Marshall v. Commissioner Social Security Administration

Filing 15

OPINION AND ORDER. The Commissioner's decision is AFFIRMED and this case is DISMISSED. See formal OPINION AND ORDER. Signed on 6/10/2015 by Chief Judge Ann L. Aiken. (rh)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JEFFREY MARSHALL,
Plaintiff,

v.
CAROLYN W. COLVIN,
Commissioner of Social
Security,
Defendant.
H. Peter Evans
Law Office of H. Peter Evans
610 S.W. Broadway, Suite 405
Portland, Oregon 97205
Attorney for plaintiff
Billy Williams
Ronald K. Silver
United States Attorney's Office
1000 S.W. Third Avenue, Suite 600
Portland, Oregon 97201
Nancy A. Mishalanie
Social Security Administration
Office of General Counsel
701 Fifth Avenue, Suite 2900 M/S 221A
Seattle, Washington 98104
Attorneys for defendant
Page 1 - OPINION AND ORDER

Case No. 3:14-cv-00650-AA
OPINION AND ORDER

AIKEN, Chief Judge:
Plaintiff Jeffrey Marshall brings this action pursuant to the
Social Security Act

("Act")

to obtain judicial review of a final

decision of the Commissioner of Social Security ("Commissioner").
The

Commissioner

denied

plaintiff's

disability insurance benefits
below,

("DIB").

application

for

Title

II

For the reasons set forth

the Commissioner's decision is affirmed and this case is

dismissed.
PROCEDURAL BACKGROUND
This case has a long procedural history.

Plaintiff filed an

application for DIB on April 15, 2003. Tr. 74. His application was
denied initially and upon reconsideration. Id. After a hearing, the
Administrative Law Judge ("ALJ") issued a decision on September 29,
2006, finding plaintiff not disabled within the meaning of the Act.
Tr. 74-82. Plaintiff did not seek review of that decision.
On June 7, 2010, plaintiff filed a new application for DIB.
Tr.

178-84. After the application was denied initially and upon

reconsideration,
ALJ. Tr.

88-94,

administrative

plaintiff timely requested a hearing before an
95-101, 115-16. On February 23 and June 5, 2012,
hearings

were

held,

wherein

plaintiff

was

represented by counsel and testified, as did a vocational expert.
Tr.

29-43,

44-59.

On July 19,

2012,

the ALJ issued a

decision

finding plaintiff not disabled within the meaning of the Act. Tr.
15-21. The Appeals Council granted plaintiff's request for review
and affirmed the ALJ' s

finding.

filed a complaint in this Court.
Page 2 - OPINION AND ORDER

Tr.

3-5.

Thereafter,

plaintiff

STATEMENT OF FACTS

Born on December 3, 1957, plaintiff was 48 years old on the
amended alleged onset date of disability and 54 years old at the
time of the second and third hearings. Tr. 48. Plaintiff graduated
from high school and attended two years of college. Tr. 81, 272. He
worked previously as an excavator and owned his own business. Tr.
48,

50.

Plaintiff initially asserted disability as of April 1,

2003; however, he amended the onset date to September 30, 2006, to
coincide

with

the

previously-adjudicated

period.

Tr.

47-48.

Plaintiff alleges disability due to numbness in his hands and legs,
gout, diabetes, and neck, back, shoulder, and knee pain. Tr. 34-35,
271.
STANDARD OF REVIEW

The 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. Hammock v. Bowen, 879 F.2d 498,
501

(9th Cir.

scintilla.

1989).

Substantial evidence is "more than a mere

It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971)

(citation and internal quotations

omitted) . The court must weigh "both the evidence that supports and
detracts

from

Heckler,

807

interpretations

the
F.2d
of

[Commissioner's]
771,
the

772
evidence

conclusions."

(9th
are

Cir.

Martinez

1986).

insignificant

v.

Variable
if

the

Commissioner's interpretation is rational. Burch v. Barnhart, 400
F.3d 676, 679 (9th Cir. 2005).
Page 3 - OPINION AND ORDER

The

initial

burden

of

proof

rests

upon

the

claimant

to

establish disability. Howard v. Heckler, 782 F.2d 1484, 1486 (9th
Cir. 1986). To meet this burden, the claimant must demonstrate an
"inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
. to last for a continuous period of not less

can be expected .

than 12 months." 42 U.S.C.
The

Commissioner

§

has

423 (d) (1) (A).
established

a

five-step

sequential

process for determining whether a person is disabled.
Yuckert, 482 U.S. 137, 140 (1987); 20 C.F.R.
Commissioner

determines

whether

a

§

Bowen v.

404.1502. First, the

claimant

is

engaged

in

"substantial gainful activity." Yuckert, 482 U.S. at 140; 20 C.F.R.
§

404.1520(b). If so, the claimant is not disabled.
At step two, the Commissioner evaluates whether the claimant

has a "medically severe impairment or combination of impairments."
Yuckert,

482

U.S.

at

140-41;

20

C.F.R.

§

404.1520(c).

If

the

claimant does not have a severe impairment, he is not disabled.
At

step

three,

the

Commissioner

determines

whether

the

claimant's impairments, either singly or in combination, meet or
equal

"one

of

[Commissioner]

a

number

acknowledges

of

listed

are

so

severe

substantial gainful activity." Yuckert,
C.F.R.

§

404.1520(d).

If

so,

the

impairments
as

482 U.S.

claimant

is

to

that

the

preclude

at 140-41;

20

presumptively

disabled; if not, the Commissioner proceeds to step four. Yuckert,
482 U.S. at 141.
At step four, the Commissioner resolves whether the claimant
Page 4 - OPINION AND ORDER

can still perform "past relevant work." 20 C.F.R.
the claimant can work,

he is not disabled;

404.1520(f). If

§

if he cannot perform

past relevant work, the burden shifts to the Commissioner. At step
five, the Commissioner must establish that the claimant can perform
other work existing in significant numbers in the national and
local

economy.

Yuckert,

482

U.S.

at

141-42;

20

C.F.R.

§

404.1520(g). If the Commissioner meets this burden, the claimant is
not disabled. 20 C.F.R.

§

404.1566.

ADMINISTRATIVE FINDINGS

At step one of the five-step sequential evaluation process
outlined

above,

substantial
previous

the

gainful

ALJ

found

activity

final decision.

Tr.

that

plaintiff

subsequent

engaged

in

the

Commissioner's

Accordingly,

20-21.

to

had

the ALJ found

plaintiff not disabled under the Act. Tr. 21.
The

Appeals

determination,

Council

explaining

disagreed
that

with

the

ALJ

the

ALJ's

incorrectly

step
relied

one
on

plaintiff's gross income, rather than applying the three tests for
self-employed individuals. Tr. 5. Nevertheless, the Appeals Council
determined that plaintiff did not present sufficient evidence of
changed

circumstances

nondisability.

to

rebut

Id. Therefore,

the

presumption

of

continuing

the Appeals Council concluded that

plaintiff was not disabled within the meaning of the Act before his
date last insured of September 30, 2007. Id.
DISCUSSION

This case hinges on whether res judicata applies to bar review
of

plaintiff's

DIB

claim.

Page 5 - OPINION AND ORDER

The Act

"grants

to

district

courts

jurisdiction to review only 'final decisions' of the Commissioner."
Klemm v. Astrue,

543 F.3d 1139,

1144

(9th Cir.

2008)

(citing 42

U.S.C. § 405(g)); see also 42 U.S.C. § 405(h). Thus, res judicata
applies

to

bar

reconsideration

of

prior

claims

where

the

Commissioner has previously made a final decision premised "on the
same

facts

and

on

the

same

issue

or

issues."

20

C.F.R.

§

404.957(c) (1). Nonetheless, "where it has been found that new and
material evidence exists in the present record," the claimant may
"be entitled to a favorable finding on an issue previously decided
against him." SSR 68-12a, available at 1968 WL 3926. Similarly, a
prior claim may be reopened within a certain time frame or the
presumption of continuing nondisability may be overcome based on
changed circumstances, which can include the existence of new and
material

evidence

evincing

that

the

claimant's

condition

has

worsened. See SSR 97-4, available at 1997 WL 740404 (interpreting
Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988)); see also Fair v.
Bowen, 885 F.2d 597, 600 (9th Cir. 1989)

(citing Green v. Heckler,

803 F. 2d 528, 530 (9th Cir .. 1986)).
Initially,
acknowledge

the

nondisability;
formulating

plaintiff's brief does not address or otherwise
Appeals

rather,

his

Council's

finding

of

continuing

he argues that the Commissioner erred in

residual

functional

capacity,

rejecting

his

subjective symptom testimony, and at step two. Pl.'s Opening Br. 511.

The Commissioner explicitly raised this

response brief,

shortcoming in its

however plaintiff declined to file a reply.

See

Bojorquez v. Wells Fargo Bank, NA, 2013 WL 6055258, *5 (D.Or. Nov.
Page 6 - OPINION AND ORDER

7,

2 013)

(" [ i] f

a party fails

to counter an argument that the

opposing party makes in a motion, the court may treat that argument
as

conceded")

(citation

and

internal

quotations

and

brackets

omitted).
Regardless,

the ALJ's 2006 decision became administratively

final and binding when plaintiff failed to file an appeal. Tr. 7482. Plaintiff asserts the same physical impairments in the case at
bar as he did in his prior claim. Tr. 78-79, 178, 271, 319, 327,
390.

As

unless

such,
he

plaintiff

presents

is

new

ineligible
and

for

material

disability benefits

evidence

of

changed

circumstances.
Plaintiff contends on appeal that his preexisting conditions
worsened after the ALJ's 2006 decision. Pl.'s Opening Br. 3. The
record before the Court is to the contrary. In filing his current
application,

plaintiff

reported

to

the

Social

Security

Administration "that nothing had changed since the last time he
filed except that he has seen one new Dr." Tr.
records

from

on

or

around

the

relevant

time

269.

The medical

period

plaintiff's complaints of ongoing back and knee pain,
however,

there

is

no

worsened. 1 Compare Tr.
Finally,

indication
319,

327,

that
390,

these
with Tr.

reflect

and gout;

conditions
349,

400,

have
402.

plaintiff did not obtain a diagnosis for any discrete,

previously unevaluated condition until well after the date last

1

The record evinces that plaintiff contacted his doctor on
three occasions between September 30, 2006, and September 30,
2007; once, for a physical exam and, twice, to obtain
prescription refills. Tr. 319, 327.
Page 7 - OPINION AND ORDER

insured. Tr. 391, 403.
In sum, plaintiff failed to present any evidence of changed
circumstances prior to September 30, 2007. Therefore, plaintiff has
not rebutted the presumption of continuing nondisability and res
judicata applies.
CONCLUSION
The

Commissioner's

decision

is AFFIRMED

DISMISSED.
IT IS SO ORDERED.
Dated this

~y

of June 2015.

Ann Aiken
United States District Judge

Page 8 - OPINION AND ORDER

and

this

case

is