Orosco v. Commissioner Social Security Administration

Filing 16

OPINION AND ORDER: For the reasons stated, I find the ALJs decision was supported by substantial evidence. Accordingly, I AFFIRM the decision. This case is DISMISSED with prejudice. Signed on 2/15/2019 by Judge Michael W. Mosman. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

ASHLEY O.,1
Plaintiff,
v.

No. 3:17-cv-02060-MO
OPINION AND ORDER

NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

MOSMAN, J.,
Plaintiff Ashley O. (“Plaintiff”) seeks judicial review of the Commissioner of Social
Security’s decision denying her application for Disability Insurance Benefits (DIB) and
Supplemental Security Income (SSI) benefits. I have jurisdiction under 42 U.S.C. § 405(g) to
review the decision of the Administrative Law Judge (ALJ). For the reasons stated below, I
AFFIRM the ALJ’s decision.

1

In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the nongovernmental party in this case.
1 – OPINION AND ORDER

PROCEDURAL BACKGROUND
Plaintiff filed an application for DIB with a protective filing date of November 30, 2010,
and an application for SSI benefits with a protective date of March 30, 2011. Tr. 1077. In both
applications, Plaintiff alleged disability beginning on January 31, 2006. Id. Both claims were
initially denied on June 24, 2011, and denied again upon reconsideration on April 2, 2012. Id. A
hearing was held before Administrative Law Judge Jo Hoenninger on July 25, 2013. Id. The
ALJ denied Plaintiff’s claims on August 13, 2013, finding that Plaintiff was not disabled, and the
Appeals Council denied review. Tr. 22, 1077.
Upon denial, Plaintiff requested review by this Court. Judge Marco A. Hernandez
reversed and remanded Plaintiff’s claim for further proceedings on April 18, 2016. Tr. 1136.
Judge Hernandez concluded that “the record contain[ed] sufficient evidence to raise the
possibility that Plaintiff may meet the criteria for 12.05C, but [did] not conclusively establish her
entitlement to this finding.” Id. Specifically, Judge Hernandez noted that the validity of
Plaintiff’s IQ scores needed to be addressed by the ALJ, and that Plaintiff’s educational and
work history raised issues about whether onset of her impairment began before age twenty two.2
Id.
Following the ALJ’s denial of her claims, Plaintiff filed subsequent claims for DIB and
SSI benefits on November 17, 2014, and August 14, 2015 respectively. Tr. 1077. Per Judge
Hernandez’s order, the Appeals Council remanded Plaintiff’s case for a supplemental hearing on
July 25, 2016, and the ALJ consolidated both the old and new claim files into a single record. Id.

The question of whether Plaintiff’s impairment onset before age twenty-two was not addressed
in the subsequent briefings due to a change in the Social Security Administration’s Listing of
Impairments used to evaluate claims involving mental disorders. Revised Med. Criteria for
Evaluating Mental Disorders, 81 Fed. Reg. 66, 138 (Sept. 26, 2016). The change took place after
the Appeals Council remanded Plaintiff’s case.
2

2 – OPINION AND ORDER

The supplemental hearing was held on May 23, 2017, and on August 25, 2017 the ALJ again
issued a finding that Plaintiff was not disabled. Tr. 1077–89.
THE ALJ’S FINDINGS
The ALJ made her decision based upon the five-step sequential evaluation process
established by the Secretary of Health and Human Services. See Tackett v. Apfel, 180 F.3d 1094,
1098–99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520. At the first four steps of the process, the
burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift
to the Commissioner. Tackett, 180 F.3d at 1098.
At Step One, the ALJ determined that Plaintiff did not engage in substantial gainful
activity since the alleged onset date of January 31, 2006. Tr. 1078. At Steps Two and Three, the
ALJ determined that Plaintiff had severe impairments of back strain, borderline intellectual
functioning, affective disorder, and anxiety disorder. But the ALJ found that none of these
impairments alone or in combination met or medically equaled the severity of an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 1080–83.
Next, the ALJ determined that Plaintiff had the residual functional capacity (RFC)
to perform medium work as defined in 20 CFR §§ 404.1567(c) and
416.97(c), except that she can frequently climb ramps and stairs,
occasionally climb ladders, ropes, and scaffolds. She can
occasionally kneel, crouch, and crawl. She can frequently finger
and handle with the right upper extremity. She can understand and
remember simple instructions and make simple work-related
decisions. She has sufficient concentration, persistence, and pace
to complete simple, routine tasks for a normal workday and
workweek with normal breaks. She should only have occasional,
brief interactions with coworkers and the general public. She
should have no over the shoulder supervision. She should be in a
workplace with few changes to the work setting and work
processes.

Tr. 1083.
3 – OPINION AND ORDER

At Step Four, the ALJ determined that Plaintiff was incapable of performing any past
relevant work. At Step Five, the ALJ found that jobs existed in significant numbers in the
national economy that Plaintiff could perform, and thus concluded that Plaintiff was not
disabled. Tr. 1087–89.
STANDARD OF REVIEW
I review the ALJ’s decision to ensure the ALJ applied proper legal standards and that the
ALJ’s findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Bray v.
Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (explaining that the ALJ’s
decision must be supported by substantial evidence and not based on legal error). “‘Substantial
evidence’ means more than a mere scintilla, but less than a preponderance; it is such relevant
evidence as a reasonable person might accept as adequate to support a conclusion.” Lingenfelter
v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006)). The Commissioner’s decision must be upheld if it is a rational
interpretation of the evidence, even if there are other possible rational interpretations.
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Where the evidence can support
affirming the ALJ’s decision, the reviewing court may not substitute its judgment for that of the
ALJ. Robbins, 466 F.3d at 882.
DISCUSSION
Plaintiff makes three arguments as to why the Commissioner’s decision to deny her
claims for disability benefits was incorrect. Plaintiff first asks me to apply a former version of
Listing 12.05C to this case under the law of the case doctrine, arguing that I have discretion to
choose which listing to apply. Plaintiff claims that the ALJ erred by not doing what Judge
Hernandez ordered, instead applying the criteria of the new Listing 12.05. If I do not apply the

4 – OPINION AND ORDER

former version of Listing 12.05C, Plaintiff asks that that I find that Judge Hernandez’s
affirmation of the ALJ’s rejection of Dr. Duvall’s opinion does not stand as law of the case.
Finally, if I both apply the new version of Listing 12.05 and uphold the ALJ’s rejection of Dr.
Duvall’s opinion, Plaintiff asks that I find the ALJ erred in failing to sufficiently develop the
record because the medical records are outdated and do not address the new criteria of Listing
12.05. In all three scenarios Plaintiff argues for remand of the case and reversal of the ALJ’s
decision.
I.

Which Version of Listing 12.05 Should Apply
Plaintiff’s first argument is that I should apply the 2016 version of Listing 12.05C in my

review of the ALJ’s most recent decision. Plaintiff’s case was remanded by the Appeals Council
on July 25, 2016. Her supplemental hearing was held on May 23, 2017. On September 26,
2016, the Social Security Administration (SSA) announced it would be changing the criteria in
the Listing of Impairments used to evaluate claims involving mental disorders. These changes
became effective January 17, 2017—before Plaintiff’s supplemental hearing occurred. Revised
Med. Criteria for Evaluating Mental Disorders, 81 Fed. Reg. 66, 138 (Sept. 26, 2016). The SSA
explained when the new rules would be applied:
This means that we will use these final rules on and after their
effective date, in any case in which we make a determination or
decision. We expect that Federal courts will review our final
decisions using the rules that were in effect at the time we issued
the decisions. If a court reverses our final decision and remands a
case for further administrative proceedings after the effective date
of these final rules, we will apply these final rules to the entire
period at issue in the decision we make after the court's remand.

Id. at n.1.

5 – OPINION AND ORDER

Plaintiff asks me to apply the law of the case doctrine in deciding which listing should
apply. The law of the case doctrine states that “a court is generally precluded from reconsidering
an issue that has already been decided by the same court, or a higher court in the identical case.”
Thomas v. Bible, 983 F.2d 152, 154 (9th Cir. 1993). Certain circumstances permit a court
discretion to “reopen a previously resolved question.” Id. at 155. Courts may depart from the
law of the case when: “(1) the first decision was clearly erroneous; (2) an intervening change in
the law has occurred; (3) the evidence on remand is substantially different; (4) other changed
circumstances exist; or (5) a manifest injustice would otherwise result.” Id.
Plaintiff claims that because I have discretion to depart from the law of the case, I should
also have discretion to adhere to the law of the case. The changed listing criteria create an
intervening change in law—or in the alternative, other circumstances—therefore providing me
discretion to apply the old Listing 12.05C as the law of the case. Judge Hernandez remanded
this case for further fact finding regarding the age of onset of Plaintiff’s disability. The ALJ did
not address the age of onset in her finding because she applied the new Listing 12.05 standards
and found Plaintiff was not disabled under the new criteria. Plaintiff therefore concludes that the
ALJ failed to follow Judge Hernandez’s order and this failure constitutes error. Plaintiff also
argues that Dr. Duvall’s opinion conclusively demonstrates Plaintiff met the criteria for the old
Listing 12.05C. I disagree for two reasons.
First, Judge Hernandez reversed for further fact-finding because the record contained
evidence to raise the possibility that Plaintiff met the former 12.05C Listing, but the record alone
did not conclusively establish her disability. This negates Plaintiff’s assertion that Dr. Duvall’s
opinion showed Plaintiff met the requirements of Listing 12.05C. Second, the ALJ’s application

6 – OPINION AND ORDER

of the new 12.05 Listing criteria to Plaintiff’s case is a rational interpretation of the SSA
guidance regarding implementation of the new Listings and when they are to be applied.
Plaintiff argues that because the SSA does not address which listing version will apply to
cases remanded before January 17, 2017, I should apply the old listing, or that I should choose
which listing I ought to apply. The first sentence of the SSA’s guidance explains that the SSA
will apply the new criteria in any proceeding occurring after the effective date, January 17, 2017.
Because Plaintiff’s second ALJ hearing occurred on May 23, 2017, after the change to Listing
12.05C took effect, the ALJ followed the instruction of the SSA and applied the new 12.05
Listing. For the aforementioned reasons, I find that the ALJ did not err in applying the new
12.05 Listing criteria.
II.

ALJ’s Rejection of Dr. Duvall’s opinion
Plaintiff next argues that even if I review the ALJ’s second decision using the new

Listing 12.05, the ALJ improperly rejected Dr. Duvall’s opinion. If a treating or examining
doctor’s opinion is contradicted by another doctors opinion, an ALJ may only reject the treating
doctor’s opinion by providing specific and legitimate reasons supported by substantial evidence.
Bayliss v. Barnhart, 427 F.3d 1211, 1216 (9th Cir. 2005) (citing Lester, 81 F.3d at 830–31). A
treating physician’s opinion based on a claimant’s subjective complaints that the ALJ has
properly discredited is a specific and legitimate reason for the ALJ rejecting the treating
physician’s opinion. Batson, 359 F.3d at 1195. Inconsistency between a treating provider’s
opinion and a claimant’s daily activities may also constitute a specific and legitimate reason to
discount that opinion. Ghanim v. Colvin, 763 F.3d 1154, 1162 (9th Cir. 2014).
In the previous hearing held in this Court, Judge Hernandez upheld the ALJ’s rejection
of Dr. Duvall’s opinion. Tr. 1133. Plaintiff argues that I should not preserve Judge Hernandez’s

7 – OPINION AND ORDER

finding because the listing changed, which demonstrates a change in the law. Plaintiff argues
that I should instead review whether the ALJ properly discounted Dr. Duvall’s opinion in the
second hearing in accordance with the new Listing 12.05.
Upon review of the record, I find that the outcome will not change regardless of which
listing version I apply to the ALJ’s rejection of Dr. Duvall’s opinion. In both decisions, the ALJ
explains the reasons she only afforded Dr. Duvall’s opinion partial weight. Judge Hernandez
found that other physician testimony on the record conflicted with Dr. Duvall’s to warrant his
application of the specific and legitimate reasons standard in his review of the ALJ’s rejection of
Dr. Duvall’s opinion. Judge Hernandez then found that the ALJ provided sufficiently specific
and legitimate reasons for affording Dr. Duvall’s opinion only partial weight. I agree with Judge
Hernandez’s holdings. Because the ALJ provided specific and legitimate reasons for giving
partial weight to Dr. Duvall’s opinion that were supported by substantial evidence, I find that the
ALJ did not err by discounting Dr. Duvall’s opinion.
III.

ALJ’s Duty to Develop the Record
Plaintiff’s final argument is that the ALJ erred when she failed to develop the record

further as to whether Plaintiff’s condition met the criteria of the new listing. Plaintiff points out
that under the new listing, if a claimant has an extreme limitation in adapting or managing
herself, she will meet the new listing criteria. The ALJ addressed Plaintiff’s capacity for
adapting and managing herself in her decision. Tr. 1085–86. The ALJ stated that “claimant’s
activities, many of which she performed routinely over the longitudinal period, strongly suggest
that she remained capable of greater cognitive and social functioning.” The ALJ noted that
Plaintiff was able to
regain custody of her young child, who she indicated required
considerable attention and treatment in addressing the child’s
8 – OPINION AND ORDER

behavioral issues. In caring for her child, the claimant was able to
take him to and from school and to work with other providers to
take care of her child. She was able to provide basic needs,
preparing simple meals and shelter. The claimant also remained
capable of attending to her own personal care.

Tr. 1084–85. The ALJ did take into consideration the new criteria and developed the
record accordingly.
Plaintiff also argues that the ALJ relied on four-year-old examination reports from Dr.
Duvall and the state consultant’s opinions. Plaintiff provides no legal or other support for why
relying on records that are four years old is inappropriate, nor any evidence that Plaintiff’s
condition has changed. The burden of proof remains with Plaintiff for Steps One through Four.
Bustamante v. Massanari, 262 F.3d 949, 953–54 (9th Cir. 2001). Therefore, for this reason, and
because the ALJ specifically addressed the criteria of the new Listing 12.05, I disagree that the
ALJ erred in failing to provide examinations of Plaintiff that were more recent that the existing
evidence.
CONCLUSION
For the reasons stated, I find the ALJ’s decision was supported by substantial evidence.
Accordingly, I AFFIRM the decision. This case is DISMISSED with prejudice.

IT IS SO ORDERED.
DATED this ____ day of February, 2019.
15th
___________________________
MICHAEL W. MOSMAN
Chief United States District Judge

9 – OPINION AND ORDER