Caldwell v. Colvin, No. 2:2014cv00245 - Document 18 (E.D. Wash. 2015)

Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT ECF No. 16 and denying ECF No. 14 Plaintiff's Motion for Summary Judgment. FILE CLOSED. Signed by Magistrate Judge John T. Rodgers. (TR, Intake Clerk)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 EASTERN DISTRICT OF WASHINGTON 6 7 DAMAN THOMAS CALDWELL, 8 Plaintiff, ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT 9 10 No. 2:14-CV-0245-JTR v. 11 CAROLYN W. COLVIN, 12 Commissioner of Social Security, 13 Defendant. 14 15 BEFORE THE COURT are cross-Motions for Summary Judgment. ECF 16 Nos. 14, 16. Attorney Dana C. Madsen represents Daman Thomas Caldwell 17 (Plaintiff); Special Assistant United States Attorney Alexis L. Toma represents the 18 Commissioner of Social Security (Defendant). The parties have consented to 19 proceed before a magistrate judge. ECF No. 7. After reviewing the administrative 20 record and the briefs filed by the parties, the Court GRANTS Defendant’s Motion 21 for Summary Judgment and DENIES Plaintiff’s Motion for Summary Judgment. 22 JURISDICTION 23 Plaintiff filed applications for Disability Insurance Benefits (DIB) and 24 Supplemental Security Income (SSI) on February 19, 2012, alleging disability 25 beginning August 31, 2008. Tr. 213-19. The applications were denied initially 26 and upon reconsideration. Tr. 118-20, 121-124, 131-35, 136-42. Administrative 27 Law Judge (ALJ) Moira Austems held a hearing on November 6, 2013, at which 28 Plaintiff, represented by counsel, testified as did Jennifer Caldwell and medical ORDER GRANTING DEFENDANT’S MOTION . . . - 1 1 expert Donna Veraldi, Ph.D. Tr. 26-56. After the hearing, the ALJ requested 2 Plaintiff undergo an additional psychological evaluation, which was conducted by 3 Jeanette Higgins, Psy.D. on November 26, 2013. Tr. 198-99, 573-82. 4 On March 10, 2014, the ALJ issued a partially favorable decision finding 5 Plaintiff’s impairments met the listings beginning February 19, 2012, through the 6 date of the decision. Tr. 8-25. The Appeals Council denied review. Tr. 1-4. The 7 ALJ’s decision became the final decision of the Commissioner, which is 8 appealable to the district court pursuant to 42 U.S.C. § 405(g). Plaintiff filed this 9 action for judicial review on July 29, 2014. ECF No. 1, 4. Plaintiff argues that the 10 ALJ erred by determining that Plaintiff’s disability onset date was February 19, 11 2012, (the application date) instead of August 31, 2008, (Plaintiff’s alleged onset 12 date). This determination effectively precludes Plaintiff from recovering DIB 13 because Plaintiff’s insured status expired on September 30, 2010. Tr. 16. 14 STATEMENT OF FACTS 15 The facts of the case are set forth in the administrative hearing transcript, the 16 ALJ’s decision, and the briefs of the parties. They are only briefly summarized 17 here. 18 Plaintiff was 38 years old at the time of the hearing. Tr. 45. Plaintiff did not 19 graduate from high school but does have a GED. Tr. 45-46. Plaintiff has worked 20 many different jobs, but none usually lasted longer than a month or two. Tr. 31. 21 Plaintiff testified that he cannot work because he “just can’t cope with society . . . 22 [or] deal with people . . . [or] deal with things that maybe other people can deal 23 with.” Tr. 32. 24 25 STANDARD OF REVIEW The ALJ is responsible for determining credibility, resolving conflicts in 26 medical testimony, and resolving ambiguities. Andrews v. Shalala, 53 F.3d 1035, 27 1039 (9th Cir. 1995). The Court reviews the ALJ’s determinations of law de novo, 28 deferring to a reasonable interpretation of the statutes. McNatt v. Apfel, 201 F.3d ORDER GRANTING DEFENDANT’S MOTION . . . - 2 1 1084, 1087 (9th Cir. 2000). The decision of the ALJ may be reversed only if it is 2 not supported by substantial evidence or if it is based on legal error. Tackett v. 3 Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is defined as 4 being more than a mere scintilla, but less than a preponderance. Id. at 1098. Put 5 another way, substantial evidence is such relevant evidence as a reasonable mind 6 might accept as adequate to support a conclusion. Richardson v. Perales, 402 7 U.S. 389, 401 (1971). If the evidence is susceptible to more than one rational 8 interpretation, the court may not substitute its judgment for that of the ALJ. 9 Tackett, 180 F.3d at 1097; Morgan v. Comm’r of Soc. Sec. Admin., 169 F.3d 595, 10 599 (9th Cir. 1999). Nevertheless, a decision supported by substantial evidence 11 will still be set aside if the proper legal standards were not applied in weighing the 12 evidence and making the decision. Brawner v. Secretary of Health and Human 13 Services, 839 F.2d 432, 433 (9th Cir. 1988). If substantial evidence supports the 14 administrative findings, or if conflicting evidence supports a finding of either 15 disability or non-disability, the ALJ’s determination is conclusive. Sprague v. 16 Bowen, 812 F.2d 1226, 1229-1230 (9th Cir. 1987). 17 18 SEQUENTIAL EVALUATION PROCESS The Commissioner has established a five-step sequential evaluation process 19 for determining whether a person is disabled. 20 C.F.R. §§ 404.1520(a), 20 416.920(a); see Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). In steps one 21 through four, the burden of proof rests upon claimants to establish a prima facie 22 case of entitlement to disability benefits. Tackett, 180 F.3d at 1098-1099. This 23 burden is met once claimants establish that physical or mental impairments prevent 24 them from engaging in their previous occupations. 20 C.F.R. §§ 404.1520(a)(4), 25 416.920(a)(4). If claimants cannot do their past relevant work, the ALJ proceeds 26 to step five, and the burden shifts to the Commissioner to show that (1) the 27 claimants can make an adjustment to other work, and (2) specific jobs exist in the 28 national economy which claimants can perform. Batson v. Comm’r of Soc. Sec., ORDER GRANTING DEFENDANT’S MOTION . . . - 3 1 359 F.3d 1190, 1193-1194 (2004). If claimants cannot make an adjustment to 2 other work in the national economy, a finding of “disabled” is made. 20 C.F.R. §§ 3 404.1520(a)(i-v), 416.920(a)(4)(i-v). 4 5 ADMINISTRATIVE DECISION On March 10, 2014, the ALJ issued a decision finding Plaintiff was disabled 6 as defined in the Social Security Act from February 19, 2012, through the date of 7 the ALJ’s decision. Tr. 19. 8 9 The ALJ first addressed the onset date of Plaintiff’s disability. Tr. 12-13. As set forth by the ALJ, Plaintiff filed two previous applications for DIB.1 10 Plaintiff filed his first application on May 24, 2010, which was denied initially on 11 September 9, 2010, and on reconsideration December 1, 2010. Tr. 57-58, 108-13. 12 Plaintiff did not further pursue that application. He filed a second application for 13 DIB on August 11, 2011, Tr. 211-12, which was denied on September 29, 2011, 14 based on the doctrine of res judicata. Tr. 59, 114-17. Again, he did not pursue his 15 second application beyond the reconsideration level. 16 For purposes of Plaintiff’s application that is the subject of this appeal, the 17 ALJ determined that Plaintiff did not submit any new and material evidence 18 establishing clear error that constituted good cause to reopen the December 1, 19 2010, determination. Tr. 12. The ALJ determined that the December 1, 2010, 20 determination was the final and binding determination of the Commissioner and 21 that the principle of res judicata (already adjudicated) applied to preclude Plaintiff 22 from recovering DIB earlier than December 2, 2010. Tr. 13. 23 24 At step one, the ALJ found Plaintiff had not engaged in substantial gainful activity since February 19, 2012, the application date. Tr. 15. 25 26 27 28 1 Plaintiff also filed two previous SSI applications, which were denied because of excess income and resources. Tr. 13. ORDER GRANTING DEFENDANT’S MOTION . . . - 4 1 At step two, the ALJ determined that beginning February 19, 2012, Plaintiff 2 has had the following severe impairments: schizoaffective disorder, bipolar type; 3 generalized anxiety disorder; narcissistic personality disorder; and cannabis 4 dependence. Tr. 15. 5 6 At step three, the ALJ found that, since February 19, 2012, the severity of Plaintiff’s impairments met Listing 12.04. Tr. 15. 7 The ALJ further concluded that Plaintiff was not disabled prior to February 8 19, 2012, and that his substance use disorder was not a contributing factor material 9 to disability. Tr. 18. The ALJ found Plaintiff eligible for SSI, but dismissed 10 Plaintiff’s DIB application as Plaintiff’s insured status ended on September 30, 11 2010. Tr. 19. ISSUE 12 The question presented is whether the Court has jurisdiction to review the 13 14 ALJ’s decision to not reopen Plaintiff’s prior DIB application. DISCUSSION 15 16 Defendant argues that the Court does not have subject-matter jurisdiction to 17 review the ALJ’s decision not to reopen Plaintiff’s prior application. ECF No. 16 18 at 4-5. 19 A federal court has jurisdiction over a Social Security appeal after the 20 Commissioner renders a final decision. 42 U.S.C. § 405(g). Section 405(g) 21 “clearly limits judicial review to a particular type of agency action, a final decision 22 of the Secretary made after a hearing.” Subia v. Comm’r of Soc. Sec., 264 F.3d 23 899, 902 (9th Cir. 2001) (quoting Califano v. Sanders, 430 U.S. 99, 108 (1977)). 24 “‘[T]he Secretary's decision not to re-open a previously adjudicated claim for 25 social security benefits’ is purely discretionary and is therefore not considered a 26 ‘final’ decision within the meaning of § 405(g).” Krumpelman v. Heckler, 767 27 F.2d 586, 588 (9th Cir. 1985) (quoting Davis v. Schweiker, 665 F.2d 934, 935 (9th 28 Cir. 1982)); see also 20 C.F.R. § 404.903(l). “District courts, therefore, have no ORDER GRANTING DEFENDANT’S MOTION . . . - 5 1 jurisdiction to review a refusal to re-open a claim for disability benefits or a 2 determination that such a claim is res judicata.” Krumpelman, 767 F.2d at 588 3 (citing Davis, 665 F.2d at 935); see also Lester v. Chater, 81 F.3d 821, 827 (9th 4 Cir. 1995) (“the Commissioner’s refusal to reopen her decision as to an earlier 5 period is not subject to judicial review.”). 6 In this case, as an initial matter, Plaintiff did not exhaust his administrative 7 remedies with respect to the earlier applications at issue, so that no final decision 8 entered.2 Furthermore, an ALJ’s decision to grant or deny a claimant’s request to 9 reopen prior applications is discretionary, and in this case, the ALJ concluded that 10 good cause did not exist to reopen Plaintiff’s December 2010 determination. Tr. 11 12. The denial of a request to reopen is not a final decision of the Commissioner 12 made after a hearing and, thus, is not subject to judicial review. Krumpelman, 767 13 F.2d at 588; Lester, 81 F.3d at 827. Because the Court concludes that it lacks 14 subject-matter jurisdiction, it will not address the merits of Plaintiff’s arguments. 15 In his reply, Plaintiff cites to Lester v. Chater arguing that “the principle of 16 res judicata should not be rigidly applied in administrative proceedings.” ECF No. 17 17 at 2 (citing Lester, 81 F.3d at 827-28). 18 But Lester is distinguishable from the case at bar. In Lester, the question 19 before the Court was whether res judicata barred the claimant’s disability claim for 20 a period subsequent to a prior determination. 81 F.3d at 827. In that case, the ALJ 21 2 The principal of exhaustion is an important one as exhaustion 22 23 24 25 26 [I]s generally required as a matter of preventing premature interference with agency processes, so that the agency may function efficiently and so that it may have an opportunity to correct its own errors, to afford the parties and the courts the benefit of its experience and expertise, and to compile a record which is adequate for judicial review. 27 28 Weinberger v. Salfi, 422 U.S. 749, 765 (1975) (citation omitted). ORDER GRANTING DEFENDANT’S MOTION . . . - 6 1 denied the claimant’s application in 1985. Id. The claimant filed another 2 application in 1988, which the ALJ also denied based, at least in part, on res 3 judicata. Id. The claimant did not challenge the Commissioner’s application of res 4 judicata prior to 1985, but argued that the Commissioner should not be allowed to 5 rely on res judicata to bar consideration of the evidence of his impairments after 6 1985. Id. The Ninth Circuit agreed and listed several situations where the 7 Commissioner should not “rigidly appl[y]” the doctrine of res judicata, including 8 when, subsequent to a prior determination, the severity of the claimant’s 9 impairments increase or the claimant “raises a new issue, such as the existence of 10 an impairment not considered in the previous application.” Id. In Lester, the Court 11 concluded that the Commissioner erred in using res judicata to avoid consideration 12 of Plaintiff’s impairment subsequent to 1985 because Plaintiff had alleged different 13 impairments and changed circumstances in his 1988 application. Id. at 828. 14 In this case, Plaintiff argues that the ALJ erred in relying upon res judicata 15 as grounds to not reopen his 2010 determination. In Lester, the Ninth Circuit 16 reiterated the general rule that “[t]he Commissioner may . . . apply res judicata to 17 bar reconsideration of a period with respect to which she has already made a 18 determination, by declining to reopen the prior application.” Id. at 827. This is the 19 rule that applies in Plaintiff’s situation. Plaintiff does not argue that the ALJ erred 20 in using res judicata to bar consideration of his impairments after the 2010 21 determination. The situations listed in Lester where res judicata should not be 22 rigidly applied do not apply to Plaintiff’s case. Plaintiff’s reliance on Lester to 23 argue that res judicata should not be rigidly applied to bar reopening of his 2010 24 determination is misplaced and his argument fails. 25 CONCLUSION 26 Having reviewed the record and the ALJ’s findings, the Court determines 27 that it does not have subject matter jurisdiction over the issue raised by Plaintiff. 28 Accordingly, IT IS ORDERED: ORDER GRANTING DEFENDANT’S MOTION . . . - 7 1 2 1. Defendant’s Motion for Summary Judgment, ECF No. 16, is GRANTED. Plaintiff’s Motion for Summary Judgment, ECF No. 14, is DENIED. 3 2. 4 The District Court Executive is directed to file this Order and provide a copy 5 to counsel for Plaintiff and Defendant. Judgment shall be entered for Defendant 6 and the file shall be CLOSED. 7 DATED May 28, 2015. 8 9 10 _____________________________________ JOHN T. RODGERS UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION . . . - 8

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