United States District Court, D. Arizona
ORDER
Honorable John J. Tuchi United States District Judge
At
issue is the denial of Plaintiff Tammy Lynn Rowan's
Application for Disability Insurance Benefits
(“DIB”) by the Social Security Administration
(“SSA”) under the Social Security Act (“the
Act”). Plaintiff filed a Complaint (Doc. 1) with this
Court seeking judicial review of that denial, and the Court
now addresses Plaintiff's Opening Brief (Doc. 19, Pl.
Br.), Defendant SSA Commissioner's Opposition (Doc. 25,
Def. Br.), and Plaintiff's Reply (Doc. 33, Reply). The
Court has reviewed the briefs and Administrative Record (Doc.
11, R.) and now reverses the Administrative Law Judge's
decision (R. at 1441.)
I.
BACKGROUND
This
case has a lengthy procedural background that involves two
separate applications for DIB for the same period of
disability. The Court has reviewed the facts and evidence in
their entirety and finds it unnecessary to provide a complete
summary here. Accordingly, only pertinent information will be
discussed.
A.
First Application
On
January 11, 1999, Plaintiff filed an application for DIB,
alleging a period of disability beginning March 30, 1991 (R.
at 1592-93.) Following a hearing, Administrative Law Judge
(“ALJ”) Ronald Robins issued a decision in
September 2000 denying Plaintiff's claim. (R. at
1589-98.) ALJ Robins determined that Plaintiff had the
following severe impairments: “hypertension, headaches,
obesity, periodic depression associated with general medical
condition, and generalized anxiety.” (R. at 1597.)
Later in his analysis, ALJ Robins concluded that because
Plaintiff had the residual functional capacity to perform her
past relevant work, she was not disabled under the Act. (R.
at 1598.) This decision became final after the Appeals
Council denied Plaintiff's request for review and
Plaintiff did not seek judicial review. (R. at 101.)
B.
Current Application
On
September 11, 2006, Plaintiff filed a new application for
DIB, alleging a period of disability beginning on March 31,
1991. (R. at 101.) The parties do not dispute that
Plaintiff's date last insured (“DLI”) was
June 30, 1995. (Pl. Br. at 10, Def. Br. at 8.) On February 6,
2009, Plaintiff attended a hearing held before ALJ Larry
Johnson. (R. 45-64.) ALJ Johnson was unaware of the file from
Plaintiff's previous application, and therefore decided
to postpone the hearing. (R. at 45-64.) Without holding a
hearing or considering all of Plaintiff's evidence, ALJ
Johnson denied Plaintiff's claim initially on March 26,
2009 (R. at 88), and upon reconsideration on July 10, 2009.
(R. at 98.) On December 9, 2009, the Appeals Council granted
Plaintiff's request for review, vacated the ALJ's
decision, and remanded the matter for further proceedings.
(R. at 108-10.)
On
November 10, 2010, Plaintiff testified at a hearing held
before ALJ James Seiler. (R. at 65-85.) On May 19, 2011, ALJ
Seiler issued a decision denying Plaintiff's application.
(R. at 1511-24.) ALJ Seiler determined that Plaintiff had the
following severe impairments: “hypertension, headaches,
obesity, status post back surgery, and depression.” (R.
at 1518.) ALJ Seiler further determined that although the
record confirmed that Plaintiff was diagnosed with
fibromyalgia in 2001, there was no evidence confirming its
existence prior to Plaintiff's DLI. (R. at 1518.) The
Appeals Council denied Plaintiff's request for review (R.
at 1-3), and the District Court affirmed ALJ Seiler's
decision. (R. at 1568-84.)
On June
15, 2016, the Ninth Circuit reversed the judgment of the
District Court and remanded with instructions to conduct a
new hearing on Plaintiff's disability claim and to
consider the record from Plaintiff's current and prior
applications. (R. at 1818-22.) The Ninth Circuit agreed with
ALJ Seiler that new evidence regarding a claimant's
impairments after the DLI can be relevant to an evaluation of
those impairments prior to the DLI. (R. at 1821.) But the
Ninth Circuit concluded that ALJ Seiler erred by not also
considering evidence from Plaintiff's previous record
when evaluating the merits of Plaintiff's current claim.
(R. at 1821.) The Ninth Circuit specifically ordered the SSA
to conduct a new hearing on Plaintiff's current claim and
to consider evidence from both of Plaintiff's
applications in making a decision. (R. at 1822.) The District
Court and Appeals Council remanded Plaintiff's claim in
accordance with the Ninth Circuit's Order. (R. at
1554-55, 1585-88.)
On
April 10, 2017, Plaintiff testified at a hearing held before
ALJ Patricia Bucci. (R. at 1486-1510.) ALJ Bucci issued a
decision on October 23, 2017, denying Plaintiff's
application. (R. at 1441-55.) Specifically, the ALJ
determined that Plaintiff did not have any severe
impairments. (R. at 1451.)
ALJ
Bucci began her analysis by evaluating the procedural posture
of Plaintiff's current claim. First, the ALJ found that
Plaintiff was prohibited from requesting a reopening and
revision of the September 2000 decision because
Plaintiff's request was untimely. (R. at 1445.) Plaintiff
argues in her Opening Brief, and the Court agrees, that
Plaintiff was not seeking to reopen her previous claim. (Pl.
Br. at 4.) Instead, Plaintiff argues that she has new and
material evidence that permits her to relitigate her
previously adjudicated period of disability. (Pl. Br. at
4-5.) ALJ Bucci then evaluated the applicability of the
presumption of continuing non-disability and the doctrine of
res judicata to Plaintiff's claim.[1] (R. at 1445-46.)
The ALJ determined that only the latter was applicable in
this context, but that Plaintiff's claim was not
precluded because of changes to the SSA Regulations since the
September 2000 decision.[2] (R. at 1446.)
ALJ
Bucci then substantively evaluated Plaintiff's claim. She
determined that Plaintiff's “hypertension,
headaches, obesity, depression, and generalized
anxiety” were medically determinable impairments,
though non-severe, contrary to ALJ Robins's decision in
2000. (R. at 1449, 1551.) ALJ Bucci evaluated some of
Plaintiff's newly submitted evidence of these five
impairments and determined it “would not change the
decision of nondisability made by Judge Robins.” (R. at
1149, 1451.) With regard to Plaintiff's alleged
fibromyalgia and vertebrogenic disorder, ALJ Bucci determined
that neither was a medically determinable impairment. (R. at
1449.) Specifically, the ALJ found that Plaintiff's 2001
diagnosis of fibromyalgia was irrelevant to her current
application, and there was no evidence to support a diagnosis
of vertebrogenic disorder prior to Plaintiff's DLI. (R.
at 1449.)
II.
LEGAL STANDARD
In
determining whether to reverse an ALJ's decision, the
district court reviews only those issues raised by the party
challenging the decision. See Lewis v. Apfel, 236
F.3d 503, 517 n.13 (9th Cir. 2001). The court may set aside
the Commissioner's disability determination only if the
determination is not supported by substantial evidence or is
based on legal error. Orn v. Astrue, 495 F.3d 625,
630 (9th Cir. 2007). Substantial evidence is more than a
scintilla, but less than a preponderance; it is relevant
evidence that a reasonable person might accept as adequate to
support a conclusion considering the record as a whole.
Id. To determine whether substantial evidence
supports a decision, the court must consider the record as a
whole and may not affirm simply by isolating a
“specific quantum of supporting evidence.”
Id. As a general rule, “[w]here 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) (citations
omitted).
To
determine whether a claimant is disabled for purposes of the
Act, the ALJ follows a five-step process. 20 C.F.R. §
404.1520(a). The claimant bears the burden of proof on the
first four steps, but the burden shifts to the Commissioner
at step five. Tackett v. Apfel, 180 F.3d 1094, 1098
(9th Cir. 1999). At the first step, the ALJ determines
whether the claimant is presently engaging in substantial
gainful activity. 20 C.F.R. § 404.1520(a)(4)(i). If so,
the claimant is not disabled and the inquiry ends.
Id. At step two, the ALJ determines whether the
claimant has a “severe” medically determinable
physical or mental impairment. 20 C.F.R. §
404.1520(a)(4)(ii). If not, the claimant is not disabled and
the inquiry ends. Id. At step three, the ALJ
considers whether the claimant's impairment or
combination of impairments meets or medically equals an
impairment listed in Appendix 1 to Subpart P of 20 C.F.R.
Part 404. 20 C.F.R. § 404.1520(a)(4)(iii). If so, the
claimant is automatically found to be disabled. Id.
If not, the ALJ proceeds to step four. Id. At step
four, the ALJ assesses the claimant's RFC and determines
whether the claimant is still capable of performing past
relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). If so,
the claimant is not disabled and the inquiry ends.
Id. If not, the ALJ proceeds to the fifth and final
step, where he determines whether the claimant can perform
any other work in the national economy based on the
claimant's RFC, age, education, and work experience. 20
C.F.R. § 404.1520(a)(4)(v). If so, the claimant is not
disabled. Id. If not, the claimant is disabled.
Id.
III.
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