You're viewing Docket Item 16 from the case Anthony Gregg v. Michael J Astrue. View the full docket and case details.

Download this document:




Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 1 of 13 Page ID #:1169

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA



ANTHONY GREGG,
Plaintiff,
vs.
CAROLYN W. COLVIN, Acting
Commissioner of Social
Security,1

Defendant.

)
)
)
)
)
)
)
)
)
)
)
)

Case No. CV 12-3223-JPR

MEMORANDUM OPINION AND ORDER
REVERSING COMMISSIONER AND
REMANDING FOR FURTHER
PROCEEDINGS

I.

PROCEEDINGS
Plaintiff seeks review of the Commissioner’s final decision
denying his application for Social Security Supplemental Security
Income benefits (“SSI”). The parties consented to the
jurisdiction of the undersigned U.S. Magistrate Judge pursuant to
28 U.S.C. § 636(c). This matter is before the Court on the
parties’ Joint Stipulation, filed January 3, 2013, which the
Court has taken under submission without oral argument. For the

1

On February 14, 2013, Colvin became the Acting
Commissioner of Social Security. Pursuant to Federal Rule of Civil
Procedure 25(d), the Court therefore substitutes Colvin for Michael
J. Astrue as the proper Respondent.

1

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 2 of 13 Page ID #:1170

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

reasons stated below, the Commissioner’s decision is reversed and
this matter is remanded for further proceedings.
II. BACKGROUND

Plaintiff was born on June 10, 1956, and has an 11th-grade

education. (Administrative Record (“AR”) 49, 143.) He
previously worked as a salesperson and a spray painter. (AR 17,
85.)

Plaintiff filed an application for SSI on September 15,

2006.2 (AR 78, 86.) In a written decision issued on April 25,
2008, an Administrative Law Judge (“ALJ”) determined that
Plaintiff was not disabled through the date of the decision. (AR
78-86.) Plaintiff did not request review of the ALJ’s April 25,
2008 decision. (AR 9.)

On July 23, 2009, Plaintiff filed another application for

SSI. (AR 9, 143-64.) Plaintiff alleged that he had been unable
to work since July 12, 2009, because of respiratory and renal
failure, chronic obstructive pulmonary disease (COPD),
hyperlipidemia, neuropathy in both lower extremities, diabetes,
pancreatitis, depression, dialysis, heart problems, headaches,
colitis, and high blood pressure. (AR 87, 96.) His application
was denied initially, on November 17, 2009 (AR 72, 87-91), and
upon reconsideration, on February 25, 2010 (AR 73, 96-101).

On March 12, 2010, Plaintiff requested a hearing before an
ALJ. (AR 103-04.) A hearing was held on February 2, 2011, at
which Plaintiff, who was represented by counsel, appeared and

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

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 3 of 13 Page ID #:1171

testified. (AR 40, 48-71.) In a written decision issued on
February 18, 2011, the ALJ determined that Plaintiff was not
disabled. (AR 9-18.) On March 3, 2011, Plaintiff requested
review of the ALJ’s decision. (AR 37.) On February 8, 2012, the
Appeals Council denied Plaintiff’s request for review. (AR 1-5.)
This action followed.
III. STANDARD OF REVIEW

Pursuant to 42 U.S.C. § 405(g), a district court may review
the Commissioner’s decision to deny benefits. The ALJ’s findings
and decision should be upheld if they are free of legal error and
supported by substantial evidence based on the record as a whole.
§ 405(g); Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427, 28 L. Ed. 2d 842 (1971); Parra v. Astrue, 481 F.3d
742, 746 (9th Cir. 2007). Substantial evidence means such
evidence as a reasonable person might accept as adequate to
support a conclusion. Richardson, 402 U.S. at 401; Lingenfelter
v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007). It is more than
a scintilla but less than a preponderance. Lingenfelter, 504
F.3d at 1035 (citing Robbins v. Soc. Sec. Admin., 466 F.3d 880,
882 (9th Cir. 2006)). To determine whether substantial evidence
supports a finding, the reviewing court “must review the
administrative record as a whole, weighing both the evidence that
supports and the evidence that detracts from the Commissioner’s
conclusion.” Reddick v. Chater, 157 F.3d 715, 720 (9th Cir.
1996). “If the evidence can reasonably support either affirming
or reversing,” the reviewing court “may not substitute its
judgment” for that of the Commissioner. Id. at 720-21.

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

3

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 4 of 13 Page ID #:1172

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

IV. THE EVALUATION OF DISABILITY

People are “disabled” for purposes of receiving Social

Security benefits if they are unable to engage in any substantial
gainful activity owing to a physical or mental impairment that is
expected to result in death or which has lasted, or is expected
to last, for a continuous period of at least 12 months. 42
U.S.C. § 423(d)(1)(A); Drouin v. Sullivan, 966 F.2d 1255, 1257
(9th Cir. 1992).

The Five-Step Evaluation Process

A.
The ALJ follows a five-step sequential evaluation process in

assessing whether a claimant is disabled. 20 C.F.R.
§ 416.920(a)(4); Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir.
1995) (as amended Apr. 9, 1996). In the first step, the
Commissioner must determine whether the claimant is currently
engaged in substantial gainful activity; if so, the claimant is
not disabled and the claim must be denied. § 416.920(a)(4)(i).
If the claimant is not engaged in substantial gainful activity,
the second step requires the Commissioner to determine whether
the claimant has a “severe” impairment or combination of
impairments significantly limiting her ability to do basic work
activities; if not, the claimant is not disabled and the claim
must be denied. § 416.920(a)(4)(ii). If the claimant has a
“severe” impairment or combination of impairments, the third step
requires the Commissioner to determine whether the impairment or
combination of impairments meets or equals an impairment in the
Listing of Impairments (“Listing”) set forth at 20 C.F.R., Part
404, Subpart P, Appendix 1; if so, disability is conclusively
presumed and benefits are awarded. § 416.920(a)(4)(iii). If the

4

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 5 of 13 Page ID #:1173

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

claimant’s impairment or combination of impairments does not meet
or equal an impairment in the Listing, the fourth step requires
the Commissioner to determine whether the claimant has sufficient
residual functional capacity (“RFC”)3 to perform her past work;
if so, the claimant is not disabled and the claim must be denied.
§ 416.920(a)(4)(iv). The claimant has the burden of proving that
she is unable to perform past relevant work. Drouin, 966 F.2d at
1257. If the claimant meets that burden, a prima facie case of
disability is established. Id. If that happens or if the
claimant has no past relevant work, the Commissioner then bears
the burden of establishing that the claimant is not disabled
because she can perform other substantial gainful work available
in the national economy. § 416.920(a)(4)(v). That determination
comprises the fifth and final step in the sequential analysis.
§ 416.920; Lester, 81 F.3d at 828 n.5; Drouin, 966 F.2d at 1257.

B. The ALJ’s Application of the Five-Step Process
At step one, the ALJ found that Plaintiff had not engaged in

any substantial gainful activity since July 23, 2009, his most
recent application date. (AR 12.) At step two, the ALJ
concluded that Plaintiff had “the following conditions of ill-
being: diabetes mellitus with retinopathy and peripheral
neuropathy; hypertension, status post cerebrovascular accident;
hyperlipidemia; and chronic obstructive pulmonary disease.” (Id.
(citation omitted.)) The ALJ further found that the combination
of these impairments

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

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 6 of 13 Page ID #:1174

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

causes significant limitation in the claimant’s ability
to perform basic work activities. Therefore, the
claimant has a severe impairment.

(Id.) At step three, the ALJ determined that Plaintiff’s
impairments did not meet or equal any of the impairments in the
Listings. (AR 13.) At step four, the ALJ found that Plaintiff
retained the RFC to perform light work4 except “he can
occasionally climb ramps and stairs, but he must never climb
ladders, ropes, or scaffolds; and he can occasionally balance,
stoop, kneel, crouch, and crawl.” (AR 14.) Based on the
vocational expert’s testimony taken by the prior ALJ before his
April 25, 2008 decision, the ALJ concluded that Plaintiff could
perform his past relevant work as a salesperson as generally
performed in the national economy. (AR 17.) Accordingly, the
ALJ determined that Plaintiff was not disabled without reaching
step five of the evaluation process. (AR 18.)
V.

RELEVANT FACTS
On September 23, 2009, Plaintiff was examined by consulting

internist Dr. John Sedgh. (AR 784-88.) After reviewing
Plaintiff’s medical records and performing a physical

4

“Light work” is defined as involving “lifting no more
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
regulations further specify that “[e]ven though the weight lifted
may be very little, a job is in this category 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.”
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

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 7 of 13 Page ID #:1175

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

examination, Dr. Sedgh opined that Plaintiff retained the RFC for
light work except that he could only occasionally kneel, crouch,
or stoop. (Id.)

In November 2009, state-agency nonexamining physician Dr. P.

N. Ligot completed a physical RFC assessment and indicated that
Plaintiff’s diagnoses included hypertension, status post cerebral
vascular accident, and respiratory failure/chronic obstructive
pulmonary disease. (AR 905-10.) Dr. Ligot opined that Plaintiff
retained the RFC for light work except that he could only
occasionally climb, stoop, kneel, crouch or crawl and should
never balance. (AR 906-07.) Moreover, because of Plaintiff’s
COPD/respiratory failure and status post-cerebral vascular
accident, he should avoid concentrated exposure to hazards and
even moderate exposure to fumes, odors, dusts, gases, and poor
ventilation. (AR 908.) These findings were confirmed by state-
agency nonexamining physician Dr. R. E. Brooks on February 25,
2010. (AR 936-38.)

Before engaging in the five-step analysis, the ALJ noted

that Plaintiff failed to seek review of the ALJ’s April 25, 2008
decision denying his application “and therefore, that decision is
administratively final.” (AR 9.) As a result, the ALJ found
that “there is a presumption of non-disability arising from” that
decision and that in order to overcome the presumption, Plaintiff
“must prove ‘changed circumstances’ indicating a greater
disability established by new and material evidence.” (AR 9-10.)
The ALJ concluded that Plaintiff “failed to rebut the presumption
of continuing non-disability” and therefore “I must adopt” the
findings contained in the prior ALJ’s April 25, 2008 decision.

7

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 8 of 13 Page ID #:1176

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

(AR 10.)

At step two, the ALJ stated that his findings were based on
the prior ALJ’s analysis of the medical records, “introduced as
collateral estoppel” and “corroborated by the current medical
evidence[.]” (AR 12.) In assessing Plaintiff’s physical
impairments, the ALJ noted that he gave “particular emphasis” to
the opinions of Dr. Sedgh and the state-agency nonexamining
physicians, which he found to be “persuasive.” (Id.)
Thereafter, in determining Plaintiff’s RFC, the ALJ again noted
that he based his assessment “primarily” on the opinions of the
nonexamining physicians and Dr. Sedgh, “who found the claimant
capable of light work.” (AR 14.) The ALJ explained that “it is
evident that the State Agency doctors essentially adopted the
prior Administrative Law Judge decision and found no material
change of circumstance, as do I.” (Id. (citation omitted).)
VI. DISCUSSION

Plaintiff alleges that the ALJ erred in determining that

Plaintiff had not overcome the continuing presumption of
nondisability arising from the ALJ’s April 25, 2008 decision
denying Plaintiff’s prior SSI application. (J. Stip. at 3-7, 10-
12.) Specifically, Plaintiff contends that his COPD is a “new
impairment” that was not raised in his prior application or
considered by the prior ALJ in his April 25, 2008 decision. (J.
Stip. at 5.) According to Plaintiff, “[t]he presence of this new
impairment that previously was not considered constitutes a
change[] in circumstances that precluded the application of res
judicata.” (Id.) Finally, Plaintiff notes that the nonexamining
state-agency physician opined that Plaintiff suffered limitations

8

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 9 of 13 Page ID #:1177

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

related to his COPD that did not exist during the prior period,
which “further demonstrates that there has been a change in
circumstances” precluding the application of res judicata. (J.
Stip. at 5.)

Applicable Law

A.
“The principles of res judicata apply to administrative
decisions, although the doctrine is applied less rigidly to
administrative proceedings than to judicial proceedings.” Chavez
v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). “Normally, an ALJ’s
findings that a claimant is not disabled ‘creates a presumption
that the claimant continued to be able to work after that date.’”
Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009) (quoting
Lester, 81 F.3d at 827). “The presumption does not apply,
however, if there are ‘changed circumstances.’” Lester, 81 F.3d
at 827 (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir.
1985)); accord Acquiescence Ruling 97-4(9), 1997 WL 742758, at *3
(“When adjudicating the subsequent claim involving an
unadjudicated period, adjudicators will apply a presumption of
continuing nondisability and determine that the claimant is not
disabled with respect to that period, unless the claimant rebuts
the presumption . . . by showing a ‘changed circumstance’
affecting the issue of disability with respect to the
unadjudicated period[.]”). Examples of changed circumstances
precluding the application of res judicata to a subsequent
unadjudicated period of alleged disability include “[a]n increase
in the severity of the claimant’s impairment,” “a change in the
claimant’s age category, as defined in the Medical-Vocational
Guidelines,” “where the claimant raises a new issue, such as the

9

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 10 of 13 Page ID #:1178

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

existence of an impairment not considered in the previous
application,” and “where the claimant was unrepresented by
counsel at the time of the prior claim.” Lester, 81 F.3d at 827-
28 (citations omitted); see also Acquiescence Ruling 97-4(9),
1997 WL 724758, at *3 (explaining that examples of changed
circumstances include “a change in the claimant’s age category
under 20 CFR 404.1563 or 416.963, an increase in the severity of
the claimant’s impairment(s), the alleged existence of an
impairment(s) not previously considered, or a change in the
criteria for determining disability”).

Analysis

B.
The ALJ’s determination that Plaintiff failed to rebut the
presumption of continuing nondisability arising from the ALJ’s
April 25, 2008 decision is not supported by substantial evidence.
Specifically, Plaintiff alleged a new impairment, COPD, in his
most recent application, and the ALJ determined, at step two,
that in combination with his other conditions it amounted to a
severe impairment. (AR 12, 87, 96-97.) Therefore, Plaintiff’s
COPD was a new impairment that was not considered by the prior
ALJ in his April 25, 2008 decision. (Compare AR 9-18 with AR 78-
86.) Because Plaintiff alleged, and the ALJ determined, that
Plaintiff has a new impairment that was not considered by the
prior ALJ, it was improper for the ALJ to apply the presumption
of continuing nondisability when deciding the instant SSI
application. See, e.g., Lester, 81 F.3d at 828 (holding that
plaintiff’s allegation of new impairment that was not raised in
prior application or addressed in prior decision and change in
plaintiff’s age category each independent reason precluding

10

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 11 of 13 Page ID #:1179

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

application of res judicata); Light v. Soc. Sec. Admin., 119 F.3d
789, 792 (9th Cir. 1997) (finding presumption of nondisability
rebutted by evidence of diagnosis of new impairment and evidence
that previous impairment had become increasingly severe, either
of which could have been basis for finding of disability either
independently or when aggregated with all of plaintiff’s
preexisting infirmities); Vasquez, 572 F.3d at 597-98 (holding
that “because Vasquez raised a new issue not before ALJ Stacy and
entered the ‘closely approaching advanced age’ category, it was
improper for ALJ Rogers to apply a presumption of continuing non-
disability when deciding Vasquez’s second application”).
Defendant argues that because the ALJ did not find that
Plaintiff’s COPD was a “severe” impairment, the ALJ properly gave
res judicata effect to the prior ALJ’s decision. (J. Stip. at
9.) The Ninth Circuit, however, rejected this argument in
Vasquez and found it “irrelevant, because . . . a claimant
defeats the presumption of continuing nondisabilty by raising a
new issue in a later application.” Vasquez, 572 F.3d at 598 n.9.
The Ninth Circuit explained that “all an applicant has to do to
preclude the application of res judicata is raise a new issue in
the later proceeding.” Id. (citation omitted). Acquiescence
Ruling 97-4(9) requires only a “‘changed circumstance’ affecting
the issue of disability,” not necessarily a severe impairment.
1997 WL 742758, at *3.

Moreover, although the evidence does seem to support the
ALJ’s finding that Plaintiff is not disabled, the Court cannot
conclude that the ALJ’s error in giving res judicata effect to
the prior ALJ’s April 25, 2008 decision was harmless. The ALJ

11

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 12 of 13 Page ID #:1180

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

clearly adopted the opinions of Drs. Sedgh, Ligot, and Brooks in
assessing Plaintiff’s RFC (AR 12, 14-15), but he failed to
include or even discuss the environmental limitations opined by
Dr. Ligot as a result of Plaintiff’s respiratory failure/COPD and
status post-cerebral vascular accident. (Compare AR 12 with AR
908.) In addition, the VE testimony relied upon by the ALJ in
determining that Plaintiff could perform his past relevant work
as a salesman was offered at the hearing before the prior ALJ
and, thus, did not include the environmental limitations opined
by Dr. Ligot. (AR 17.) As a result, there is no VE testimony to
support a finding that Plaintiff could perform his past relevant
work – or any other work – if the environmental limitations
opined by Dr. Ligot were incorporated into Plaintiff’s RFC.
Therefore, the Court cannot conclude that the ALJ’s disability
determination would have been the same had he found that
Plaintiff had rebutted the presumption of continuing
nondisability and not given res judicata effect to the prior
ALJ’s decision.

In sum, the ALJ’s determination that Plaintiff failed to
rebut the continuing presumption of nondisability arising from
the prior ALJ’s decision was not supported by substantial
evidence, and Plaintiff is entitled to reversal on that basis.
On remand, the ALJ shall reassess whether Plaintiff is disabled
without giving res judicata effect to the ALJ’s April 25, 2008
decision.
VII. CONCLUSION

When error exists in an administrative determination, “the
proper course, except in rare circumstances, is to remand to the

12

Case 2:12-cv-03223-JPR Document 16 Filed 06/04/13 Page 13 of 13 Page ID #:1181

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

agency for additional investigation or explanation.” INS v.
Ventura, 537 U.S. 12, 16, 123 S. Ct. 353, 355, 154 L. Ed. 2d 272
(2002) (citations and quotation marks omitted); Moisa v.
Barnhart, 367 F.3d 882, 886 (9th Cir. 2004). Accordingly,
remand, not an award of benefits, is the proper course in this
case. See Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135,
1136 (9th Cir. 2011) (remand for automatic payment of benefits
inappropriate unless evidence unequivocally establishes
disability). As noted above, on remand, the ALJ shall reevaluate
Plaintiff’s claim of disability without giving res judicata
effect to the prior ALJ’s April 25, 2008 decision.

ORDER

Accordingly, IT IS HEREBY ORDERED that (1) the decision of
the Commissioner is REVERSED; (2) Plaintiff’s request for remand
is GRANTED; and (3) this action is REMANDED for further
proceedings consistent with this Memorandum Opinion.

IT IS FURTHER ORDERED that the Clerk of the Court serve

copies of this Order and the Judgment herein on all parties or
their counsel.

DATED: June 4, 2013

______________________________
JEAN ROSENBLUTH
U.S. Magistrate Judge

13