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1

 Plaintiff’s first application was initially denied on November 16, 2001. AR at 56. Plaintiff

did not pursue any administrative remedies from that denial. Id. The 2001 application was not reopened

during the adjudication of plaintiff’s second, 2002 disability benefits application, id., and is not at issue

in this matter.

United States District Court

For the Northern District of California

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF CALIFORNIA

TRUDI SMITH,

Plaintiff,

 v.

MICHAEL J. ASTRUE,

Defendant. /

No. C 09-02303 SI

ORDER DENYING PLAINTIFF’S AND

DEFENDANT’S MOTIONS FOR

SUMMARY JUDGMENT AND

REMANDING MATTER FOR FURTHER

PROCEEDINGS

The parties have filed cross-motions for summary judgment in plaintiff’s appeal of a final

decision by the Commissioner of Social Security denying plaintiff benefits. Having carefully considered

the parties’ papers and the administrative record, the Court hereby DENIES plaintiff’s motion and

DENIES defendant’s motion. As discussed below, the matter is remanded for further proceedings

consistent with this Order.

BACKGROUND

Plaintiff first applied for disability benefits in 2001, and then again on November 8, 2002.

Administrative Record (“AR”) at 56.1

 The 2002 application alleged disability and an inability to work

due to rare-metal toxicity, allergies, pain and memory loss dating back to July 27, 1998. AR at 56. The

2002 application was initially denied on February 6, 2003, and again upon reconsideration on May 30,

2003. Id. Plaintiff appealed and a hearing was held before an Administrative Law Judge (“ALJ”), who

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 The ALJ did, however, consider all of the evidence in the record in making a determination

related to the September 2005 claim. AR at 30. 

2

found that plaintiff had the following severe impairments: hepatitis A and B; allergic rhinitis, chemical

allergies, palladium sensitivity; hypothyroidism; and hypertension. AR at 57. In an opinion dated

November 10, 2004, the ALJ concluded that the impairments were not severe enough to qualify plaintiff

for benefits, that plaintiff retained the residual functioning capacity (“RFC”) to perform her past relevant

work and, therefore, denied plaintiff’s claim for benefits. Id., at 64-65.

On September 1, 2005, plaintiff again applied for disability benefits alleging an inability to work

due to: hepatitis A and B; allergic rhinitis, chemical allergies, palladium sensitivity; hypothyroidism;

hypertension; as well as a shoulder impairment. AR at 30-31. After the Social Security Administration

denied the application upon reconsideration on April 3, 2007, the application was heard by an ALJ who

denied the claim for benefits on December 1, 2008. AR at 30, 36.

In his decision, the ALJ first rejected plaintiff’s “implicit” request to reopen and revise the prior

unfavorable decision. AR at 30. The ALJ concluded that res judicata prevented him from reopening

the prior decision to re-adjudicate the issue of plaintiff’s disability status from July 1998 through the

date of the prior ALJ determination, November 10, 2004. Id. Moreover, as plaintiff presented

essentially “identical issues, facts, and laws pertaining to her previous application,” the ALJ did not find

good cause or any other basis upon which to reopen the prior decision. Id.2

The ALJ proceeded to address the presumption of continuing non-disability that arises from a

prior denial, unless a claimant can show “changed circumstances” indicating a greater disability. AR

at 30-31. The ALJ found that plaintiff’s only significant changed circumstance was a “non-severe right

shoulder impairment.” AR at 31. The ALJ also found that plaintiff’s change in age category had no

impact on her ability to perform her past relevant work. Id. As such, the ALJ held that the prior

decision remained res judicata as to plaintiff’s non-entitlement to disability benefits. Id.

On December 9, 2008, plaintiff requested that the Appeals Council review the hearing decision.

The Appeals Council denied plaintiff’s request on March 20, 2009. AR at 16. On April 10, 2009,

plaintiff submitted a request for “reconsideration” to the Appeals Council, attaching additional medical

records dated March 24, 2009 from her treating physician, Dr. Farren. Id. at 6-15. The Appeals Council

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3

 Defendant moves to strike plaintiff’s reply brief for violating this Court’s local rule limiting

the length of a reply brief and for improperly raising new arguments on reply. See Def. Motion to Strike

[Docket No. 18]. Defendant asks the Court to require plaintiff to submit a new reply brief that complies

with the local rules and does not raise new arguments or allow defendant the opportunity to file a surreply to address the new arguments. Id. at 4. The Court DENIES the motion to strike, but admonishes

counsel for plaintiff for his failure to adhere to the Court’s rules. The Court DENIES defendant’s

motion to file a sur-reply brief.

3

denied plaintiff’s request on April 28, 2009, finding that there was no reason under their rules to reopen

and change the decision. AR at 4. The Appeals Council also explained that the additional evidence

submitted by plaintiff was not “new and material” as it was submitted “from the same source previously

discussed and rejected” by the ALJ and medical examiner at the hearing and as it “contained no further

evidence of objective testing to support” Dr. Farren’s opinion. Id.

Plaintiff filed a complaint in this Court seeking judicial review of the ALJ’s decision on May

26, 2009. Id. at 4; see also Complaint at 1 [Docket No. 1]. Both parties now bring cross-motions for

summary judgment.3

 

LEGAL STANDARD

I. Disability Determination

Under the Social Security Act, an individual is deemed “disabled” “if he is unable to engage in

any substantial gainful activity by reason of any medically determinable physical or mental impairment

which can be expected to result in death or which has lasted or can be expected to last for a continuous

period of not less than 12 months.” 42 U.S.C. § 1382c(a)(3)(A). In making a disability evaluation, an

Administrative Law Judge is to use the five-step sequential evaluation process as established by the

Social Security Administration. 20 C.F.R. § 416.920(a)(4). If a finding of disabled or not disabled can

be made at any step of the process, the ALJ will not proceed to the next step. Id. “The burden of proof

is on the claimant at steps one through four, but shifts to the Commissioner at step five.” Bray v.

Comm’r of SSA, 554 F.3d 1219, 1222 (9th Cir. 2009). In the first two steps of the evaluation, the

claimant must establish that he or she (1) is not performing substantial gainful activity (“SGA”) and (2)

is under a “severe” impairment. 20 C.F.R. § 416.920(a)(4)(I)-(ii). An impairment must have lasted or

be expected to last twelve months in order to be considered severe. Id. § 416.909. In the third step, the

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claimant must establish that his or her impairment meets or medically equals a listed impairment

described in the administrative regulations. Id. § 416.920(a)(4)(iii). If the claimant’s impairment does

not meet or equal one of the listed impairments, before proceeding to the fourth step, the ALJ is to make

a residual functional capacity (“RFC”) determination based on all the evidence in the record; this

determination is used to evaluate the claimant’s work capacity for steps four and five. Id. § 416.920(e).

In step four, the claimant must establish that his or her impairment prevents the claimant from

performing relevant work he or she did in the past. Id. § 416.920(a)(4)(iv). In the fifth step, the

Commissioner must demonstrate that the claimant is able to do other work, and that there are a

significant number of jobs in the national economy that claimant can do. Id. §§ 416.920(a)(4)(v), (g);

416.96(c)). 

II. Standard of Review

A district court’s review of a disability determination is limited, and a final administrative

decision may be altered “only if it is based on legal error or if the fact findings are not supported by

substantial evidence.” Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir. 1987). Substantial evidence

is that relevant evidence in the entire record “which a reasonable person might accept as adequate to

support a conclusion.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). Substantial evidence

consists of “more than a mere scintilla but less than a preponderance.” Young v. Sullivan, 911 F.2d 181,

183 (9th Cir. 1990). The Court must consider the entire record, including evidence that both supports

and detracts from the ALJ’s decision. See Aukland v. Massanari, 257 F.3d 1033, 1035 (9th Cir. 2001).

However, the ALJ’s decision must be upheld if the evidence is susceptible to more than one rational

interpretation. Allen v. Secretary of Health and Human Servs., 726 F.2d 1470, 1473 (9th Cir. 1984).

///

///

///

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4

 For the same reason, the ALJ’s rejection of plaintiff’s “implicit” request to reopen the

November 10, 2004 decision, is not a determination subject to judicial review. AR at 30.

5

DISCUSSION

1. The Appeals Council’s Denial of Plaintiff’s Motion to Reopen is Not Subject to Judicial

Review

The ALJ’s December 1, 2008 decision denying benefits became the final agency decision,

subject to judicial review in this Court, on March 20, 2009 when the Appeals Council denied plaintiff’s

request for review. AR at 9. “Once a decision becomes administratively final, the Secretary’s decision

to reopen a claim is purely discretionary. Davis v. Schweiker, 665 F.2d 934, 935 (9th Cir. 1982); 20

C.F.R. § 404.987(a). Discretionary decisions are not ‘final decisions’ within the meaning of section

450(g). Id. at 935. Therefore, a refusal by the Secretary to reopen a previous decision is not a ‘final’

decision subject to judicial review.” Taylor v. Heckler, 765 F.2d 872, 877 (9th Cir. Cal. 1985).4

Therefore, the Appeals Council’s denial of plaintiff’s April 10, 2009 request to reopen, submitted

with additional evidence from plaintiff’s treating physician, is not a “final decision” subject to review

by this Court. Id. In rejecting the request, the Appeals Council did not review the merits of the new

evidence submitted, but simply found that it was not “new and material” evidence that would justify

granting the request to reopen under its rules. AR at 4. Plaintiff cites Haseltine v. Astrue, 2007 WL

4328810 (N.D. Cal . 2007) in support of her argument that the Appeals Council’s April 28, 2009

decision is subject to review. Haseltine, however, simply held that a claimant was not seeking to

“reopen” a final ALJ determination by submitting new arguments and evidence during a second ALJ

proceeding after the initial ALJ determination was remanded by the Appeals Council. In Haseltine, the

administrative review process was ongoing. That is not the case here. Once her request for review was

rejected by the Appeals Council on March 20, 2009, plaintiff’s “administrative review” process closed.

Plaintiff cites cases that stand for the proposition that evidence submitted to the Appeals Council

after an ALJ decision should be considered by a district court on review. See, e.g., Lingenfelter v.

Astrue, 504 F.3d 1028, 1030 n.2 (9th Cir. 2007); Harman v. Apfel, 211 F.3d 1172, 1180 (9th Cir.), cert.

denied, 531 U.S. 1038 (2000). In those cases, the evidence was submitted before the Appeals Council

acted on the request for review. Here, however, the additional evidence was submitted after the Appeals

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Council denied plaintiff’s request for review. 

Plaintiff also argues that she was not seeking to “reopen” the case but instead to have the

Appeals Council “reconsider.” To support her argument, plaintiff relies on Boock v. Shalala, 48 F.3d

348 (8th Cir. 1995) which discusses the distinction between 20 C.F.R. section 404.988 (addressing

requests for reopening a decision within four years of an initial determination based on good cause) and

20 C.F.R. section 404.909 (addressing requests for reconsideration of initial determinations within 60

days, or longer if good cause exists). The distinction between requests for reopening and

reconsideration discussed by the Boock Court, however, demonstrates that plaintiff’s request was to

“reopen” the administrative process. Here, plaintiff filed a timely request for reconsideration of the

initial denial of her application for benefits. AR at 30. That request was denied on April 3, 2007. Id.

 While styled as a request to “reconsider,” plaintiff’s April 10, 2009 request was a request to reopen the

administrative process based on her “additional medical records.” See AR at 4, 6; cf., Subia v. Comm’r

of Soc. Sec., 264 F.3d 899, 901 (9th Cir. Cal. 2001) (noting that plaintiff asked the Appeals Council

“reconsider” its denial of review, and Appeals Council denied the “request to reopen”).

As such, the denial of the motion to reopen is not a “final decision” subject to this Court’s

review.

2. Plaintiff Fails to Demonstrate Materiality and Good Cause for Remand to Consider

New Evidence

Plaintiff also appears to argue that this case should be remanded under sentence six of 42 U.S.C.

section 405(g), so that the ALJ can consider the new evidence, specifically Dr. Farren’s March 24, 2009

response to a “Chronic Fatigue and Shoulder Impairment Residual Functional Capacity Questionnaire.”

As plaintiff notes, “[u]nder 42 U.S.C. § 405(g) (Supp. 2001), in determining whether to remand a case

in light of new evidence, the court examines both whether the new evidence is material to a disability

determination and whether a claimant has shown good cause for having failed to present the new

evidence to the ALJ earlier.” Mayes v. Massanari, 276 F.3d 453, 461-462 (9th Cir. 2001). 

To be material under section 405(g), the new evidence must bear directly and substantially on

the matter in dispute, and plaintiff must “additionally demonstrate that there is a ‘reasonable possibility’

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that the new evidence would have changed the outcome of the administrative hearing.” Mayes, 276 F.3d

at 462. Plaintiff does not show that there is a reasonable probability that the new evidence would have

changed the outcome of the administrative hearings. Specifically the March 24, 2009 response to the

questionnaire does not address the ALJ’s concerns with Dr. Farren’s prior opinion, e.g., Dr. Farren’s

failure to provide citations to medical tests or laboratory results. See AR at 34. The March 24, 2009

questionnaire response cites no medical tests or laboratory results (other than the two MRI’s which the

ALJ considered and found to demonstrate only a non-severe shoulder limitation), and does not provide

evidence to support Dr. Farren’s opinion on the plaintiff’s significant limitations. AR at 10-15.

Moreover, “[a] claimant does not meet the good cause requirement by merely obtaining a more

favorable report once his or her claim has been denied. To demonstrate good cause, the claimant must

demonstrate that the new evidence was unavailable earlier.” Mayes, 276 F.3d at 463. Here, plaintiff

asked Dr. Farren for her response to the questionnaire on March 3, 2009 (almost three months after the

ALJ’s denial), and noted in her cover letter to Dr. Farren that a response would be needed by March 15,

2009. AR at 8-9. Dr. Farren’s response was dated on March 24, 2009, four days after the Appeals

Council denied the request for review. AR at 15, 16. The questionnaire does not cite to any new

evidence or recent tests that came to light after the ALJ hearing or determination. Therefore, plaintiff

fails to show that the additional evidence was unavailable earlier.

3. Res Judicata and the Presumption of Non-Disability

As to the prior “adjudicated period,” July 1998 through November 2004, the prior ALJ

determination is res judicata. Moreover, as noted above, the ALJ’s decision not to reopen the prior

determination is not subject to judicial review. See supra at fn. 4. Therefore, the only issue before the

Court is the ALJ’s December 2008 determination as to the “unadjudicated” period, i.e., the time since

the prior determination.

The November 2004 adverse determination creates a presumption that plaintiff continues not to

be disabled. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). In order to “overcome the

presumption of continuing nondisability arising from the first administrative law judge’s findings of

nondisability,” the claimant “must prove ‘changed circumstances’ indicating a greater disability.” Id.;

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see also Social Security Acquiescence Ruling (“AR”) 97-4(9), WL 742758 (“A claimant may rebut the

presumption by showing a ‘changed circumstance’ affecting the issue of disability with respect to the

unadjudicated period, e.g., 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.”).

However, even where the claimant is able to overcome the presumption of nondisability, prior

determinations of RFC, education and work experience are res judicata in the subsequent proceeding

absent “new and material” evidence on those issues. Chavez, 844 F.2d at 694. “Adjudicators must adopt

such a finding from the final decision on the prior claim in determining whether the claimant is disabled

with respect to the unadjudicated period unless there is new and material evidence relating to such a

finding or there has been a change in the law, regulations or rulings affecting the finding or the method

for arriving at the finding.” AR 97-4(9).

A. The ALJ Failed to Develop an Adequate Record with Respect to Plaintiff’s

Shoulder Impairment

Plaintiff argues that she rebutted the presumption of continuing nondisability due to her “new

shoulder issue.” Reply at 11. The ALJ initially relied on medical examiner Dr. Stanley Hoffman’s

review of plaintiff’s medical records which, according to the ALJ, showed that the claimant has a “nonsevere” right shoulder impairment. AR at 33. The ALJ indicated Dr. Hoffman had “characterized that

impairment as a ‘minimal’ problem.” Id. 

A review of the transcript of the hearing, however, does not support the ALJ’s characterizations

of Dr. Hoffman’s testimony. According to the transcript, when he was asked directly about plaintiff’s

shoulder condition, Dr. Hoffman indicated that, “I can’t – I would want a [sic] orthopedic surgeon to

render an opinion on any disability regarding her right shoulder.” AR at 245. The ALJ’s mischaracterization of Dr. Hoffman’s testimony stems from a question plaintiff’s counsel posed to Dr.

Hoffman. Specifically, plaintiff’s counsel referred to a 2005 radiologist report and asked Dr. Hoffman

for a “layman’s” interpretation of the term “frozen shoulder” – a term that appeared in the 2005 report

as a possible diagnosis to be “considered” – and what such a diagnosis would mean with respect to

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 While plaintiff’s age category changed between the prior and current determinations, from a

“person of advanced age” at 55 to a person of who is “closely approaching retirement age” at 60, the

ALJ found that it had no impact upon the finding that plaintiff remains able to perform her past relevant

work and did not constitute changed circumstances to rebut the presumption of continued nondisability.

AR at 31; see also 20 C.F.R. § 404.1563 (noting that advanced age will be considered as significantly

affecting a person’s ability to adjust to other work). This finding is supported by substantial evidence.

9

physical restrictions. AR at 241. Dr. Hoffman responded that a frozen should would create “a marginal

problem with the right shoulder. . . .” Id. The discussion, therefore, was hypothetical and not based on

an actual diagnosis or the symptoms of plaintiff. 

Plaintiff also notes that in response to the ALJ’s questions about whether plaintiff could use a

computer, Dr. Hoffman responded that he would have to have plaintiff’s complaint that pain shoots up

her arm when using a computer evaluated by a neurologist. AR at 242. 

In addition to relying on a mis-characterization of Dr. Hoffman’s testimony, the ALJ also relied

on plaintiff’s more recent treatment records – records that were not presented to Dr. Hoffman (AR at

230-31) – concluding that “the treatment records from the Marin Medical Clinic, spanning dates from

February to July of 2008, and an MRI of the right shoulder in Exhibits 7F [from February 2008] and 10F

[sic - 9F, from May 2005] do not support the claim of a severe right shoulder impairment for twelve

months.” AR at 33. 

Plaintiff’s argument that the ALJ failed to adequately develop the record is well taken. An ALJ’s

duty to further develop the record is triggered when there is ambiguous evidence or when the record is

inadequate to allow for proper evaluation of the evidence. See Mayes v. Massanari, 262 F.3d 963 (9th

Cir. 2001). Here, Dr. Hoffman’s inability to render an opinion on plaintiff’s alleged shoulder

impairment and the fact that Dr. Hoffman did not have plaintiff’s most recent shoulder treatment records

in front of him, or have the opportunity to be told of the contents of those records, during his testimony

as the medical examiner, lead the Court to conclude that the record was inadequate to allow for the

ALJ’s proper evaluation of the evidence. 

As such, the Court REMANDS this case for further proceedings to develop all necessary

evidence related to plaintiff’s alleged shoulder impairment and the alleged “changed circumstances”

based on the shoulder impairment.5

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 Plaintiff also alleges that defendant’s failure to include plaintiff’s prior medical records –

records submitted prior to the November 2004 decision – mandates that this case be sent back.

However, it is the “findings” in the previous decision, not the evidence submitted, that are considered

in the subsequent claim. See Chavez, 944 F.2d at 693; Lyle, 700 F.2d at 568-69. Moreover, it is

plaintiff’s burden to establish her entitlement to benefits and to submit evidence of her claimed

disability. See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1999). 

10

B. No Evidence of Worsening Allergic Conditions

Reviewing the bulk of the evidence submitted, including plaintiff’s own testimony and that of

her counsel, plaintiff’s main argument appears to be that plaintiff continues to be disabled due to her

alleged multiple chemical allergies or sensitivities. See, e.g., AR at 134-39, 150. However, the evidence

submitted does not show a worsening of her condition, which is necessary to rebut the presumption of

continued nondisability. Indeed, the only new medical evidence submitted are general progress notes

and routine blood and urine tests. There are no tests demonstrating specific allergies or sensitivities,

no analyses of specialized blood work, no evidence of hospital or ER visits, etc. See AR at 151-153,

186-87, 194 (9/2005 - 6/2006 doctor’s notes explaining plaintiff is unable to work because of her

environmental allergies); AR 154-57 (4/2007 urinalysis showing elevated levels of lead and mercury);

AR 178, 180-81, 183-85, 188, 190-93, 195-198 (3/2005 - 1/2007 treating physician notes regarding

allergies, hypertension and hypothyroid conditions).

The only evidence that plaintiff’s symptoms have worsened is from a May 17, 2008 letter from

plaintiff’s treating physician. AR at 212. In that letter Dr. Farren indicates that she “is familiar with

[plaintiff’s] medical records since the onset of the allergy problems and they have not improved. In fact,

they have worsened and have not responded well to any course of treatment. It is my medical opinion

that [plaintiff] has been unable to work full time since 2003.” Id. However, Dr. Farren’s opinion that

plaintiff was disabled since 2003 was already rejected by an ALJ in the November 2004 denial of

benefits. There is nothing in the letter, or in plaintiff’s medical records, to substantiate the claim that

plaintiff’s numerous environmental allergies have, in fact, gotten worse since that time.6

For the foregoing reasons, the ALJ’s conclusion that plaintiff was not disabled as a result of her

allergic conditions rests on substantial evidence.

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CONCLUSION

For the foregoing reasons, plaintiff’s and defendant’s motions for summary judgment are

DENIED. The case is remanded for further proceedings consistent with this Order.

IT IS SO ORDERED.

Dated: August 11, 2010 SUSAN ILLSTON

United States District Judge

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