Anthony Gregg v. Michael J Astrue, No. 2:2012cv03223 - Document 16 (C.D. Cal. 2013)
Court Description: MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS by Magistrate Judge Jean P Rosenbluth. (twdb)
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 ANTHONY GREGG, 10 Plaintiff, 11 vs. 12 13 CAROLYN W. COLVIN, Acting Commissioner of Social Security,1 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) Case No. CV 12-3223-JPR MEMORANDUM OPINION AND ORDER REVERSING COMMISSIONER AND REMANDING FOR FURTHER PROCEEDINGS 16 17 I. 18 PROCEEDINGS Plaintiff seeks review of the Commissioner s final decision 19 denying his application for Social Security Supplemental Security 20 Income benefits ( SSI ). The parties consented to the 21 jurisdiction of the undersigned U.S. Magistrate Judge pursuant to 22 28 U.S.C. § 636(c). This matter is before the Court on the 23 parties Joint Stipulation, filed January 3, 2013, which the 24 Court has taken under submission without oral argument. For the 25 26 1 On February 14, 2013, Colvin became the Acting 27 Commissioner of Social Security. Pursuant to Federal Rule of Civil Procedure 25(d), the Court therefore substitutes Colvin for Michael 28 J. Astrue as the proper Respondent. 1 1 reasons stated below, the Commissioner s decision is reversed and 2 this matter is remanded for further proceedings. 3 II. BACKGROUND 4 Plaintiff was born on June 10, 1956, and has an 11th-grade 5 education. (Administrative Record ( AR ) 49, 143.) He 6 previously worked as a salesperson and a spray painter. (AR 17, 7 85.) 8 Plaintiff filed an application for SSI on September 15, 9 2006.2 (AR 78, 86.) In a written decision issued on April 25, 10 2008, an Administrative Law Judge ( ALJ ) determined that 11 Plaintiff was not disabled through the date of the decision. 12 78-86.) Plaintiff did not request review of the ALJ s April 25, 13 2008 decision. 14 (AR (AR 9.) On July 23, 2009, Plaintiff filed another application for 15 SSI. (AR 9, 143-64.) Plaintiff alleged that he had been unable 16 to work since July 12, 2009, because of respiratory and renal 17 failure, chronic obstructive pulmonary disease (COPD), 18 hyperlipidemia, neuropathy in both lower extremities, diabetes, 19 pancreatitis, depression, dialysis, heart problems, headaches, 20 colitis, and high blood pressure. (AR 87, 96.) His application 21 was denied initially, on November 17, 2009 (AR 72, 87-91), and 22 upon reconsideration, on February 25, 2010 (AR 73, 96-101). 23 On March 12, 2010, Plaintiff requested a hearing before an 24 ALJ. (AR 103-04.) A hearing was held on February 2, 2011, at 25 which Plaintiff, who was represented by counsel, appeared and 26 27 28 2 Plaintiff had also filed SSI applications on December 13, 2004, and June 30, 2005, which were both denied at the initial and reconsideration levels. (See AR 78.) 2 1 testified. (AR 40, 48-71.) In a written decision issued on 2 February 18, 2011, the ALJ determined that Plaintiff was not 3 disabled. (AR 9-18.) On March 3, 2011, Plaintiff requested 4 review of the ALJ s decision. (AR 37.) On February 8, 2012, the 5 Appeals Council denied Plaintiff s request for review. (AR 1-5.) 6 This action followed. 7 III. STANDARD OF REVIEW 8 Pursuant to 42 U.S.C. § 405(g), a district court may review 9 the Commissioner s decision to deny benefits. The ALJ s findings 10 and decision should be upheld if they are free of legal error and 11 supported by substantial evidence based on the record as a whole. 12 § 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 13 1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d 14 742, 746 (9th Cir. 2007). Substantial evidence means such 15 evidence as a reasonable person might accept as adequate to 16 support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter 17 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). 18 a scintilla but less than a preponderance. It is more than Lingenfelter, 504 19 F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880, 20 882 (9th Cir. 2006)). To determine whether substantial evidence 21 supports a finding, the reviewing court must review the 22 administrative record as a whole, weighing both the evidence that 23 supports and the evidence that detracts from the Commissioner s 24 conclusion. 25 1996). Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. If the evidence can reasonably support either affirming 26 or reversing, the reviewing court may not substitute its 27 judgment for that of the Commissioner. 28 3 Id. at 720-21. 1 IV. THE EVALUATION OF DISABILITY 2 People are disabled for purposes of receiving Social 3 Security benefits if they are unable to engage in any substantial 4 gainful activity owing to a physical or mental impairment that is 5 expected to result in death or which has lasted, or is expected 6 to last, for a continuous period of at least 12 months. 42 7 U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257 8 (9th Cir. 1992). 9 10 A. The Five-Step Evaluation Process The ALJ follows a five-step sequential evaluation process in 11 assessing whether a claimant is disabled. 20 C.F.R. 12 § 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 13 1995) (as amended Apr. 9, 1996). In the first step, the 14 Commissioner must determine whether the claimant is currently 15 engaged in substantial gainful activity; if so, the claimant is 16 not disabled and the claim must be denied. § 416.920(a)(4)(i). 17 If the claimant is not engaged in substantial gainful activity, 18 the second step requires the Commissioner to determine whether 19 the claimant has a severe impairment or combination of 20 impairments significantly limiting her ability to do basic work 21 activities; if not, the claimant is not disabled and the claim 22 must be denied. § 416.920(a)(4)(ii). If the claimant has a 23 severe impairment or combination of impairments, the third step 24 requires the Commissioner to determine whether the impairment or 25 combination of impairments meets or equals an impairment in the 26 Listing of Impairments ( Listing ) set forth at 20 C.F.R., Part 27 404, Subpart P, Appendix 1; if so, disability is conclusively 28 presumed and benefits are awarded. 4 § 416.920(a)(4)(iii). If the 1 claimant s impairment or combination of impairments does not meet 2 or equal an impairment in the Listing, the fourth step requires 3 the Commissioner to determine whether the claimant has sufficient 4 residual functional capacity ( RFC )3 to perform her past work; 5 if so, the claimant is not disabled and the claim must be denied. 6 § 416.920(a)(4)(iv). The claimant has the burden of proving that 7 she is unable to perform past relevant work. 8 1257. Drouin, 966 F.2d at If the claimant meets that burden, a prima facie case of 9 disability is established. Id. If that happens or if the 10 claimant has no past relevant work, the Commissioner then bears 11 the burden of establishing that the claimant is not disabled 12 because she can perform other substantial gainful work available 13 in the national economy. § 416.920(a)(4)(v). That determination 14 comprises the fifth and final step in the sequential analysis. 15 § 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257. 16 B. 17 At step one, the ALJ found that Plaintiff had not engaged in The ALJ s Application of the Five-Step Process 18 any substantial gainful activity since July 23, 2009, his most 19 recent application date. (AR 12.) At step two, the ALJ 20 concluded that Plaintiff had the following conditions of ill21 being: diabetes mellitus with retinopathy and peripheral 22 neuropathy; hypertension, status post cerebrovascular accident; 23 hyperlipidemia; and chronic obstructive pulmonary disease. (Id. 24 (citation omitted.)) The ALJ further found that the combination 25 of these impairments 26 27 28 3 RFC is what a claimant can still do despite existing exertional and nonexertional limitations. 20 C.F.R. § 416.945; see Cooper v. Sullivan, 880 F.2d 1152, 1155 n.5 (9th Cir. 1989). 5 1 causes significant limitation in the claimant s ability 2 to perform basic work activities. 3 claimant has a severe impairment. 4 (Id.) Therefore, the At step three, the ALJ determined that Plaintiff s 5 impairments did not meet or equal any of the impairments in the 6 Listings. (AR 13.) At step four, the ALJ found that Plaintiff 7 retained the RFC to perform light work4 except he can 8 occasionally climb ramps and stairs, but he must never climb 9 ladders, ropes, or scaffolds; and he can occasionally balance, 10 stoop, kneel, crouch, and crawl. (AR 14.) Based on the 11 vocational expert s testimony taken by the prior ALJ before his 12 April 25, 2008 decision, the ALJ concluded that Plaintiff could 13 perform his past relevant work as a salesperson as generally 14 performed in the national economy. (AR 17.) Accordingly, the 15 ALJ determined that Plaintiff was not disabled without reaching 16 step five of the evaluation process. (AR 18.) 17 V. RELEVANT FACTS 18 On September 23, 2009, Plaintiff was examined by consulting 19 internist Dr. John Sedgh. (AR 784-88.) After reviewing 20 Plaintiff s medical records and performing a physical 21 22 4 Light work is defined as involving lifting no more 23 than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. 20 C.F.R. § 416.967(b). The 24 regulations further specify that [e]ven though the weight lifted 25 may be very little, a job is in this category when it requires a 26 27 28 good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls. Id. A person capable of light work is also capable of sedentary work, which involves lifting no more than 10 pounds at a time and occasionally lifting or carrying [small articles] and may involve occasional walking or standing. § 416.967(a)-(b). 6 1 examination, Dr. Sedgh opined that Plaintiff retained the RFC for 2 light work except that he could only occasionally kneel, crouch, 3 or stoop. 4 (Id.) In November 2009, state-agency nonexamining physician Dr. P. 5 N. Ligot completed a physical RFC assessment and indicated that 6 Plaintiff s diagnoses included hypertension, status post cerebral 7 vascular accident, and respiratory failure/chronic obstructive 8 pulmonary disease. (AR 905-10.) Dr. Ligot opined that Plaintiff 9 retained the RFC for light work except that he could only 10 occasionally climb, stoop, kneel, crouch or crawl and should 11 never balance. (AR 906-07.) Moreover, because of Plaintiff s 12 COPD/respiratory failure and status post-cerebral vascular 13 accident, he should avoid concentrated exposure to hazards and 14 even moderate exposure to fumes, odors, dusts, gases, and poor 15 ventilation. (AR 908.) These findings were confirmed by state- 16 agency nonexamining physician Dr. R. E. Brooks on February 25, 17 2010. 18 (AR 936-38.) Before engaging in the five-step analysis, the ALJ noted 19 that Plaintiff failed to seek review of the ALJ s April 25, 2008 20 decision denying his application and therefore, that decision is 21 administratively final. (AR 9.) As a result, the ALJ found 22 that there is a presumption of non-disability arising from that 23 decision and that in order to overcome the presumption, Plaintiff 24 must prove changed circumstances indicating a greater 25 disability established by new and material evidence. (AR 9-10.) 26 The ALJ concluded that Plaintiff failed to rebut the presumption 27 of continuing non-disability and therefore I must adopt the 28 findings contained in the prior ALJ s April 25, 2008 decision. 7 1 (AR 10.) 2 At step two, the ALJ stated that his findings were based on 3 the prior ALJ s analysis of the medical records, introduced as 4 collateral estoppel and corroborated by the current medical 5 evidence[.] (AR 12.) In assessing Plaintiff s physical 6 impairments, the ALJ noted that he gave particular emphasis to 7 the opinions of Dr. Sedgh and the state-agency nonexamining 8 physicians, which he found to be persuasive. (Id.) 9 Thereafter, in determining Plaintiff s RFC, the ALJ again noted 10 that he based his assessment primarily on the opinions of the 11 nonexamining physicians and Dr. Sedgh, who found the claimant 12 capable of light work. (AR 14.) The ALJ explained that it is 13 evident that the State Agency doctors essentially adopted the 14 prior Administrative Law Judge decision and found no material 15 change of circumstance, as do I. (Id. (citation omitted).) 16 VI. DISCUSSION 17 Plaintiff alleges that the ALJ erred in determining that 18 Plaintiff had not overcome the continuing presumption of 19 nondisability arising from the ALJ s April 25, 2008 decision 20 denying Plaintiff s prior SSI application. 21 12.) (J. Stip. at 3-7, 10- Specifically, Plaintiff contends that his COPD is a new 22 impairment that was not raised in his prior application or 23 considered by the prior ALJ in his April 25, 2008 decision. 24 Stip. at 5.) (J. According to Plaintiff, [t]he presence of this new 25 impairment that previously was not considered constitutes a 26 change[] in circumstances that precluded the application of res 27 judicata. (Id.) Finally, Plaintiff notes that the nonexamining 28 state-agency physician opined that Plaintiff suffered limitations 8 1 related to his COPD that did not exist during the prior period, 2 which further demonstrates that there has been a change in 3 circumstances precluding the application of res judicata. (J. 4 Stip. at 5.) 5 A. 6 The principles of res judicata apply to administrative Applicable Law 7 decisions, although the doctrine is applied less rigidly to 8 administrative proceedings than to judicial proceedings. 9 v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). Chavez Normally, an ALJ s 10 findings that a claimant is not disabled creates a presumption 11 that the claimant continued to be able to work after that date. 12 Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009) (quoting 13 Lester, 81 F.3d at 827). The presumption does not apply, 14 however, if there are changed circumstances. Lester, 81 F.3d 15 at 827 (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 16 1985)); accord Acquiescence Ruling 97-4(9), 1997 WL 742758, at *3 17 ( When adjudicating the subsequent claim involving an 18 unadjudicated period, adjudicators will apply a presumption of 19 continuing nondisability and determine that the claimant is not 20 disabled with respect to that period, unless the claimant rebuts 21 the presumption . . . by showing a changed circumstance 22 affecting the issue of disability with respect to the 23 unadjudicated period[.] ). Examples of changed circumstances 24 precluding the application of res judicata to a subsequent 25 unadjudicated period of alleged disability include [a]n increase 26 in the severity of the claimant s impairment, a change in the 27 claimant s age category, as defined in the Medical-Vocational 28 Guidelines, where the claimant raises a new issue, such as the 9 1 existence of an impairment not considered in the previous 2 application, and where the claimant was unrepresented by 3 counsel at the time of the prior claim. Lester, 81 F.3d at 827- 4 28 (citations omitted); see also Acquiescence Ruling 97-4(9), 5 1997 WL 724758, at *3 (explaining that examples of changed 6 circumstances include a change in the claimant s age category 7 under 20 CFR 404.1563 or 416.963, an increase in the severity of 8 the claimant s impairment(s), the alleged existence of an 9 impairment(s) not previously considered, or a change in the 10 criteria for determining disability ). 11 B. 12 The ALJ s determination that Plaintiff failed to rebut the Analysis 13 presumption of continuing nondisability arising from the ALJ s 14 April 25, 2008 decision is not supported by substantial evidence. 15 Specifically, Plaintiff alleged a new impairment, COPD, in his 16 most recent application, and the ALJ determined, at step two, 17 that in combination with his other conditions it amounted to a 18 severe impairment. (AR 12, 87, 96-97.) Therefore, Plaintiff s 19 COPD was a new impairment that was not considered by the prior 20 ALJ in his April 25, 2008 decision. 21 86.) (Compare AR 9-18 with AR 78- Because Plaintiff alleged, and the ALJ determined, that 22 Plaintiff has a new impairment that was not considered by the 23 prior ALJ, it was improper for the ALJ to apply the presumption 24 of continuing nondisability when deciding the instant SSI 25 application. See, e.g., Lester, 81 F.3d at 828 (holding that 26 plaintiff s allegation of new impairment that was not raised in 27 prior application or addressed in prior decision and change in 28 plaintiff s age category each independent reason precluding 10 1 application of res judicata); Light v. Soc. Sec. Admin., 119 F.3d 2 789, 792 (9th Cir. 1997) (finding presumption of nondisability 3 rebutted by evidence of diagnosis of new impairment and evidence 4 that previous impairment had become increasingly severe, either 5 of which could have been basis for finding of disability either 6 independently or when aggregated with all of plaintiff s 7 preexisting infirmities); Vasquez, 572 F.3d at 597-98 (holding 8 that because Vasquez raised a new issue not before ALJ Stacy and 9 entered the closely approaching advanced age category, it was 10 improper for ALJ Rogers to apply a presumption of continuing non11 disability when deciding Vasquez s second application ). 12 Defendant argues that because the ALJ did not find that 13 Plaintiff s COPD was a severe impairment, the ALJ properly gave 14 res judicata effect to the prior ALJ s decision. 15 9.) (J. Stip. at The Ninth Circuit, however, rejected this argument in 16 Vasquez and found it irrelevant, because . . . a claimant 17 defeats the presumption of continuing nondisabilty by raising a 18 new issue in a later application. Vasquez, 572 F.3d at 598 n.9. 19 The Ninth Circuit explained that all an applicant has to do to 20 preclude the application of res judicata is raise a new issue in 21 the later proceeding. Id. (citation omitted). Acquiescence 22 Ruling 97-4(9) requires only a changed circumstance affecting 23 the issue of disability, not necessarily a severe impairment. 24 1997 WL 742758, at *3. 25 Moreover, although the evidence does seem to support the 26 ALJ s finding that Plaintiff is not disabled, the Court cannot 27 conclude that the ALJ s error in giving res judicata effect to 28 the prior ALJ s April 25, 2008 decision was harmless. 11 The ALJ 1 clearly adopted the opinions of Drs. Sedgh, Ligot, and Brooks in 2 assessing Plaintiff s RFC (AR 12, 14-15), but he failed to 3 include or even discuss the environmental limitations opined by 4 Dr. Ligot as a result of Plaintiff s respiratory failure/COPD and 5 status post-cerebral vascular accident. 6 908.) (Compare AR 12 with AR In addition, the VE testimony relied upon by the ALJ in 7 determining that Plaintiff could perform his past relevant work 8 as a salesman was offered at the hearing before the prior ALJ 9 and, thus, did not include the environmental limitations opined 10 by Dr. Ligot. (AR 17.) As a result, there is no VE testimony to 11 support a finding that Plaintiff could perform his past relevant 12 work or any other work if the environmental limitations 13 opined by Dr. Ligot were incorporated into Plaintiff s RFC. 14 Therefore, the Court cannot conclude that the ALJ s disability 15 determination would have been the same had he found that 16 Plaintiff had rebutted the presumption of continuing 17 nondisability and not given res judicata effect to the prior 18 ALJ s decision. 19 In sum, the ALJ s determination that Plaintiff failed to 20 rebut the continuing presumption of nondisability arising from 21 the prior ALJ s decision was not supported by substantial 22 evidence, and Plaintiff is entitled to reversal on that basis. 23 On remand, the ALJ shall reassess whether Plaintiff is disabled 24 without giving res judicata effect to the ALJ s April 25, 2008 25 decision. 26 VII. CONCLUSION 27 When error exists in an administrative determination, the 28 proper course, except in rare circumstances, is to remand to the 12 1 agency for additional investigation or explanation. INS v. 2 Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272 3 (2002) (citations and quotation marks omitted); Moisa v. 4 Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Accordingly, 5 remand, not an award of benefits, is the proper course in this 6 case. See Strauss v. Comm r of Soc. Sec. Admin., 635 F.3d 1135, 7 1136 (9th Cir. 2011) (remand for automatic payment of benefits 8 inappropriate unless evidence unequivocally establishes 9 disability). As noted above, on remand, the ALJ shall reevaluate 10 Plaintiff s claim of disability without giving res judicata 11 effect to the prior ALJ s April 25, 2008 decision. 12 13 ORDER Accordingly, IT IS HEREBY ORDERED that (1) the decision of 14 the Commissioner is REVERSED; (2) Plaintiff s request for remand 15 is GRANTED; and (3) this action is REMANDED for further 16 proceedings consistent with this Memorandum Opinion. 17 IT IS FURTHER ORDERED that the Clerk of the Court serve 18 copies of this Order and the Judgment herein on all parties or 19 their counsel. 20 21 DATED: June 4, 2013 22 ______________________________ JEAN ROSENBLUTH U.S. Magistrate Judge 23 24 25 26 27 28 13
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