Rowan v. Commissioner of Social Security Administration

          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. ...