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5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 LYNNE E. S.-M., 9 Plaintiff, Case No. C23-5765-MLP 10 v. ORDER 11 COMMISSIONER OF SOCIAL SECURITY, 12 Defendant. 13 I. INTRODUCTION 14 Plaintiff seeks review of the denial of her October 2016 and June 2019 applications for 15 Supplemental Security Income (“SSI”). Plaintiff contends the administrative law judge (“ALJ”) 16 erred in failing to reopen and adjudicate a prior March 2016 SSI application in conjunction with 17 her October 2016 and June 2019 applications. (Dkt. #18 at 1 & n.1; dkt. # 27 at 2 n.1; dkt. # 32 at 18 2-3.) Additionally, Plaintiff argues that the ALJ erred in evaluating the medical opinion 19 evidence, her testimony, and the lay witness testimony, in assessing her residual functional 20 capacity (“RFC”), and in finding that she was capable of her past relevant work. (Dkt. # 18 at 1.) 21 22 23 1 As discussed below, the Court REVERSES the Commissioner’s final decision and REMANDS 2 the matter for further administrative proceedings under sentence four of 42 U.S.C. § 405(g). 1 3 II. BACKGROUND 4 Plaintiff was born in 1963, has a high school education, and worked most recently as a
5 sales route driver. AR at 200, 2275. Plaintiff has not been gainfully employed since the October 6 13, 2016 date of her second SSI application.2 Id. at 2246. 7 This case has a lengthy history. Plaintiff first filed for disability insurance (“DIB”) and 8 SSI benefits on March 2, 2016 (“first application”), alleging a February 29, 2012 onset date. See 9 AR at 200-06. Plaintiff’s applications were denied initially at the administrative level on June 30, 10 2016. Id. at 3746-70. It is unclear from the record whether Plaintiff requested reconsideration 11 and/or a hearing following initial review of the applications.3 In February 2017, Plaintiff 12 requested reopening of the March 2016 application.4 Id. at 275. 13 Plaintiff subsequently applied for SSI benefits on October 13, 2016 (“second 14 application”), alleging disability beginning February 19, 2012. AR at 209-14. Plaintiff’s
15 application was denied initially and on reconsideration, and Plaintiff requested a hearing. Id. at 16
17 1 The parties consented to proceed before the undersigned Magistrate Judge. (Dkt. # 5.)
18 2 The October 13, 2016 date used by the ALJ was simply the date that Plaintiff filed her second SSI application. However, the record shows that Plaintiff’s last gainful employment dated back to 2012 or 19 before – prior to an injury she suffered on the job in 2012. AR at 49-51, 2626, 2752.
20 3 The only decision records regarding Plaintiff’s March 2016 applications are those that the Commissioner submitted after this appeal was fully briefed, in response to the Court’s order requiring supplementation of the record. See AR at 3746-70; see also dkt. # 28 (order requiring the Commissioner 21 to supplement the record with the SSA’s decision on Plaintiff’s March 2016 SSI claim). Those records appear to include only the June 2016 administrative decisions on Plaintiff’s SSI and DIB applications on 22 initial review. See AR at 3746-70.
23 4 Following the administrative denial of her second application in January 2017, in February 2017, Plaintiff filed a request with the SSA to “automatically reopen[]” her first March 2016 application and to amend the onset date of her second application. AR at 275. 1 97-20, 132-41. After an April 2018 hearing, in August 2018, ALJ Allen Erickson issued a 2 decision finding Plaintiff not disabled (“2018 decision”). Id. at 12-96. Neither the SSA nor ALJ 3 Erickson appear to have addressed Plaintiff’s February 2017 request to reopen her first 4 application. See, e.g., id. at 2319-29. In April 2019, the Appeals Council denied Plaintiff’s
5 request for review, making the ALJ’s decision the Commissioner’s final decision on Plaintiff’s 6 second application. Id. at 1-6. 7 In June 2019, Plaintiff appealed the decision regarding her second application to this 8 Court. AR at 2342-43 (C19-5573-MLP, dkt. # 15). Soon thereafter, in July 2019, Plaintiff filed a 9 third SSI application (“third application”). Id. at 2598. Plaintiff alleged an amended onset date of 10 March 2, 2016. Id. at 2244. While Plaintiff’s appeal before this Court (C19-5573-MLP) was 11 pending, Plaintiff’s third application was denied initially and on reconsideration at the 12 administrative level in October 2019 and February 2020, respectively, and Plaintiff requested a 13 hearing. Id. at 2410-37, 2531-33. 14 On March 26, 2020, this Court affirmed the Commissioner’s final decision and dismissed
15 the appeal with prejudice. AR at 2344-68 (C19-5573-MLP, dkt. # 15). Plaintiff subsequently 16 appealed the Court’s decision on the second application to the United States Court of Appeals for 17 the Ninth Circuit. Id. at 2347-53. While Plaintiff’s appeal was pending before the Ninth Circuit, 18 in April 2021, the United States Supreme Court decided Carr v. Saul. See 593 U.S. 83, 85-93 19 (2021) (holding social security claimants are entitled to raise Appointments Clause challenges 20 for the first time in district court, and there is no requirement that a claimant exhaust the issue in 21 the administrative proceedings below). 22 Following the Carr decision, in June 2021, the Ninth Circuit subsequently vacated this 23 Court’s decision and judgment on the second application, and remanded with instructions that 1 the Court, in turn, remand the case to the SSA so that Plaintiff could obtain a new hearing before 2 a different, properly appointed ALJ. AR at 2357. On June 23, 2021, the Court remanded the case 3 involving the second application to the Commissioner in accordance with Carr and the Ninth 4 Circuit’s order. Id. at 2355-56.
5 Meanwhile, Plaintiff’s third 2019 application continued to be adjudicated at the 6 administrative level. On June 24, 2021, ALJ Malcolm Ross held a hearing on the third 7 application. Id. at 2266-98. However, prior to any decision from ALJ Ross on the third 8 application, on November 10, 2021, the Appeals Council ordered the consolidation of Plaintiff’s 9 second and third applications ALJ. Id. at 2372-73. The Appeals Council then remanded the 10 consolidated second and third applications for a new decision before a new ALJ. Id. 11 In its remand order, the Appeals Council further found that ALJ Erickson’s 2018 decision 12 on Plaintiff’s second application failed to adequately evaluate Plaintiff’s RFC. AR at 2371. 13 Specifically, the Appeals Council found that the ALJ’s step two and step four findings regarding 14 Plaintiff’s “chronic kidney disease, status post melanoma requiring resection and reconstruction
15 surgeries, degenerative changes of the cervical spine, hypertension and hyperlipidemia 16 associated with diabetes mellitus, perforation of the right tympanic membrane with hearing loss, 17 chronic sinusitis, vitamin D deficiency, and allergic rhinitis” were inconsistent. Id. at 2371-72. In 18 support, the Appeals Counsel noted that in ALJ Erickson’s step four RFC analysis, the ALJ 19 afforded “significant weight” to a March 2017 opinion regarding Plaintiff’s physical 20 impairments from non-examining state agency physician, Dr. Louis Martin. Id. at 117, 2328. 21 However, the Appeals Council noted that the ALJ simultaneously rejected Dr. Martin’s opinion 22 that several of Plaintiff’s above listed impairments were severe. Id. Instead, in contradiction of 23 Dr. Martin’s opinion, the ALJ found the impairments were nonsevere because they “caused no 1 more than minimal resultant functional limitations.” Id. at 2372; see also id. at 2321 (ALJ 2 Erickson’s pertinent step two findings). 3 The Appeals Council thus ultimately found that ALJ Erickson erred in failing to “include 4 a narrative discussion explaining how [Plaintiff’s] nonsevere impairments were considered in
5 combination, or how the claimant’s obesity was considered in determining the limitation.” AR at 6 2372. The Appeals Council further noted that Dr. Martin’s 2017 opinion was completed more 7 than one year before the ALJ’s 2018 decision and “before the majority of evidence in the 8 record.” Id. at 2372. On remand, the Appeals Council ordered the new ALJ to reconsider Dr. 9 Martin’s opinion and Plaintiff’s RFC, and, in doing so, to obtain evidence from a medical expert 10 (“ME”). Id. Additionally, the Appeals Council ordered the new ALJ on remand to give further 11 consideration to Plaintiff’s RFC, including specific references to evidence of record; to further 12 evaluate the medical opinions; to reconsider whether Plaintiff was capable of her past work, and, 13 if warranted, to obtain VE testimony and pose hypothetical questions to the VE; and to resolve 14 any conflicts between VE testimony and the DOT and Selected Characteristics of Occupations.
15 Id. 16 Subsequently, the consolidated second and third applications were assigned to ALJ Ross, 17 who was, at the time, presiding over Plaintiff’s third application. ALJ Ross held an October 2022 18 hearing on the consolidated second and third applications. AR at 2301-15. At that hearing, 19 Plaintiff requested that ALJ Ross reopen her first March 2016 SSI application, and amend her 20 alleged onset date to March 2, 2016. Id. at 2306, 2308. 21 On April 27, 2023, ALJ Ross issued a decision finding Plaintiff not disabled on the 22 second and third applications. AR at 2243-59. In that decision, ALJ Ross declined Plaintiff’s 23 request to reopen her first March 2016 application, finding that “the record lacks new and 1 material evidence related to the period addressed in that determination.” Id. at 2244. ALJ Ross 2 thus considered Plaintiff’s disability based on the October 13, 2016 filing date associated with 3 her second application, and subsequently noted that while evidence “dated prior to October 13, 4 2016, [was] considered,” he had only considered such record evidence as it related to the period
5 on or after October 13, 2016. Id. at 2244, 2253; dkt. #23 at 4. 6 Using the five-step disability evaluation process, ALJ Ross found that for the period from 7 October 2016 through the April 2023 decision, Plaintiff had the following severe impairments: 8 lumbar spine and thoracic spine degenerative disc disease and degenerative joint disease, 9 diabetic neuropathy, and obesity. AR at 2246. The ALJ subsequently determined that Plaintiff 10 retained an RFC for light work with additional postural and environmental limitations. Id. at 11 2252. Relying on the testimony of a VE, the ALJ found that Plaintiff could perform her past 12 work as a hotel/motel clerk. Id. at 2259. As a result, the ALJ concluded that Plaintiff was not 13 disabled. Id. 14 III. LEGAL STANDARDS
15 Under 42 U.S.C. § 405(g), this Court may set aside the Commissioner’s denial of social 16 security benefits when the ALJ’s findings are based on legal error or not supported by substantial 17 evidence in the record as a whole. Bayliss v. Barnhart, 427 F.3d 1211, 1214 (9th Cir. 2005). As a 18 general principle, an ALJ’s error may be deemed harmless where it is “inconsequential to the 19 ultimate nondisability determination.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012), 20 superseded on other grounds by 20 C.F.R. § 416.920(a) (citations omitted). The Court looks to 21 “the record as a whole to determine whether the error alters the outcome of the case.” Id. 22 “Substantial evidence” is more than a scintilla, less than a preponderance, and is such 23 relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 1 Richardson v. Perales, 402 U.S. 389, 401 (1971); Magallanes v. Bowen, 881 F.2d 747, 750 (9th 2 Cir. 1989). The ALJ is responsible for determining credibility, resolving conflicts in medical 3 testimony, and resolving any other ambiguities that might exist. Andrews v. Shalala, 53 F.3d 4 1035, 1039 (9th Cir. 1995). While the Court is required to examine the record as a whole, it may
5 neither reweigh the evidence nor substitute its judgment for that of the Commissioner. Thomas v. 6 Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). When the evidence is susceptible to more than one 7 rational interpretation, it is the Commissioner’s conclusion that must be upheld. Id. 8 IV. DISCUSSION 9 A. Judicial Review of the ALJ’s Discretionary Denial of Plaintiff’s Request to Reopen her First SSI Application is Warranted under the Circumstances of 10 this Case
11 For the reasons discussed below, the Court finds that it has jurisdiction to review the 12 ALJ’s failure to apply the correct legal standard in declining to reopen Plaintiff’s March 2016 13 SSI application. 14 In her opening brief, Plaintiff argued that ALJ Ross erred in the legal standard utilized 15 because her prior first application could have been reopened “for any reason” under 20 C.F.R. 16 § 416.1488. (Dkt. # 18 at 2 n.1.) Plaintiff thus argued that the Court should consider the first 17 application de facto reopened. (Id.) 18 The Commissioner acknowledged in opposition that Plaintiff first requested reopening of 19 her March 2016 application in February 2017, and that “it may be true” that the first application 20 could have been reopened “for any reason” such that ALJ Ross erred in his application of the 21 wrong standard. (Dkt. # 23 at 2-3 n.1.) However, the Commissioner argued that, nevertheless, 22 the Court is unable to consider the ALJ’s mistake of law because the decision not to reopen was 23 1 a discretionary decision. (Id.) The Commissioner further argued that the Court should reject 2 Plaintiff’s argument that the ALJ de facto reopened the claim. (Id.) 3 Because the SSA’s June 2016 administrative decision(s) on Plaintiff’s first March 2016 4 application were missing from the record, the Court ordered the Commissioner to supplement the
5 record with those decisions, which he did. (Dkt. # 28; AR at 3746-70.) After review of the SSA’s 6 June 2016 administrative decision on Plaintiff’s first application, the Court found that ALJ Ross 7 indeed applied an erroneous legal standard in considering Plaintiff’s request to reopen. (Dkt. # 30 8 at 1-2.) Specifically, given Plaintiff’s February 2017 request to reopen her March 2016 9 application, the Court noted that ALJ Ross erred in requiring “new and material evidence” to 10 reopen the first application because pursuant to 20 C.F.R. § 416.1488(a), Plaintiff was “entitled 11 to reopening ‘for any reason’” given that her initial February 2017 request to reopen was dated 12 “‘[w]ithin [twelve] months of the date of the notice of the initial [June 2016] determination.’” 13 (Id.) 14 The Court thus ordered the parties to brief whether an exception to the rule against
15 judicial review of discretionary decisions applies in this case, and to address the appropriate 16 remedy in the event the Court determined that an exception applied. (Dkt. # 30.) 17 1. The ALJ’s Decision Regarding Reopening was a Discretionary Decision Under 20 C.F.R. § 416.1488 18 At the outset, the Court notes that in his supplemental brief, the Commissioner argues 19 that Plaintiff was not “entitled” to reopening under subsection (a) as suggested by the Court in its 20 briefing order. (Dkt. # 30.) The Court agrees that reopening was discretionary, and that in its 21 supplemental briefing order, the Court should have stated that Plaintiff “may have been entitled” 22 to reopening “for any reason.” (Cf. id. at 2.) The controlling regulation, which governs the 23 conditions for reopening, indeed provides: 1 A determination, revised determination, decision, or revised decision may be reopened— 2 (a) Within 12 months of the date of the notice of the initial determination, for any reason;
3 (b) Within two years of the date of the notice of the initial determination if we find good cause, as defined in § 416.1489, to reopen the case; or 4 (c) At any time if it was obtained by fraud or similar fault. In determining whether a 5 determination or decision was obtained by fraud or similar fault, we will take into account any physical, mental, educational, or linguistic limitations (including any lack of 6 facility with the English language) which you may have had at the time.
7 20 C.F.R. § 416.1488 (emphasis added). 8 However, the discretionary nature of the reopening determination is not dispositive here. 9 The key issue continues to be the ALJ’s application of an erroneous legal standard in conjunction 10 with his reopening analysis, and the error was problematic regardless of whether the decision to 11 reopen was discretionary or mandatory. 5 In other words, the error lay not in the ALJ’s refusal to 12 reopen the 2016 application but in the ALJ’s application of the mistaken standard. 13 2. The ALJ Applied an Erroneous Legal Standard to his Reopening Evaluation 14 In his supplemental brief, the Commissioner concedes that “[a]ssuming . . . Plaintiff’s 15 initial request to reopen in February 2017, controls, it may be true that the March 2, 2016, claim 16 could have been reopened for ‘any reason.’” (Dkt. # 31 at 2 (emphasis added); cf. dkt. # 23 at 2 17 n.1.) 18 19
20 5 Plaintiff’s argument in her supplemental brief that the ALJ erred in his reopening determination because sufficient “new and material evidence” existed under the misapplied good cause legal standard misses the mark. (See dkt. # 32 at 2.) It also appears to be an attempt to raise in her supplemental brief an issue that 21 Plaintiff failed to raise in her opening brief. (See id.; cf. dkt. # 18 at 2 & n.1) Here, the Court is considering the ALJ’s discretionary reopening determination – a normally unreviewable decision – based 22 specifically on the ALJ’s application of an incorrect good cause legal standard when the appropriate standard was “for any reason.” (See dkt. # 18 at 2) (argument raised by Plaintiff in opening brief). It is the 23 ALJ’s the application of the mistaken legal standard that is at issue – not the ALJ’s analysis of the good cause standard. Accordingly, the Court declines to reach the new issue raised by Plaintiff in her supplemental brief. 1 The record demonstrates that Plaintiff’s initial request to reopen her first application was 2 indeed made in February 2017, which would have been within twelve months of the SSA’s June 3 2016 administrative denial of the first application.6 AR at 275, 3746-79; see also 20 C.F.R. 4 § 416.1488(a). Accordingly, as the Commissioner acknowledged in his opposition brief,
5 Plaintiff’s request on the record at the hearing before ALJ Ross to reopen the first SSI 6 application “appears to be a repeat of her initial request to reopen made in February 2017.” (Dkt. 7 # 23 at 2 n.1.) Therefore, the correct legal standard permitted reopening “for any reason” under 8 subsection (a) – as opposed to for “good cause” as provided in subsection (b). See 20 C.F.R. 9 § 416.1488. Given the language employed by ALJ Ross, there can be no doubt that ALJ Ross in 10 fact applied an erroneous “good cause” standard as opposed to the “for any reason” standard. See 11 AR at 2244; 20 C.F.R. § 416.1489(a)(1) (as referenced by 20 C.F.R. § 416.1488, defining “good 12 cause” to include “new and material evidence”). 13 3. The ALJ’s Mistake of Law Permits the Court to Review the ALJ’s Discretionary Decision 14 An ALJ’s decision not to reopen a prior benefits determination is discretionary and not 15 itself a “final decision” within the meaning of the statute; therefore, it is generally not subject to 16 judicial review. Evans v. Chater, 110 F.3d 1480, 1482 (9th Cir. 1997); Krumpelman v. Heckler, 17 767 F.2d 586, 588 (9th Cir. 1985). However, the SSA’s findings on discretionary decisions may 18 be reversed if they are “tainted by legal error or if the denial of benefits is unsupported by 19 substantial evidence.” Wainwright v. Secretary of Health & Human Servs., 939 F.2d 680, 682 20 (9th Cir. 1991) (citing Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990)). In other 21 words, “[w]hen an ALJ has discretion to do something or not do it, his legal or factual errors in 22 23 6 As noted, there is no evidence in the longitudinal record that the SSA ever ruled on Plaintiff’s initial February 2017 request to reopen; and, in fact, the record suggests the contrary. 1 exercising that discretion are still a basis for reversal.” Joseph L. S. v. Kijakazi, 2023 WL 2 5611408, at *6 (C.D. Cal. Aug. 30, 2023) (citing Mills v. Apfel, 244 F.3d 1, 5 (1st Cir. 2001) 3 (noting that since Service v. Dulles, 354 U.S. 363 (1957), “it has been well established that a 4 discretionary decision may be reviewable to the extent that it rests on an explicit mistake of law
5 or other egregious error”), and Eads v. Sec’y of Dep’t of Health & Hum. Servs., 983 F.2d 815, 6 817 (7th Cir. 1993) (Appeal Council’s denial of review can be reviewed by the court when the 7 refusal rests on a mistake of law)). 8 Here, ALJ Ross’ explicit mistake of law in applying a good cause standard to Plaintiff’s 9 motion to reopen her first application justifies judicial review, and, as discussed in more detail 10 below, warrants remand for further proceedings for the ALJ to reconsider the decision to reopen 11 Plaintiff’s March 2016 application under the correct legal standards. 12 4. Plaintiff has also Stated a Colorable Constitutional Claim that Permits the Court to Review the Discretionary Decision 13 Alternatively, even if, as the Court has found above, an explicit mistake of law is not 14 itself sufficient grounds for review of a discretionary decision in the Ninth Circuit, the Court 15 nevertheless additionally finds that Plaintiff has asserted a sufficient “colorable” constitutional 16 claim that warrants review and remand for reconsideration. See Califano v. Sanders, 430 U.S. 99, 17 109 (1977) (a court can review a discretionary decision to not reopen a prior application if the 18 “denial of a petition to reopen is challenged on constitutional grounds”) . 19 A claimant is entitled to judicial review of a discretionary decision of the Appeals 20 Council where she raises “any colorable constitutional claim of due process violation that 21 implicates a due process right either to a meaningful opportunity to be heard or to seek 22 reconsideration of an adverse benefits determination.” Evans, 110 F.3d at 1483; see also Rolen v. 23 Barnhart, 273 F.3d 1189, 1991 (9th Cir. 2001); Udd v. Massanari, 245 F.3d 1095, 1098 (9th Cir. 1 2001) (“[D]ue process requires that a claimant receive meaningful notice and an opportunity to 2 be heard before his claim for disability benefits may be denied.”). “A challenge that is not 3 ‘wholly insubstantial, immaterial, or frivolous’ raises a colorable constitutional claim.” Udd, 245 4 F.3d at 1099; Rolen, 273 F.3d at 1191. It need not directly relate to the manner or the means of
5 the ALJ’s decision denying review. Evans, 110 F.3d at 1482. 6 Plaintiff argues that the ALJ’s application of the erroneous legal standard violated her 7 procedural due process rights. (Dkt. # 32 at 2.) In support, Plaintiff notes that the ALJ failed to 8 consider pertinent medical evidence, and argues that the Commissioner “essentially hid 9 significant evidence from [Plaintiff] which relates to the issue of whether she is disabled.” (Id. at 10 3-4.) Plaintiff additionally argues the ALJ failed to fully and fairly develop the record. (Id.) 11 In his second supplemental reply brief, the Commissioner counters that Plaintiff’s 12 “procedural irregularities” do not suffice to state a colorable constitutional claim.7 (Dkt. # 34 at 13 1-2.) The Commissioner denies that the SSA “hid” evidence from Plaintiff, contending simply 14 that the missing medical opinion was not part of the particular claim before ALJ Ross or this
15 Court. (Id. at 2.) The Commissioner then essentially invites the Court to find that had ALJ Ross 16 in fact been provided with the opportunity to consider the missing medical opinion evidence 17 opinion, he would have found that it was consistent with his existing findings regarding 18 Plaintiff’s RFC. (Id.) 19 The Court finds Plaintiff has asserted a sufficient claim for a colorable deprivation of 20 procedural due process. Specifically, the ALJ’s failure to apply the correct “for any reason” legal 21 standard resulted in his failure to consider relevant medical evidence associated with Plaintiff’s 22 7 Because the Commissioner’s supplemental brief predated Plaintiff supplemental brief, the 23 Commissioner was unaware of the details of Plaintiff’s constitutional argument at the time the Commissioner filed his brief. (See dkt. # 31 at 3.) The Court thus gave the Commissioner yet another opportunity to file a second supplemental brief, which he did. (Dkt. ## 33-34.) 1 March 2016 application and to adequately develop the record. This, in turn, raises a colorable 2 constitutional claim that Plaintiff was denied a meaningful opportunity to be heard on her first 3 application.8 See Mathews v. Eldridge, 424 U.S. 319, 333 (1976) (“The fundamental requirement 4 of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.”)
5 (citation and quotation marks omitted); see also Richardson, 402 U.S. at 401 (holding that 6 applicants for social security disability benefits are entitled to due process in the determination of 7 their claims); Gonzalez, 914 F.2d at 1203 (holding that “[a]n applicant for social security benefits 8 has a property interest in those benefits”). Notably, the June 2016 opinions from examining 9 psychiatrist, Dr. Kirsten R. Nestler, and the June 2016 opinions from non-examining state 10 agency psychologist, Dr. Kristine Harrison, and physician, Dr. James Irwin, were among the 11 relevant evidence that ALJ Ross failed to consider.9 See AR at 3748, 3754; id. at 2256-58; see 12 also dkt. # 32. The Commissioner’s suggestion that the ALJ need not consider Dr. Nestler’s 13 opinion begs the question because, had the ALJ applied the correct legal standards and reopened 14 the first application, the ALJ would have been required to consider the missing opinions.
15 Moreover, the Court declines the Commissioner’s invitation to make findings regarding Dr. 16 Nestler’s unconsidered opinion in the first instance. (See dkt. # 34 at 2.) 17 The Court further finds that the district court case cited by the Commissioner is 18 distinguishable. (See dkt. # 31 at 3 (citing Hoover v. Colvin, 2013 WL 6385925, at *3–4 (D. Or. 19 Dec.6, 2013) (due process does not require ALJ to reopen where there was no new information 20
8 The Court rejects the Commissioner’s suggestion in his first supplemental brief that Plaintiff was 21 required to be unrepresented and/or to lack mental capacity in order to assert a colorable constitutional claim. (See dkt. # 31 at 3.) The Court further declines the Commissioner’s invitation to step in and make 22 factual findings regarding Plaintiff’s mental capacity at the time she sought reopening in the first instance. See id. 23 9 ALJ Erickson did not consider any of those opinions in conjunction with his April 2018 decision, either. AR at 2328. The only medical opinion ALJ Erickson considered was the opinion from Dr. Martin. Id. 1 presented relevant to barred claim)).) Here, unlike Hoover, ALJ Ross did not apply res judicata 2 to the SSA’s June 2016 denial of Plaintiff’s March 2016 SSI application because the relevant 3 periods associated with Plaintiff’s first and second application did not entirely overlap as did the 4 relevant periods on the Hoover claimant’s DIB applications at issue in that case. See AR at 2244;
5 2013 WL 6385925, at *1 (noting that the ALJ in Hoover found that res judicata applied 6 “because the period of disability alleged in the [claimant’s] renewed [DIB] claims was entirely 7 within the period alleged in the [DIB] initial claims, and because [the claimant] presented no 8 new, material evidence to support a finding of disability”). 9 5. ALJ Ross did not De Facto Reopen Plaintiff’s First Application 10 Although the Court finds above that review of the reopening decision is permissible 11 because Plaintiff has stated a sufficiently colorable constitutional claim, it, however, rejects 12 Plaintiff’s arguments regarding the second asserted exception to review, and finds that ALJ Ross 13 did not de facto reopen the 2016 application. 14 Plaintiff argues that ALJ Ross de facto reopened the March 2016 application because he
15 considered “a substantial amount of medical evidence” that predated October 2016. (Dkt. # 32 at 16 2.) However, Plaintiff also simultaneously argues that ALJ Ross failed to consider important, 17 relevant medical evidence pertaining to the March 2016 application, including the June 2016 18 medical opinion from psychiatrist, Dr. Nestler, and that the SSA also failed to include the 19 missing evidence in the record and to inform Plaintiff of the evidence. (Id. at 3; AR at 3748 (June 20 2016 administrative decision references Dr. Nestler’s opinion).) 21 The Commissioner counters that the ALJ here did not reopen the first application on a de 22 facto basis, but, instead, specifically declined to do so and only considered record evidence as it 23 1 related to the relevant period associated with the second application. (Dkt. # 31 at 4 (citing AR at 2 2244, 2253).) 3 The Court agrees with the Commissioner. As set forth above, ALJ Ross specifically 4 declined to reopen the prior application and to consider a period that predated October 13, 2016.
5 ALJ’s Ross’ limited and occasional reference to evidence that predated October 13, 2016, did not 6 undermine his other explicit findings such that it resulted in a de facto reopening of Plaintiff’s 7 first application. As Plaintiff herself acknowledges, there was significant relevant evidence that 8 the ALJ did not consider. (See dkt. # 32.) 9 6. Remand for Further Proceedings is Warranted 10 Plaintiff asks the Court to find that ALJ Ross de facto reopened the first application, to 11 proceed to the merits of her other arguments, to find that the ALJ erred, and to award benefits. 12 (Dkt. # 32 at 3.) However, this requested remedy rests largely upon Plaintiff’s argument that ALJ 13 Ross de facto reopened the 2016 application, which, for the reasons above, the Court has 14 rejected.
15 The Commissioner contends that remand for further proceedings are required in the event 16 the Court concludes that review is permissible. (Dkt. # 31 at 4.) The Court agrees. 17 Here, ALJ Ross’ mistake of law necessitates remand for further proceedings. On remand, 18 the ALJ is required to first reconsider Plaintiff’s request to reopen Plaintiff’s March 2016 SSI 19 application utilizing the correct “for any reason” legal standard. Assuming that the ALJ 20 determines that Plaintiff’s first SSI application should be reopened, such reopening will require 21 the ALJ to issue a decision on three – as opposed to two – consolidated SSI applications (from 22 March 2016, October 2016, and June 2019). In doing so, the ALJ will be required on remand to 23 complete a new five-step sequential analysis, evaluating in the first instance additional relevant 1 evidence, including the June 2016 medical opinion evidence, and to reconsider the ALJ’s 2 findings at steps one through five in light of the expanded relevant period. Because the Court 3 finds that further proceedings on remand will likely impact the other issues currently before the 4 Court, it does not reach the additional issues on appeal.10 See Greenawalt v. Ricketts, 784 F.2d
5 1453, 1456 (9th Cir. 1986) (holding that to “conserve judicial resources, [a court] should decline 6 to reach the other issues” when remanding for other reasons that may impact the additional 7 issues). 8 V. CONCLUSION 9 For the foregoing reasons, the Commissioner’s final decision is REVERSED and this 10 case is REMANDED for further administrative proceedings under sentence four of 42 U.S.C. 11 § 405(g). On remand, the ALJ must reconsider Plaintiff’s request to reopen her March 2016 SSI 12 application utilizing the correct legal standards; and, if the application is reopened, the ALJ must 13 further develop the record, and proceed to reevaluate Plaintiff’s disability utilizing the requisite 14 five-step analysis in light of additional relevant medical evidence and the expanded relevant time
15 period. 16 Dated this 1st day of July, 2024. 17 A 18 MICHELLE L. PETERSON United States Magistrate Judge 19 20 21 22 23 10 A ruling on the additional issues raised by Plaintiff on appeal is not warranted until the ALJ is able to first reconsider reopening the March 2016 application utilizing the correct legal standards.