Rizo v. Astrue, No. 3:2012cv04520 - Document 20 (N.D. Cal. 2013)
Court Description: ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT'S CROSS MOTION. Signed by Judge Richard Seeborg on 8/6/13. (cl, COURT STAFF) (Filed on 8/6/2013)
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Rizo v. Astrue Doc. 20 1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 SAN FRANCISCO DIVISION 8 9 Plaintiff, For the Northern District of California United States District Court 10 11 No. 3:12-CV-04520 RS MARITZA RIZO, ORDER GRANTING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT AND DENYING DEFENDANT’S CROSS MOTION v. CAROLYN W. COLVIN 12 Commissioner, Social Security Administration, 13 Defendant. 14 ____________________________________/ 15 16 17 18 I. INTRODUCTION Plaintiff Maritza Rizo challenges the Social Security Commissioner’s final decision denying 19 her application for Social Security Disability benefits and seeks reversal of that decision, or 20 alternatively, a remand for further administrative proceedings. In adjudicating Rizo’s application, 21 the Administrative Law Judge (ALJ) improperly excluded evidence from Rizo’s prior disability 22 claim on grounds of res judicata. Because res judicata only precludes a claimant from relitigating 23 the same claim and does not require exclusion of evidence presented in a prior claim, this was legal 24 error. As the error prevented the ALJ from making the requisite comparison between the past and 25 present medical evidence, the decision will be reversed and the case remanded. 26 27 28 NO. 12-CV-04520 RS ORDER 1 Dockets.Justia.com 1 II. FACTS AND PROCEDURAL HISTORY 2 Rizo initially filed an application for Disability Insurance Benefits in 2005, alleging an 3 inability to work because of a severe medical impairment involving her bilateral upper extremities. 4 The Commissioner denied that claim in 2006, finding insubstantial evidence regarding Rizo’s 5 limitations on lifting and carrying, and no indication of any other condition severely impairing her 6 ability to perform normal activities. Rizo filed a second application for Social Security benefits in 7 2010, this time alleging she became disabled in 2003, and that her degenerative joint disease and 8 anxiety disorder prevented her from working. After the Commissioner denied that claim, she sought 9 reconsideration and requested a hearing. The ALJ found Rizo to be not disabled and denied Rizo’s For the Northern District of California United States District Court 10 disability claim. In reaching her decision, the ALJ applied the requisite five-step analysis for 11 determining disability. See 20 CFR § 404.1520(a)(4). In step one, she determined Rizo had not 12 engaged in substantial gainful activity since 2006, the beginning date for which plaintiff alleges a 13 disability. In step two, the ALJ determined Rizo did not have any severe medical impairment 14 between March 8, 2006, and December 31, 2008, and was therefore not disabled. 15 A. Relevant Information from the Administrative Record 16 i. 17 Rizo testified she stopped working in 2002 or 2003 as a result of neck, shoulder, and arm Rizo’s Testimony 18 pain. Since Rizo stopped working, the pain has remained the same. Rizo has difficulty turning her 19 head and performing basic household functions such as doing laundry or managing her checkbook 20 online. She also has difficulty walking more than one hour per day. Rizo further testified she takes 21 medication for her physical pain and depression, but that the medications do not help eliminate the 22 pain completely. Since her Workers’ Compensation benefits lapsed in 2004, Rizo has been treated 23 by Dr. Syverain, who she visits every five to six months. 24 ii. Vocational Expert’s Testimony 25 At Rizo’s hearing, vocational expert Jeffrey Malmuth testified at the ALJ’s request. 26 Malmuth classified Rizzo’s past work as a data entry clerk, which corresponds with Dictionary of 27 28 NO. 12-CV-04520 RS ORDER 2 1 Occupational Title (“DOT”) code 203.582-054. Accordingly, Rizo’s occupation is “semi-skilled”1 2 and “light”2 in its exertional demands. 20 CFR § 404.1568; 20 CFR § 416.967. Malmuth testified 3 Rizo’s specific position requires her to sit for an entire eight-hour day and that an individual who 4 could only sit for six out of eight hours would not be capable of performing her duties. 5 B. The ALJ’s Non-Disability Determination 6 The ALJ found Rizo to be not disabled at any time from March 8, 2006, through December 7 31, 2008, asserting there was no medically determinable impairment. The ALJ, however, excluded 8 treatment records from 2002 through 2005 as purportedly barred by res judicata. Furthermore, she 9 disregarded Dr. Syverain’s medical opinion because of allegedly conflicting medical statements For the Northern District of California United States District Court 10 regarding Rizo’s alleged impairment. The ALJ gave little weight to a medical evaluation conducted 11 by Dr. Davis because it was based upon the excluded evidence and did not report any objective 12 medical abnormalities. The ALJ accepted evaluations from Dr. Gale and Dr. Nguyen, and based her 13 opinion on that evidence. The ALJ also gave significant weight to the opinions of Dr. Nguyen, 14 which she saw as consistent with the record as a whole, and as undermining Rizo’s credibility. III. STANDARD OF REVIEW 15 16 A. Standard for Reviewing the Commissioner’s Decision 17 Section 405(g) of the United States Code, chapter 42, establishes the standard of review of 18 the Social Security Commissioner’s decision to deny benefits. The Commissioner’s finding may be 19 reversed if it is not supported by substantial evidence, or if it is based on legal error. See 20 Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). In this context, substantial evidence is 21 such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id. 22 It requires more than a scintilla, but less than a preponderance of evidence. Id. To determine 23 whether substantial evidence supports the Commissioner’s decision, the Court reviews the 24 administrative record as a whole, considering adverse as well as supporting evidence. Id. The 25 1 26 “A job may be classified as semi-skilled where coordination and dexterity are necessary, as when hands or feet must be moved quickly to do repetitive tasks.” 20 CFR § 404.1568. 2 27 28 Work is classified as light “when it requires a 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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities.” 20 CFR § 416.967. NO. 12-CV-04520 RS ORDER 3 1 ALJ’s findings cannot be disturbed even if there exists other evidence supporting an alternative 2 ruling. See Torske v. Richardson, 484 2d. 59, 60 (9th Cir. 1973). Decisions will not be reversed for 3 harmless errors. See Burch v. Barnhart, 400 F.3d 676, 678 (9th Cir. 2005). 4 B. Standard for Determining Disability 5 A person is “disabled” for purposes of receiving Social Security benefits if he or she is 6 unable to engage in a substantially gainful activity due to a physical or mental impairment that has 7 lasted for a continuous period of not less than twelve months. 42 U.S.C. § 423(d)(1)(A). Social 8 Security disability cases are evaluated under a five-step test. 20 C.F.R. §§ 404.1520(a)(4), 9 416.920(a)(4). The claimant carries the initial burden of proving disability. 42 U.S.C. § 423(d)(5); For the Northern District of California United States District Court 10 Swenson v. Sullivan, 876 F.2d 683, 687 (9th Cir.1989). In the first step, the ALJ must determine 11 whether the claimant is currently engaged in substantial gainful activity. Substantial work is work 12 that involves doing significant physical or mental activities. 20 C.F.R. §§404.1572(a), 416.972(a). 13 Gainful activity is work that is usually done for pay or profit, regardless of whether a profit results. 14 20 C.F.R. §§ 404.1572(b), 416.972(b). 15 If the claimant is not so engaged, the second step requires the ALJ to determine if the 16 claimant has a “severe” impairment which significantly limits the claimant’s ability to perform basic 17 work activities. 20 C.F.R. § 416.920(a)(4)(ii). If the ALJ concludes the claimant does not have a 18 “severe” impairment, the claimant is not “disabled” and the claim is denied without need to evaluate 19 the remaining steps. Id. 20 IV. ANALYSIS 21 A. The ALJ Erroneously Applied Res Judicata 22 As noted, the ALJ excluded evidence from Rizo’s prior disability claim on grounds it was 23 barred by res judicata. The ALJ reasoned that because res judicata precluded Rizo’s disability claim 24 prior to March 8, 2006, the evidence used in her prior claim should also be precluded. Res judicata, 25 however, applies to final decisions in administrative proceedings where the claimant has failed to 26 seek administrative review after notice of an adverse decision. Taylor v. Heckler, 765 F.2d 872, 876 27 (9th Cir. 1985); see 20 C.F.R. § 404.957(c)(1). Hence, res judicata does not extend to the evidence 28 relied upon in those decisions. More specifically, when a claimant is denied social security benefits, NO. 12-CV-04520 RS ORDER 4 1 res judicata “precludes the claimant from arguing that he was disabled during the period covered by 2 decision.” Valencia v. Astrue, 1:11-CV-01970-JLT, 2012 WL 6628899 (E.D. Cal. Dec. 19, 2012) 3 (emphasis added). Although the Ninth Circuit has consistently held a denial of social security 4 benefits from a previous decision creates a presumption of continuing non-disability, that 5 presumption may be overcome by proving changed circumstances indicating a greater disability. 6 See Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1995); see also Miller v. Heckler, 770 F.2d 845, 847 7 (9th Cir. 1985). In this case, while res judicata would preclude a disability claim for the period 8 before March 8, 2006, the prior decision only creates a presumption of non-disability thereafter. See 9 Lester, 81 F.3d at 827. The evidence from Rizo’s prior claim, therefore, should not have been For the Northern District of California United States District Court 10 precluded, and the ALJ’s unwarranted extension of res judicata constituted a legal error. See id. (res 11 judicata inapplicable “where the claimant raises a new issue, such as the existence of an impairment 12 not considered in the previous application”). 13 Furthermore, the exclusion of prior evidence that might have proven changed circumstances 14 undermines the decision. Before denying a disability claim, an ALJ must thoroughly examine “all 15 the new medical evidence presented by plaintiff in comparison with the evidence considered in the 16 prior decision.” Burns v. Astrue, CV 08-1112-PLA, 2009 WL 950773 (C.D. Cal. Apr. 7, 2009). 17 Rizo’s prior claim for benefits was denied because of a lack of objective medical evidence 18 indicating a severe medical impairment. Rizo now alleges she is disabled and unable to work 19 because of a degenerative joint disease and anxiety disorder. The present evidence should have 20 been considered in conjunction with the prior evidence to evaluate whether or not Rizo overcame 21 the presumption of non-disability by demonstrating changed circumstances. 22 B. The Legal Error is not Harmless 23 The Social Security Administration argues that even if the ALJ improperly applied res 24 judicata, her decision should not be reversed because she committed a harmless error. An ALJ’s 25 error is harmless if it is clear from the record that the “error was inconsequential to the ultimate non- 26 disability determination.” Robbins v. Social Security Administration, 466 F.3d 880, 885 (9th Cir. 27 2006) (quoting Stout v. Comm’r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)). The reviewing court 28 must confidently conclude that a different disability determination would not have been made. Id. NO. 12-CV-04520 RS ORDER 5 1 Here, the ALJ declined to analyze the medical evidence from the time period prior to March of 2 2006. Additionally, the ALJ rejected Dr. Davis’s opinion, at least in part, because it was based upon 3 the excluded medical evidence. On this record, the Court cannot confidently conclude that the result 4 would have been the same had all of the relevant medical evidence been taken into account. 5 C. Remand to Assess the Excluded Medical Evidence is Warranted 6 Rizo seeks a ruling that she is entitled to disability benefits, or alternatively, a remand for 7 further proceedings. Whether or not to remand Rizo’s case for further proceedings is within the 8 district court’s discretion. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1988). Where there 9 are outstanding factual issues that must be resolved and it is unclear from the record whether the For the Northern District of California United States District Court 10 ALJ could find the claimant to be disabled, remand is appropriate. Id. In this case, the ALJ 11 excluded evidence necessary to overcome the presumption of non-disability. Allowing further 12 proceedings will permit the ALJ to evaluate Rizo’s entire medical record and make a proper 13 determination. Whether or not Rizo will ultimately prove the changed circumstances warrant a 14 favorable outcome, the question should be addressed by the ALJ in the first instance. 15 V. CONCLUSION 16 Plaintiff’s Motion for Summary Judgment is GRANTED, and defendant’s Motion for 17 Summary Judgment is DENIED. The ALJ’s decision is reversed and this case is remanded for 18 further proceedings consistent with this order. 19 20 21 IT IS SO ORDERED. 22 23 24 Dated: 8/6/13 RICHARD SEEBORG UNITED STATES DISTRICT JUDGE 25 26 27 28 NO. 12-CV-04520 RS ORDER 6
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