Carroll v. Commissioner of Social Security

• Court: District Court, W.D. Washington
• Decided: July 13, 2023
• Docket: 3:22-cv-05603
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 5 AT TACOMA/ SEATTLE 6 CHRISTINA C., Case No. 3:22-cv-05603-TLF 7 Plaintiff, v. ORDER AFFIRMING IN PART AND 8 REVERSING AND REMANDING IN ACTING COMMISSIONER OF SOCIAL PART, DEFENDANT’S DECISION 9 SECURITY, TO DENY BENEFITS 10 Defendant. 11 … 12 Plaintiff has brought this matter for judicial review of defendant’s denial of her 13 applications for supplemental security income (SSI) benefits. 14 The parties have consented to have this matter heard by the undersigned 15 Magistrate Judge. 28 U.S.C. § 636(c); Federal Rule of Civil Procedure 73; Local Rule 16 MJR 13. 17 ISSUES FOR REVIEW 18 1. Whether the ALJ erred in not re-opening two prior applications 19 2. Whether the Court should apply res judicata to plaintiff’s 2012 and 2018 20 applications for benefits 21 BACKGROUND 22 Plaintiff applied for Title II disability benefits and Title XVI supplemental security 23 income in August 2019 alleging a disability onset date of August 1, 2011. AR 279-87. 24 1 Plaintiff previously applied for Title II and Title XVI benefits in 2012 and 2018 but was 2 denied each time. AR 16. 3 In the current case, plaintiff’s claim was denied initially and upon reconsideration. 4 The Administrative Law Judge (“ALJ”) conducted a hearing on July 26, 2021, and on

5 August 25, 2021, the ALJ issued a partially favorable decision, finding that plaintiff was 6 not disabled through December 31, 2016, but has been disabled beginning August 7, 7 2019. AR 37. 8 Plaintiff requested that the ALJ reopen her earlier applications but the ALJ denied 9 the request. AR 16-17. Specifically, the ALJ denied the request to reopen the 2012 10 application, finding that plaintiff “clearly demonstrated that she understands the 11 necessity of filing timely appeals, and how to file them, even without the assistance of a 12 representative.” Id. The ALJ additionally denied the request to reopen the 2018 13 application because he did not find the presence of “new and material evidence that 14 would justify a decision to reopen and revise the prior determination.” AR 17.

15 The ALJ therefore determined that res judicata applied to the Title II portion of 16 plaintiff’s claim through December 31, 2016, the date of last insured. Id. The ALJ then 17 dismissed plaintiff’s Title II claims because she was not insured when she filed her 18 current application on August 7, 2019. Id. Regarding plaintiff’s Title XVI application, the 19 ALJ determined that plaintiff was disabled due to left De Quervain’s tenosynovitis, radial 20 styloid tenosynovitis and lateral epicondylitis, gout, level 2 obesity, adjustment disorder 21 with mixed mood and anxiety, major depressive disorder, bipolar affective disorder, 22 generalized anxiety disorder, agoraphobia with panic, borderline personality disorder, 23 and methamphetamine use. AR 20.

24 1 STANDARD 2 Pursuant to 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s 3 denial of Social Security benefits if the ALJ’s findings are based on legal error or not 4 supported by substantial evidence in the record as a whole. Revels v. Berryhill, 874

5 F.3d 648, 654 (9th Cir. 2017). Substantial evidence is “such relevant evidence as a 6 reasonable mind might accept as adequate to support a conclusion.” Biestek v. 7 Berryhill, 139 S. Ct. 1148, 1154 (2019) (internal citations omitted). 8 DISCUSSION 9 1. Whether the ALJ erred in not reopening plaintiff’s 2012 decision 10 Plaintiff contends that the ALJ erred in determining that plaintiff “clearly 11 demonstrated that she understands the necessity of filing timely appeals, and how to file 12 them, even without the assistance of a representative” because this finding is not 13 supported by substantial evidence; conversely, plaintiff argues that the record reflects 14 that plaintiff has been in a deep depression since 2011, resulting in a period of

15 homelessness from 2011-2016. Dkt. 10 at 3 (citing AR 16). The commissioner responds 16 that plaintiff failed to show that her due process rights were violated when the ALJ 17 refused to reopen her 2012 claim and thus the ALJ’s decision is not subject to judicial 18 review. Dkt. 11 at 3 19 Once an administrative decision becomes final, the Commissioner’s decision to 20 reopen a disability claim is “purely discretionary.” Taylor v. Heckler, 765 F.2d 872, 877 21 (9th Cir. 1985). Because a discretionary decision is not a “final decision” within the 22 meaning of 42 U.S.C. § 405(g), the Commissioner’s refusal to reopen a decision “is not 23 a ‘final’ decision subject to judicial review.” Id. (citations omitted); Lester v. Chater, 81

24 1 F.3d 821, 827 (9th Cir. 1995) (“As a general matter, the Commissioner’s refusal to 2 reopen her decision as to an earlier period is not subject to judicial review.”). The Court 3 can review a decision to not reopen a prior application if the “denial of a petition to 4 reopen is challenged on constitutional grounds.” Califano v. Sanders, 430 U.S. 99, 109

5 (1977). A plaintiff sufficiently alleges a colorable constitutional claim when they allege 6 that a denial was based on a mental impairment and they were unrepresented at the 7 time of the denial of benefits. Udd v. Massanari, 245 F.3d 1096, 1099 (9th Cir. 2001), as 8 amended on denial of reh'g (May 3, 2001) (citing Evans v. Chater, 110 F.3d 1480, 1483 9 (9th Cir. 1997)). 10 Plaintiff argues that the decision to not reopen the 2012 decision is a violation of 11 her due process rights because her mental impairments were so severe that they 12 effectively prevented her from following up on her disability claims. Dkt. 10 at 3-4. 13 Therefore, plaintiff has raised a colorable constitutional issue and the court has 14 jurisdiction to consider whether the ALJ appropriately decided not to reopen the 2012

15 decision. Under Social Security Ruling (SSR) 91-5p the SSA will consider the following 16 four factors in determining whether good cause exists for extending the time for review: 17 (1) inability to read or write, (2) lack of facility with the English language, (3) limited 18 education, and (4) any mental or physical condition which limits the claimant’s ability to 19 do things for themselves. SSR 91-5; Udd, 245 F.3d at 1099. Any reasonable doubt is to 20 be resolved in favor of the claimant. Id. If these factors are met, the time limits for 21 requesting review are tolled and the ALJ must “take the action which would have been 22 appropriate had the claimant filed a timely request for review.” Udd, 245 F.3d at 1099- 23 1100 (citing SSR 91-5p).

24 1 In this case, the ALJ cited as support for his determination not to reopen the 2 2012 decision the fact that plaintiff requested a postponement of her hearing in her 3 2012 claim, filed an appeal of that claim after it was dismissed for her failure to attend a 4 hearing, and she can and does attend mental health appointments. AR 16-17; See AR

5 95. The ALJ stated that these instances demonstrate that plaintiff understood the 6 information in the Notice of Hearing and notice of appeal, and that she could attend 7 hearings despite any mental health limitations. Id. 8 Plaintiff argues that plaintiff missed her hearing in 2016 due to her homelessness 9 and severe mental illness. Dkt. 10 at 3. During the current hearing, plaintiff testified that 10 she was unable to attend her prior hearings because of her housing instability at the 11 time. AR 61. Specifically, plaintiff testified that she was couch-surfing or living in her car 12 (which had broken down) intermittently and was unable to communicate with anyone. 13 Id. She testified that during this period she spent most of her time sleeping in her car on 14 a dead-end street where she would be undisturbed and going to the mission to eat

15 meals or find food. Id. She further testified that she suffered from extreme depression 16 and anxiety during this time that made it difficult for her to leave her car. AR 61-63. 17 The medical record during this time period also reflects the challenges that 18 plaintiff was facing. For example, on May 14, 2012, plaintiff presented to the Swedish 19 Hospital Issaquah Emergency Department for anxiety and reported that life had been 20 very difficult recently, she was living in her car, having family troubles, and had 21 attempted to commit suicide the August prior. AR 1376. 22 In making his determination not to reopen plaintiff’s 2012 decision, the ALJ 23 considered the fact the plaintiff had demonstrated that she understood the Notice of

24 1 Hearing and notice of appeal by following the procedure outlined in these notices to file 2 a postponement and an appeal. AR 17. The ALJ also reasonably considered plaintiff’s 3 ability to attend other scheduled appointments during the time at issue in concluding 4 that she could attend hearings despite her mental health limitations. Id. However, the

5 ALJ failed to take into account the waxing and waning nature of mental health 6 symptoms. See Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (claimants who 7 suffer from mental conditions may have symptoms that wax and wane, with downward 8 cycles, cycles of improvement, and mixed results from treatment). The ALJ’s decision 9 considers the steps that plaintiff was able to take, but it does not appear that any 10 reasonable doubt regarding plaintiff’s ability to do things for herself was resolved in 11 favor of plaintiff. Accordingly, on remand, the ALJ is instructed to consider the impact of 12 plaintiff’s mental health symptoms on her ability to do things for herself at the time of her 13 missed hearings in accordance with SSR 91-5p in considering whether to reopen the 14 2012 decision.

15 2. Whether the ALJ erred in not reopening plaintiff’s 2018 application 16 Plaintiff additionally argues that in the case of her 2018 application, the ALJ failed 17 to adequately address plaintiff’s contention that she had good cause for reopening her 18 2018 claim. Dkt. 10 at 4. The commissioner responds that the Court lacks jurisdiction to 19 review the decision to not reopen the 2018 decision because plaintiff forfeited the issue 20 by not presenting any colorable constitutional claim. Dkt. 11 at 3. Plaintiff argues that 21 she did raise a colorable due process claim, citing Dexter v. Colvin where the Ninth 22 Circuit stated: “if a claimant provides a facially legitimate reason that constitutes ‘good 23 cause’ under the Commissioner’s regulations, see 20 C.F.R. § 404.911(b), then due

24 1 process requires that the ALJ address it.” Dkt. 10 at 5 (citing Dexter v. Colvin, 731 F.3d 2 977, 981-82 (9th Cir. 2013)). 3 However, plaintiff’s claim is different from Dexter. First, Dexter concerned a 4 different regulation; in Dexter the Court addressed 20 C.F.R. § 404.911(b) which relates

5 to “good cause for missing the deadline to request review”; in this case the ALJ’s 6 decision was pursuant to 20 C.F.R. § 404.988, which deals with “conditions for 7 reopening.” See Dexter, 731 F.3d at 981-82. 8 Second, the court in Dexter determined that the plaintiff raised a colorable due 9 process issue because she alleged that her request for a hearing was late for three 10 reasons: (1) her own illness, (2) a death of an immediate family member, both of which 11 are listed as “[e]xamples of circumstances where good cause may exist” under 20 12 C.F.R. § 404.911(b) , and (3) that she didn’t realize that there was a time period for 13 filing; the ALJ only considered the third reason, despite the fact that the other two 14 reasons are explicit examples of good cause in the regulations. Id. at 980 (citing 20

15 C.F.R. § 404.911(b)) (internal quotations omitted). In contrast 20 C.F.R. § 404.998 16 contains no definition for “new and material evidence.” Therefore, plaintiff’s reliance on 17 Dexter to demonstrate that she has raised a colorable due process issue is unavailing. 18 Furthermore, plaintiff was not denied a meaningful opportunity to be heard in this 19 case. The ALJ indicated that he considered the evidence presented and determined 20 that it was not new and material evidence that would justify reopening a prior decision. 21 AR 17. This is also distinct from Dexter, where the ALJ did not acknowledge the 22 plaintiff’s proffered reasons in determining whether the plaintiff had good cause for 23 submitting a late request for a hearing. Dexter 731 F.3d at 980. The ALJ in this case

24 1 exercised his discretion in concluding that plaintiff’s application did not meet the criteria 2 for reopening the 2018 decision under 20 C.F.R. § 404.988. Id. For these reasons, 3 plaintiff has failed to raise a colorable constitutional claim and this Court lacks 4 jurisdiction to review the ALJ’s decision not to reopen the 2018 decision.

5 3. Whether the ALJ erred in applying res judicata to plaintiff’s prior determinations 6 The ALJ determined “claimant’s present application does not meet the criteria to 7 reopen the prior decisions. (20 C.F.R. §§ 404.988 and 416.1488). Therefore, res 8 judicata applies to the Title II portion of the claim though the date of last insured, 9 December 31, 2016 (20 C.F.R. §§ 404.957 and 416.1457). AR 17. 10 Plaintiff argues the ALJ misapplied the doctrine of res judicata because the 11 previous determination was not made on the same facts and on the same issue or 12 issues and plaintiff was unrepresented at the time of the prior claim. Dkt. 10 at 5-6. 13 Defendant contends that plaintiff’s argument is groundless because Lester, which 14 plaintiff relies on, relates only to the period subsequent to a prior determination, and

15 plaintiff challenges the Title II portion of her claim only through the date last insured. 16 Dkt. 11 at 8; Lester v. Chater, 81 F.3d 821, 827 (9th Cir. 1996). Because the Court has 17 already determined that remand is appropriate to determine whether the 2012 decision 18 should have been reopened, the Court will only address whether the ALJ erred in 19 applying res judicata to the 2018 decision. 20 The Court in Lester stated the Commissioner is allowed to “apply res judicata to 21 bar reconsideration of a period with respect to which she has already made a 22 determination, by declining to reopen the prior application.” Lester, 81 F.3d at 827. The 23 Ninth Circuit has held that when a plaintiff is unrepresented by counsel in the prior

24 1 applications, “the rigid application of res judicata would be undesirable.” Gregory v. 2 Bowen, 844 F.2d 664, 666 (9th Cir. 1988). However, in Gregory, the plaintiff was not 3 only unrepresented, but (1) her new application presented new facts to demonstrate 4 that the prior determination may have been incorrect, and (2) the ALJ considered on the

5 merits the issue of the plaintiff’s disability during the time covered by the prior claim. Id. 6 The Ninth Circuit has also determined res judicata to be inappropriate where the plaintiff 7 was unrepresented by counsel and the record was “patently inadequate to support the 8 findings the ALJ made.” Thompson v. Schweiker, 665 F.2d 983, 941 (9th Cir. 1982). In 9 this case plaintiff was unrepresented, however, she has not shown that the prior record 10 was inadequate or presented any new evidence that suggests that the prior decision 11 was incorrect. Additionally, plaintiff has not alleged that the ALJ constructively reopened 12 the 2018 decision by considering that period on the merits. Accordingly, this Court lacks 13 jurisdiction to review the decision to apply res judicata to the 2018 decision. 14 CONCLUSION

15 Based on the foregoing discussion, the Court reverses and remands the ALJ’s 16 decision to not reopen the plaintiff’s 2012 application; the Court concludes the ALJ 17 improperly exercised his discretion in not reopening plaintiff’s 2012 decision. The Court 18 affirms the ALJ’s decision to not reopen plaintiff’s 2018 decision; that decision is not 19 subject to judicial review. 20 21 Dated this 13th day of July, 2023. A 22 Theresa L. Fricke 23 United States Magistrate Judge 24