substantial Evidence

         Substantial evidence is “more than a mere scintilla, ” but “may be less than a preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the record can constitute substantial evidence, only those ‘reasonably drawn from the record’ will suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted). Although this court cannot substitute its discretion for that of the Commissioner, the court nonetheless must review the record as a whole, “weighing both the evidence that supports and the evidence that detracts from the [Commissioner’s] conclusion.” Desrosiers v. Secretary of HHS, 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The court must consider both evidence that supports and evidence that detracts from the ALJ’s conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”).

         B. Credibility Determinations

         “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“It was error for the district court to affirm the ALJ’s credibility decision based on evidence that the ALJ did not discuss”).

         C. Harmless Error

         The court will not reverse the Commissioner’s decision if it is based on harmless error, which exists only when it is “clear from the record that an ALJ’s error was ‘inconsequential to the ultimate nondisability determination.’” Robbins v. SSA, 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         D. The Presumption of Continuing Non-Disability

         “The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly to administrative proceedings than to judicial proceedings.” Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The ALJ’s or Appeals Council’s finding of non-disability, once it becomes the final decision of the Commissioner, is given “res judicata effect” as to the period of disability covered by the decision, so long as no “manifest injustice” would result. Lyle v. Secretary of Health & Human Services, 700 F.2d 566, 568 & 568 n.2 (9th Cir. 1983).

         However, for any subsequent, un-adjudicated period of alleged disability, an ALJ’s finding that a claimant is not disabled only “create[s] a presumption that [the claimant] continued to be able to work” after the adjudicated period. Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1996) (emphasis added). This is the version of “administrative res judicata” that is at issue here. Plaintiff does not challenge the prior finding of disability, but rather, she challenges the presumption that arises from that finding. “The claimant, in order to overcome the presumption of continuing nondisability arising from the first administrative law judge's findings of nondisability, must prove ‘changed circumstances’ indicating a greater disability.” Chavez, 844 F.2d at 693 (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.1985)); Light v. Soc. Sec. Admin., 119 F.3d 789, 791-92 (9th Cir. 1997) (“[t]he claimant may overcome the presumption by proving the existence of ‘changed circumstances’ that would establish disability’”) (some internal quotation marks omitted) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)).

         IV. RELEVANT LAW

         Supplemental Security Income is available for every eligible individual who is “disabled.” 42 U.S.C. § 1381a. Plaintiff is “disabled” if she is “‘unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment . . ..’” Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (quoting identically worded provisions of 42 U.S.C. § 1382c(a)(3)(A)).

         The Commissioner uses a five-step sequential evaluation process to determine whether an applicant is disabled and entitled to benefits. 20 C.F.R. § 416.920(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation process to determine disability” under Title II and Title XVI). The following summarizes the sequential evaluation:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If ...