Herbert v. Commissioner Social Security Administration

Filing 23

Opinion and Order. The Court AFFIRMS the decision of the Commissioner and DISMISSES this matter. Signed on 10/01/2014 by Judge Anna J. Brown. See attached 14 page Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

GERALD HERBERT,
Plaintiff,
v.
CAROLYN W. COLVIN,
Commissioner, Social Security
Administration,
Defendant.

MERRILL SCHNEIDER
Schneider Kerr & Gibney Law Offices
P.O. Box 14490
Portland, OR 97293
[phone]
Attorneys for Plaintiff
S. AMANDA MARSHALL
United States Attorney
ADRIAN L. BROWN
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]

1 - OPINION AND ORDER

3:13-CV-01888-BR
OPINION AND ORDER

DAVID MORADO
Regional Chief Counsel
LISA GOLDOFTAS
Special Assistant United States Attorney
Social Security Administration
701 Fifth Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Judge.
Plaintiff Gerald Herbert seeks judicial review of a final
decision of the Commissioner of the Social Security
Administration (SSA) in which she denied Plaintiff's application
for Supplemental Security Income (SSI) under Title XVI of the
Social Security Act.

This Court has jurisdiction to review the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g).
For the reasons that follow, the Court AFFIRMS the decision
of the Commissioner and DISMISSES this matter.

ADMINISTRATIVE HISTORY
At some point before November 2009 Plaintiff filed an
application for SSI alleging a disability onset date of
December 1, 2001.

Tr. 240.1

The application was denied

initially and on reconsideration.

An Administrative Law Judge

(ALJ) found Plaintiff was not disabled, Plaintiff appealed the

1

Citations to the official transcript of record filed by
the Commissioner on March 10, 2014, are referred to as "Tr."
2 - OPINION AND ORDER

matter to the United States District Court, and the District
Court remanded the matter to the ALJ for further consideration.2
Tr. 240.

On March 25, 2010, an ALJ issued a decision on remand

in which she found Plaintiff was not disabled and, therefore, was
not entitled to benefits.

Tr. 240-50.

It does not appear

Plaintiff appealed that decision to the Appeals Council.
Approximately two weeks later on April 7, 2010, Plaintiff
filed another application for SSI, alleging a disability onset
date of December 1, 2001.

Tr. 144.

initially and on reconsideration.
on April 11, 2012.

Tr. 28-51.

attorney at the hearing.

The application was denied

A different ALJ held a hearing

Plaintiff was represented by an

Plaintiff and a vocational expert (VE)

testified at the hearing.
The ALJ issued a decision on June 22, 2012, in which he
found Plaintiff is not disabled and, therefore, is not entitled
to benefits.

Tr. 15-27.

Pursuant to 20 C.F.R. § 404.984(d),

that decision became the final decision of the Commissioner on
March 20, 2013, when the Appeals Council denied Plaintiff's
request for review.

BACKGROUND
Plaintiff was born on November 25, 1955, and was 56 years

2

The record does not contain any of the documentation
related to this decision by the ALJ or the remand by the District
Court.
3 - OPINION AND ORDER

old at the time of the April 11, 2012, hearing.

Tr. 52.

Plaintiff has a high-school education.

He has past

Tr. 34.

relevant work experience as a small-products assembler.

Tr. 45.

Plaintiff alleges disability due to chronic obstructive
pulmonary disease (COPD), emphysema, and high blood pressure.
Tr. 149.
Except when noted, Plaintiff does not challenge the ALJ’s
summary of the medical evidence.

After carefully reviewing the

medical records, this Court adopts the ALJ’s summary of the
medical evidence.

See Tr. 22-23.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110 (9th

To meet this burden, a claimant must demonstrate his

inability "to engage in any substantial gainful activity by
reason of any medically determinable physical or mental
impairment which . . . has lasted or can be expected to last for
a continuous period of not less than 12 months."
§ 423(d)(1)(A).

42 U.S.C.

The ALJ must develop the record when there is

ambiguous evidence or when the record is inadequate to allow for
proper evaluation of the evidence.

McLeod v. Astrue, 640 F.3d

881, 885 (9th Cir. 2011)(quoting Mayes v. Massanari, 276 F.3d
453, 459–60 (9th Cir. 2001)).
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The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are
supported by substantial evidence in the record as a whole.
U.S.C. § 405(g).

42

See also Brewes v. Comm’r of Soc. Sec. Admin.,

682 F.3d 1157, 1161 (9th Cir. 2012).

Substantial evidence is

“relevant evidence that a reasonable mind might accept as
adequate to support a conclusion.”

Molina, 674 F.3d. at 1110-11

(quoting Valentine v. Comm’r Soc. Sec. Admin., 574 F.3d 685, 690
(9th Cir. 2009)).

It is more than a mere scintilla [of evidence]

but less than a preponderance.

Id. (citing Valentine, 574 F.3d

at 690).
The ALJ is responsible for determining credibility,
resolving conflicts in the medical evidence, and resolving
ambiguities.
2009).

Vasquez v. Astrue, 572 F.3d 586, 591 (9th Cir.

The court must weigh all of the evidence whether it

supports or detracts from the Commissioner's decision.

Ryan v.

Comm’r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008).

Even

when the evidence is susceptible to more than one rational
interpretation, the court must uphold the Commissioner’s findings
if they are supported by inferences reasonably drawn from the
record.

Ludwig v. Astrue, 681 F.3d 1047, 1051 (9th Cir. 2012).

The court may not substitute its judgment for that of the
Commissioner.

Widmark v. Barnhart, 454 F.3d 1063, 1070 (9th Cir.

2006).

5 - OPINION AND ORDER

DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
The Commissioner has developed a five-step sequential

inquiry to determine whether a claimant is disabled within the
meaning of the Act.
2007).

Parra v. Astrue, 481 F.3d 742, 746 (9th Cir.

See also 20 C.F.R. § 416.920.

Each step is potentially

dispositive.
At Step One the claimant is not disabled if the Commissioner
determines the claimant is engaged in substantial gainful
activity.

20 C.F.R. § 416.920(b).

See also Keyser v. Comm’r of

Soc. Sec., 648 F.3d 721, 724 (9th Cir. 2011).
At Step Two the claimant is not disabled if the Commissioner determines the claimant does not have any medically severe
impairment or combination of impairments.
§ 416.920(c).

20 C.F.R.

See also Keyser, 648 F.3d at 724.

At Step Three the claimant is disabled if the Commissioner
determines the claimant’s impairments meet or equal one of a
number of listed impairments that the Commissioner acknowledges
are so severe they preclude substantial gainful activity.
C.F.R. § 416.920(a)(4)(iii).

20

See also Keyser, 648 F.3d at 724.

The criteria for the listed impairments, known as Listings, are
enumerated in 20 C.F.R. part 404, subpart P, appendix 1 (Listed
Impairments).
If the Commissioner proceeds beyond Step Three, she must
6 - OPINION AND ORDER

assess the claimant’s Residual Functional Capacity (RFC).

The

claimant’s RFC is an assessment of the sustained, work-related
physical and mental activities the claimant can still do on a
regular and continuing basis despite his limitations.
§ 416.945(a).

20 C.F.R.

See also Social Security Ruling (SSR) 96-8p.

“A

'regular and continuing basis' means 8 hours a day, for 5 days a
week, or an equivalent schedule."

SSR 96-8p, at *1.

In other

words, the Social Security Act does not require complete
incapacity to be disabled.

Taylor v. Comm’r of Soc. Sec. Admin.,

659 F.3d 1228, 1234-35 (9th Cir. 2011)(citing Fair v. Bowen, 885
F.2d 597, 603 (9th Cir. 1989)).
At Step Four the claimant is not disabled if the
Commissioner determines the claimant retains the RFC to perform
work he has done in the past.

20 C.F.R. § 416.920(a)(4)(iv).

See also Keyser, 648 F.3d at 724.
If the Commissioner reaches Step Five, she must determine
whether the claimant is able to do any other work that exists in
the national economy.

20 C.F.R. § 416.920(a)(4)(v).

Keyser, 648 F.3d at 724.

See also

Here the burden shifts to the

Commissioner to show a significant number of jobs exist in the
national economy that the claimant can perform.

Lockwood v.

Comm’r Soc. Sec. Admin., 616 F.3d 1068, 1071 (9th Cir. 2010).
The Commissioner may satisfy this burden through the testimony of
a VE or by reference to the Medical-Vocational Guidelines set

7 - OPINION AND ORDER

forth in the regulations at 20 C.F.R. part 404, subpart P,
appendix 2.

If the Commissioner meets this burden, the claimant

is not disabled.

20 C.F.R. § 416.920(g)(1).

ALJ'S FINDINGS
At Step One the ALJ found Plaintiff had not engaged
in substantial gainful activity since his April 7, 2010, onset
date.

Tr. 21.
At Step Two the ALJ found Plaintiff has the severe

impairments of COPD, asthma, history of pancreatitis, and history
of alcoholism.

Tr. 21.

At Step Three the ALJ concluded Plaintiff's impairments do
not meet or equal the criteria for any Listed Impairment from 20
C.F.R. part 404, subpart P, appendix 1.

The ALJ found Plaintiff

has the RFC to perform “light work . . . except he should avoid
exposure to respiratory irritants such as dust, fumes, and
odors."

Tr. 21.

At Step Four the ALJ concluded Plaintiff is able to perform
his past relevant work.
not disabled.

Accordingly, the ALJ found Plaintiff is

Tr. 23.

DISCUSSION
Plaintiff contends the ALJ erred when he (1) improperly
failed to adopt the findings of the March 25, 2010, decision and
8 - OPINION AND ORDER

(2) made findings at Step Four that were not supported by
substantial evidence in the record.
I.

The ALJ did not err when he failed to adopt the findings of
the March 25, 2010, decision.
The Social Security Act provides “[t]he findings and

decisions of the Commissioner . . . after a hearing shall be
binding upon all individuals who were parties to such hearing.”
42 U.S.C. § 405(h).

In addition, the Ninth Circuit recognizes a

“first administrative law judge's findings concerning [a]
claimant's residual functional capacity, education, and work
experience are entitled to some res judicata consideration in
subsequent proceedings.”

Chavez v. Bowen, 844 F.2d 691, 694 (9th

Cir. 1988)(citing Lyle v. Sec'y of Health & Human Servs., 700
F.2d 566, 568 n.2 (9th Cir. 1983)).

Accordingly, “[t]he

principles of res judicata apply to administrative decisions,
although the doctrine is applied less rigidly to administrative
proceedings than to judicial proceedings.”
693 (citation omitted).

Chavez, 844 F.2d at

“‘In the social security context, a

previous finding that a claimant is not disabled creates a
presumption of continuing nondisability.’”

Scott v. Colvin,

No. 13–CV–1189 W(DHB), 2014 WL 3797491, at *13 (S.D. Cal. Aug. 1,
2014)(citing Sam v. Astrue, No. 1:09cv0971 DLB, 2010 U.S. Dist.
LEXIS 131307, at *19–20 (E.D. Cal. Nov. 29, 2010)).

“‘The

claimant, in order to overcome the presumption of continuing
nondisability arising from the first administrative law judge's
9 - OPINION AND ORDER

findings of nondisability, must prove ‘changed circumstances'
indicating a greater disability.’”

Id. (quoting Chavez, 844 F.2d

at 693).
In the March 25, 2010, decision the ALJ found Plaintiff had
the capacity to perform light work except that he could only
occasionally kneel, crouch, crawl, or climb; he could not climb
ladders, ropes, or scaffolds; and he should avoid fumes, odors,
dust, gasses, poor ventilation, heights, and moving machinery.
Tr. 244.

As noted, in the June 22, 2012, decision currently

under review, the ALJ found Plaintiff had the capacity to perform
light work and should avoid exposure to respiratory irritants
such as dust, fumes, and odors.

The ALJ did not find Plaintiff

had limitation in his ability to kneel, crouch, crawl, or climb.
Plaintiff contends the ALJ erred in his June 22, 2012, decision
when he did not adopt the limitations of the March 2010 decision
related to Plaintiff’s ability to kneel, crouch, crawl, or climb.
When he declined to adopt the limitations of the March 2010
RFC, the ALJ acknowledged the holding of Chavez, noted an SSA
Ruling related to the application of Chavez, and explained the
effect of res judicata on this matter:
The Commissioner of Social Security issued
Acquiescence Ruling (AR) 97-4(9) in order to
clarify how SSA will apply the Chavez decision
. . . . . When adjudicating the subsequent claim
involving an unadjudicated period, adjudicators
will apply a presumption of continuing
nondisability and determine the claimant is not
disabled with respect to that period, unless the
10 - OPINION AND ORDER

claimant rebuts the presumption. The claimant may
rebut the presumption by showing a "changed
circumstance" affecting the issue of disability
with respect to the unadjudicated period, e.g., a
change in the claimant's age category under 20 CFR
416.963, an increase in the severity of the
claimant's impairments, the alleged existence of
an impairment not previously considered, or a
change in the criteria for determining disability.
Even if the claimant rebuts the presumption by
showing a change of material circumstances,
adjudicators then must give effect to certain
findings, as explained below, contained in the
final decision by an ALJ on the prior claim when
adjudicating the subsequent claim. For this
purpose, AR 97-4(9) applies only to a finding of a
claimant's residual functional capacity,
education, or work experience, or other finding
required at a step in the sequential evaluation
process for determining disability provided under
20 CFR 416.920 or 416.924, which was made in the
final decision on the prior disability claim.
Adjudicators must adopt such a finding from the
final decision on the prior claim in determining
whether the claimant is disabled with respect to
the unadjudicated period unless there is new and
material evidence relating to such a finding or
there has been a change in the law, regulations or
rulings affecting the finding or the method for
arriving at the finding.
Tr. 19 (emphasis added).
The ALJ here found Plaintiff established “changed
circumstances” from the previous ALJ’s decision because after the
March 2010 decision Plaintiff moved into the “advanced age”
category, which begins at 55.
416.963.

See 20 C.F.R. §§ 404.1563,

The ALJ, however, found the record contained sufficient

new and material evidence related to Plaintiff’s RFC to permit
the ALJ to “redetermine” Plaintiff’s RFC.

Specifically, the ALJ

noted records of treatment that Plaintiff received after the
11 - OPINION AND ORDER

March 2010 decision do not support Plaintiff’s postural
limitations set out in the March 2010 RFC.

For example, in

August and December 2010 Plaintiff’s treating physician Sounak
Misra, M.D., noted Plaintiff had normal range of motion in his
joints and did not have any muscle weakness.

Tr. 214, 217.

Dr. Misra did not note any postural limitations.

The ALJ also

pointed out that nonexamining physician Richard Alley, M.D.,
opined in January 2011 that Plaintiff suffered from COPD and
hypertension.

Tr. 55.

Dr. Alley, however, also opined Plaintiff

was capable of medium work and should avoid exposure to fumes,
odors, dusts, gases, and poor ventilation.

Tr. 57.

On this record the Court concludes the ALJ did not err when
he failed to adopt the March 2010 RFC because he relied on
sufficient new and material evidence in the record to support his
decision.
II.

The ALJ did not err at Step Four.
Plaintiff contends the ALJ erred at Step Four when he found

Plaintiff could perform his past relevant work as that work was
generally performed in the national economy.
As noted, the ALJ found at Step Four that Plaintiff could
perform his past relevant work as a small-products assembler as
that job is generally performed in the national economy.
noted:

12 - OPINION AND ORDER

The ALJ

Although it was found in the prior ALJ decision
that the claimant could not return to his past
relevant work, the record does not indicate
whether the question was asked if he could do this
job as performed in the national economy.
Furthermore, due to new medical evidence the
claimant's current residual functional capacity is
not identical to that found in the prior ALJ
decision.
Tr. 23.

In the present proceeding “[t]he vocational expert

testified that as the claimant performed assembly work, it
involved exposure to respiratory irritants but as generally
performed in the national economy, it does not.

It is light

exertion work and does not require the performance of tasks
precluded by the claimant's residual functional capacity.”
Tr. 23.
On this record the Court concludes the ALJ did not err when
he did not adhere to the March 2010 Step Four finding and instead
found at Step Four that Plaintiff could perform his past relevant
work as that work is performed generally in the national economy
because the ALJ relied on sufficient new and material evidence in
the record to support his decision.

CONCLUSION
For these reasons, the Court AFFIRMS the decision of the

13 - OPINION AND ORDER

Commissioner and DISMISSES this matter.
IT IS SO ORDERED.
DATED this 1st day of October, 2014.

/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

14 - OPINION AND ORDER