Jacobs v. Commissioner Social Security Administration

Filing 13

Opinion and Order. The Court REVERSES the decision of the Commissioner and REMANDS this matter pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings. Signed on 2/17/21 by Judge Anna J. Brown. See attached Opinion and Order for full text. (bb)

Case 6:20-cv-00334-BR

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
JESSICA M. J.,1
Plaintiff,

6:20-cv-00334-BR
OPINION AND ORDER

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
ARI D. HALPERN
Halpern Law Group, P.C.
62910 O.B. Riley Rd., Ste. 100
Bend, OR 97703
[phone]
Attorney for Plaintiff
BILLY J. WILLIAMS
United States Attorney
RENATA GOWIE
Assistant United States Attorney
1000 S.W. Third Avenue, Suite 600
Portland, OR 97204-2902
[phone]
In the interest of privacy this Court uses only the first
name and the initial of the last name of the nongovernmental
party in this case. Where applicable, this Court uses the same
designation for the nongovernmental party's immediate family
member.
1

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MICHAEL W. PILE
Acting Regional Chief Counsel
JEFFREY E. STAPLES
Special Assistant United States Attorney
Social Security Administration
701 5th Avenue, Suite 2900, M/S 221A
Seattle, WA 98104
[phone]
Attorneys for Defendant
BROWN, Senior Judge.
Plaintiff Jessica M. J. seeks judicial review of the final
decision of the Commissioner of the Social Security
Administration (SSA) in which the Commissioner denied
Plaintiff's application for Disability Insurance Benefits (DIB)
under Title II 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 REVERSES the
decision of the Commissioner and REMANDS this matter for further
administrative proceedings.

ADMINISTRATIVE HISTORY
I.

Prior Proceedings
On December 18, 2011, Plaintiff protectively filed an

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application for DIB benefits.

Filed 02/17/21

Tr. 14, 76.2

disability onset date of January 14, 2011.

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Plaintiff alleged a
On May 10, 2011,

Plaintiff's application was denied initially, and on October 14,
2012, Plaintiff's application was denied on reconsideration.
Tr. 76.

Plaintiff did not appeal the denial of this

application.

Pl.'s Br. (#9) at 1.

On December 20, 2013, Plaintiff again protectively filed an
application for DIB benefits and alleged a disability onset date
of January 14, 2011.

Tr. 14, 76.

On June 10, 2014, Plaintiff=s

application was denied initially, and on November 14, 2014,
Plaintiff's application was denied on reconsideration.

Tr. 76.

Plaintiff did not appeal the denial of this application.

Pl.'s

Br. (#9) at 1.
II.

Current Proceedings
On January 27, 2016, Plaintiff protectively filed her

current application for DIB benefits.

Tr. 14, 197.

Plaintiff

again alleges a disability onset date of January 14, 2011.
Tr. 14, 197.

Plaintiff=s application was denied initially and on

reconsideration.

On February 3, 2017, Plaintiff filed a request

for hearing before an Administrative Law Judge (ALJ).

An ALJ

Citations to the official Transcript of Record (#8) filed
by the Commissioner on July 17, 2020, are referred to as "Tr."
2

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held a hearing on November 5, 2018.

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Tr. 14, 32-68.

Plaintiff

and a vocational expert (VE) testified at the hearing.
Plaintiff was represented by an attorney at the hearing.
On January 2, 2019, the ALJ issued an opinion in which she
found Plaintiff was not disabled from November 15, 2014 (the day
after her last prior application was denied) to December 31,
2016 (her date last insured (DLI)), and, therefore, is not
entitled to benefits.
the Appeals Council.

Tr. 14-26.

Plaintiff requested review by

On January 2, 2020, the Appeals Council

denied Plaintiff's request to review the ALJ's decision, and the
ALJ's decision became the final decision of the Commissioner.
Tr. 1-4.

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000).

On February 29, 2020, Plaintiff filed a Complaint in this
Court seeking review of the Commissioner's decision.

BACKGROUND
Plaintiff was born on July 28, 1979.

Tr. 24, 197.

Plaintiff was 31 years old on her alleged disability onset date.
Tr. 75.

Plaintiff has a high-school education and obtained a

bachelor's degree in nursing.

Tr. 24, 43.

relevant work experience as a nurse.

Plaintiff has past

Tr. 24.

Plaintiff alleges disability due to Pelvic Floor Tension

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Myalgia, chronic endometriosis, chronic interstitial cystitis
(IC), and anxiety.

Tr. 75-76, 557, 1063.

Except as 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. 20-23.

STANDARDS
The initial burden of proof rests on the claimant to
establish disability.
(9th Cir. 2012).

Molina v. Astrue, 674 F.3d 1104, 1110

To meet this burden a claimant must

demonstrate her 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."
U.S.C. § 423(d)(1)(A).

42

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, 459B60 (9th Cir. 2001)).
The district court must affirm the Commissioner's decision
if it is based on proper legal standards and the findings are

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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 evaluating a claimant's
testimony, resolving conflicts in the medical evidence, and
resolving ambiguities.
(9th Cir. 2009).

Vasquez v. Astrue, 572 F.3d 586, 591

The court must weigh all of the evidence

whether it supports or detracts from the Commissioner's
decision.
Cir. 2008).

Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th
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.
1047, 1051 (9th Cir. 2012).

Ludwig v. Astrue, 681 F.3d

The court may not substitute its

judgment for that of the Commissioner.
F.3d 1063, 1070 (9th Cir. 2006).

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Widmark v. Barnhart, 454

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DISABILITY ANALYSIS
I.

The Regulatory Sequential Evaluation
At Step One the claimant is not disabled if the

Commissioner determines the claimant is engaged in substantial
gainful activity (SGA).

20 C.F.R. § 404.1520(a)(4)(i).

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.
§ 404.1509, 404.1520(a)(4)(ii).

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 the
listed impairments that the Commissioner acknowledges are so
severe as to preclude substantial gainful activity.
§ 404.1520(a)(4)(iii).

20 C.F.R.

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, he must
assess the claimant's residual functional capacity (RFC).

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The

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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 her limitations.
§ 404.1520(e).

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 she has done in the past.

20 C.F.R. § 404.1520(a)(4)(iv).

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

20 C.F.R. § 404.1520(a)(4)(v).

Keyser, 648 F.3d at 724-25.

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

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of a VE or by reference to the Medical-Vocational Guidelines (or
the grids) set 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. § 404.1520(g)(1).

ALJ'S FINDINGS
At the hearing on November 5, 2018, Plaintiff requested the
ALJ to reopen her two prior claims.

Tr. 14, 38-39.

The ALJ

denied Plaintiff's request on the grounds that Plaintiff had not
shown good cause for reopening the prior applications and "the
overall record supports a conclusion that the [Plaintiff]
continued to be not disabled through her date last insured of
December 31, 2016."

Tr. 14.

At Step One the ALJ found Plaintiff has not engaged in
substantial gainful activity from November 15, 2014 (as noted,
the day after Plaintiff's last prior application was denied), to
December 31, 2016.

Tr. 17.

At Step Two the ALJ found Plaintiff has the severe
impairments of chronic IC with hematuria, spastic pelvic floor
syndrome, and obesity.

Tr. 17.

At Step Three the ALJ concluded Plaintiff's medically
determinable impairments do not meet or medically equal one of

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the listed impairments in 20 C.F.R. part 404, subpart P,
appendix 1.

Tr. 18.

The ALJ found Plaintiff has the RFC to

perform light work with the following limitations:

cannot climb

ladders, ropes, or scaffolding; cannot be exposed to hazards
such as machinery and unprotected heights; and needs to have a
workstation within five minutes of a restroom.

Tr. 18-19.

At Step Four the ALJ concluded Plaintiff is unable to
perform her past relevant work.

Tr. 24.

At Step Five the ALJ found Plaintiff can perform other jobs
that exist in the national economy such as housekeeping-cleaner,
office helper, and production assembler.

Tr. 25.

Accordingly,

the ALJ found Plaintiff was not disabled from November 15, 2014,
through December 31, 2016.

Tr. 26.

DISCUSSION
Plaintiff contends the ALJ erred when she (1) denied
Plaintiff's request to reopen her prior applications; (2) failed
at Step Three to provide legally sufficient reasons supported by
substantial evidence in the record to show that Plaintiff's
impairments did not equal a listed impairment; (3) failed to
provide clear and convincing reasons supported by substantial
evidence in the record for discounting Plaintiff's testimony;

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(4) failed to provide legally sufficient reasons supported by
substantial evidence in the record for discounting the medical
opinions of Plaintiff's treating physicians; (5) failed to
provide legally sufficient reasons for rejecting lay-witness
statements; and (6) failed to include all of Plaintiff's
limitations in her assessment of Plaintiff's RFC and in her
hypothetical to the VE.
I.

The ALJ erred when she failed to reopen Plaintiff's prior
applications and when she improperly applied res judicata
to the prior administrative determinations.
Plaintiff contends the ALJ erred when she denied

Plaintiff's request to reopen the prior DIB applications, but,
nevertheless, reopened the claims de facto and then improperly
applied the doctrine of res judicata to support a finding that
Plaintiff is not disabled.
The Commissioner, however, contends the decision to reopen
a claim is discretionary and is not subject to review by this
Court.

In any event, the Commissioner contends the ALJ did not

de facto reopen Plaintiff's prior claims, did not give res
judicata effect to the prior finding that Plaintiff was not
disabled, and did not apply a presumption of continuing nondisability to Plaintiff's current application.

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A.

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Standards
42 U. S. C. § 405(g) restricts the subject-matter

jurisdiction of federal courts over Social Security cases to
“final decision[s] of the Commissioner of Social Security made
after a hearing.”

See also Johnson v. Shalala, 2 F.3d 918, 921

(9th Cir. 1993); Hoover v. Colvin, No. 3:13-cv-00823-SI, 2013 WL
6385925, at *2 (D. Or. Dec. 6, 2013).

If the requirements of

§ 405(g) are not satisfied, the Court has subject-matter
jurisdiction only if a claimant asserts a “colorable
constitutional claim.”
(1977).

Califano v. Sanders, 430 U.S. 99, 109

See also Hoover v. Colvin, No. 3:13-cv-00823-SI, 2013

WL 6385925, at *2 (D. Or. Dec. 6, 2013).
1.

Reopening
After "a decision becomes administratively final,

the [Commissioner]'s decision to reopen a claim is purely
discretionary."
1982).

Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir.

See also Kleem v. Astrue, 543 F.3d 1139, 1144 (9th Cir.

2008)("Because a denial of a motion to reopen is a discretionary
decision, it is not final and, thus, not generally reviewable by
a district court.").
A prior application may be reopened, however,
within four years of the initial determination (20 C.F.R.

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§ 404.988) and upon a showing of "good cause."
§ 404.989(a).
is furnished."

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20 C.F.R.

Good cause exists when "new and material evidence
20 C.F.R. § 404.989(a)(1).

The purpose of

§ 404.988, however, is to grant the Commissioner discretion to
reopen final decisions, but it does not impose an affirmative
obligation on the Commissioner to take any action.

20 C.F.R.

§ 404.988 (a determination “may” be reopened pursuant to
subsections therein if the relevant criteria are satisfied).
See also Taylor v. Heckler, 765 F.2d 872, 877 (9th Cir.1985)(the
Commissioner's decision to reopen a claim is purely
discretionary after an administrative decision becomes final).
The Commissioner's denial of a petition to reopen may only be
challenged on constitutional grounds.

Klemm v. Astrue, 543 F.3d

1139, 1144 (9th Cir. 2008)(citing Sanders, 430 U.S. at 109)).
See also Hoover v. Colvin, No. 3:13-cv-00823-SI, 2013 WL
6385925, at *4 (D. Or. Dec. 6, 2013).
2.

Res Judicata
The Social Security Act provides “[t]he findings

and decisions of the Commissioner of Social Security after a
hearing shall be binding upon all individuals who were parties
to such hearing.”

42 U.S.C. § 405(h).

In Chavez v. Bowen the

Ninth Circuit observed “the principles of res judicata apply to

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administrative decisions, although the doctrine is applied less
rigidly to administrative proceedings than to judicial
proceedings.”

844 F.2d 691, 693 (1988).

See also Vasquez v.

Astrue, 572 F.3d 586, 597 (9th Cir. 2009).
Social Security Regulations also provide the
"doctrine of res judicata applies in that we have made a
previous determination or decision . . . about your rights on
the same fact and on the same issues or issues, and this
previous determination or decision has become final."
§ 404.957(c)(1).

20 C.F.R.

“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.”

Acquiescence Ruling (AR), 97-49(9)(Dec. 3, 1997),

1997 WL 742758, at *3.

In other words, a claimant may rebut the

presumption by showing a “changed circumstance” affecting the
issue of disability such as an increase in the severity of the
claimant’s impairments, the existence of an impairment not
considered in the previous application, or a change in the
claimant’s age category.

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Analysis
At the hearing on November 5, 2018, Plaintiff

requested the ALJ to reopen her prior DIB claims on the ground
that good cause exists to do so.

Tr. 39-40.

The ALJ acknowledged Plaintiff's current application
was filed within four years of the determination of the prior
applications, but she found Plaintiff had not provided good
cause for reopening the prior applications.

Tr. 14.

The ALJ

noted her findings that Plaintiff was not disabled related only
to the period from November 15, 2014 (the day after the last
application was denied) to December 31, 2016 (Plaintiff's DLI).
Tr. 14.

The ALJ, however, stated she "reviewed and considered

all of the evidence in the record in this case, which includes
medical evidence dating as far back as November 2011."

Tr. 14.

Plaintiff, however, asserts the record includes new
evidence that establishes good cause to reopen her prior
applications, including lay-witness testimony, Plaintiff's
testimony and written statement, the medical opinions of her
treating physicians, and the underlying medical records.
Plaintiff contends all of this evidence is material because it
relates to her limitations beginning in 2011.

Although the ALJ

denied Plaintiff's request to reopen her prior applications,

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Plaintiff contends the ALJ de facto reopened those applications
when the ALJ considered all of the evidence of record "as far
back as November 2011" to determine whether Plaintiff was
disabled during the period in her current application.
Plaintiff relies on Lester v. Apfel, 81 F.3d 821 (9th Cir.
1995), and Lewis v. Apfel, 236 F.3d 503 (9th Cir. 2001).
In Lester the court noted:
There is an exception to the general rule that
courts may not review the Commissioner's decision
not to reopen, where the Commissioner considers
'on the merits' the issue of the claimant's
disability during the already-adjudicated period.
[citation omitted]. Where such a de facto
reopening occurs, the Commissioner's decision as
to the prior period is subject to judicial
review.
Lester, 81 F.3d at 827 n.3.
In Lewis the plaintiff filed an application for
benefits in 1991.

236 F.3d at 508.

On June 18, 1991, the

plaintiff's application was denied without an administrative
hearing.

The plaintiff did not appeal, but instead reapplied

for benefits in September 1992 and alleged a disability onset of
September 15, 1990.

At the hearing in June 1994 before an ALJ

the plaintiff sought to amend his disability onset date to March
1987.

The ALJ denied the plaintiff's request to amend, but the

ALJ considered evidence of the plaintiff's disability from

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before September 1990 when he made his May 1995 determination.
236 F.3d at 509.

The district court held the denial of the

plaintiff's earlier application in 1991 was res judicata on the
issue of disability up to the date of the denial.

Id.

On

appeal the Ninth Circuit held res judicata did not apply when
the ALJ "later considers 'on the merits' whether the claimant
was disabled during an already-adjudicated period."
510 (citing Lester v. Chater, 81 F.3d at 827 n.3).

236 F.3d at
The court

stated:
When an ALJ de facto reopens the prior
adjudication in that manner, the Commissioner's
decision as to the prior period is subject to
judicial review [citation omitted]. The ALJ knew
of the June 1991 denial of Lewis's 1991
application. Yet he considered evidence of
disability from as early as 1989, and he accepted
without comment the alleged onset date of
September 15, 1990. Under these circumstances it
is appropriate for the Court to treat the ALJ's
actions as a de facto reopening, and assume a
disability onset date of September 1990, as the
ALJ did.
236 F.3d at 510.
Here the ALJ was aware of Plaintiff's prior
applications; accepted without comment the alleged onset date of
January 14, 2011; and considered evidence of disability from as
early as November 2011.

Tr. 14.

The Commissioner contends the

ALJ did not de facto reopen the prior applications because the

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ALJ issued a decision that addressed only the period from
November 15, 2014, to December 31, 2016.

Def.'s Br. (#11) at 3.

As Plaintiff points out, however, the Ninth Circuit in
Lewis found a de facto reopening because the ALJ considered "on
the merits" whether the claimant was disabled during an alreadyadjudicated period.
in this case.

The Court finds the same reasoning applies

As noted, the ALJ stated she reviewed "all of the

evidence in the record . . . as far back as November 2011."
On this record the Court concludes the ALJ de facto
reopened Plaintiff's prior applications, and, therefore, the
Commissioner's decision for the prior period from January 14,
2011, to November 14, 2014, is subject to judicial review in
addition to the period from November 15, 2014, to December 21,
2016.
Plaintiff also contends the ALJ improperly gave the
prior nondisability finding res judicata effect by applying a
presumption of continuing nondisability to Plaintiff's current
application.

Plaintiff contends she has submitted new and

material evidence in support of her current application that is
different from the evidence submitted in support of her prior
applications.

Plaintiff also asserts she has alleged the mental

impairment of anxiety that was not part of the prior

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applications, and new regulations governing the evaluation of
mental impairments became effective January 17, 2017.

See

Revised Med. Criteria for Evaluating Mental Disorders, 81 Fed.
Reg. 66138 (Sept. 26, 2016).

Finally, Plaintiff argues the

Commissioner has also published new regulations governing the
evaluation of IC that became effective on March 18, 2015.

See

SSR 15-1p.
The Commissioner contends in response that the mere
fact the ALJ reached the same conclusion and made the same
decision as the prior administrative decisions does not
establish the ALJ gave those decisions res judicata effect.

The

Commissioner points out that the ALJ reviewed all of the records
from before and during the period at issue and entered findings
based on substantial evidence pertaining to the period from
November 15, 2014, to December 31, 2016.
On this record, however, the Court finds there is new
and material evidence supporting Plaintiff's current
application, Plaintiff has asserted a new impairment not
previously alleged, and there are new regulations for the
evaluation of IC and mental impairments.

Accordingly, the ALJ

improperly gave res judicata effect to the prior determinations
of nondisability for the period from January 14, 2011, to

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November 14, 2015.
In summary, the Court concludes (1) the ALJ de facto
reopened Plaintiff's prior applications, (2) the ALJ improperly
applied res judicata to the prior determinations when she
considered Plaintiff's current application, (3) there is new and
material evidence to support Plaintiff's current application,
(4) Plaintiff has alleged a new mental impairment of anxiety,
and (5) there are new and revised regulations regarding
evaluation of IC and mental impairments.

Thus, the Court finds

there are outstanding issues that must be resolved before a
determination of disability can be made.
Because the Court concludes further administrative
proceedings are required based on Plaintiff's first assignment
of error, it is not necessary for the Court to address the
remaining issues at this time.

REMAND
The decision whether to remand for further proceedings or
for payment of benefits generally turns on the likely utility of
further proceedings.

Carmickle, 533 F.3d at 1179.

The court

may "direct an award of benefits where the record has been fully
developed and where further administrative proceedings would

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Smolen, 80 F.3d at 1292.

The Ninth Circuit has established a three-part test "for
determining when evidence should be credited and an immediate
award of benefits directed."
1178 (9th Cir. 2000).

Harman v. Apfel, 211 F.3d 1172,

The court should grant an immediate award

of benefits when
(1) the ALJ has failed to provide legally sufficient
reasons for rejecting such evidence, (2) there are no
outstanding issues that must be resolved before a
determination of disability can be made, and (3) it is
clear from the record that the ALJ would be required
to find the claimant disabled were such evidence
credited.
Id.

The second and third prongs of the test often merge into a

single question:

Whether the ALJ would have to award benefits

if the case were remanded for further proceedings.

Id. at 1178

n.2.
On this record the Court concludes Plaintiff is
entitled to have her current claim adjudicated from the alleged
disability onset date of January 14, 2011, to December 31, 2016,
the DLI, based on the entire record related to Plaintiff's prior
applications for disability benefits and the regulations in
effect during that period.

Accordingly, the Court remands this

matter for further administrative proceedings.

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CONCLUSION
For these reasons, the Court REVERSES the decision of the
Commissioner and REMANDS this matter pursuant to sentence four
of 42 U.S.C. § 405(g) for further administrative proceedings.
IT IS SO ORDERED.
Dated this 17th day of February, 2021.
/s/ Anna J. Brown
______________________________________
ANNA J. BROWN
United States Senior District Judge

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