872 F2d 429 Manning v. R Bowen

872 F.2d 429

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Berna J. MANNING, Plaintiff-Appellant,
Otis R. BOWEN, Secretary of Health and Human Services,

No. 88-3596.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 1989.
Decided March 24, 1989.

Before CANBY, DAVID R. THOMPSON and LEAVY, Circuit Judges.

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Berna J. Manning appeals the district court's decision upholding the Secretary of Health and Human Services' denial of disability benefits. Manning claims the Secretary erred by not reopening a claim denied in 1982, and by rejecting the opinions of treating physicians regarding her current claim. We affirm the decision of the district court.


Manning applied for disability benefits in 1982. Her application was denied, and she did not seek review. Manning reapplied for benefits in early 1986, and her application was again denied. She then requested a hearing before an Administrative Law Judge ("ALJ"), which took place in late 1986.


The ALJ issued a decision on January 13, 1987. He declined to reopen the 1982 denial of benefits. The ALJ then concluded that Manning was not disabled after the 1982 determination and before September 30, 1983, when her insured status expired. This became the final decision of the Secretary when the Appeals Council, despite new evidence, declined review. Manning filed a petition for judicial review. The district court upheld the Secretary's decision. Manning appeals.



This court's review is limited to whether substantial evidence supports the Secretary's decision. See Kornock v. Harris, 648 F.2d 525, 526 (9th Cir.1980). If the evidence is susceptible of more than one rational interpretation, this court must uphold the Secretary's decision. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir.1982).



Manning alleges that since 1978, she has been disabled by the combined physical and emotional effects of systemic lupus erythematosus. A claimant must establish that a medically determinable physical or mental impairment prevents her from engaging in substantial gainful activity, and that her impairment prevents her from performing her previous occupation. Cotton v. Bowen, 799 F.2d 1403, 1405 (9th Cir.1986). She must also prove that the impairment can be expected to result in death, or has lasted or can be expected to last for a continuous period of twelve months. 42 U.S.C. Sec. 423(d)(1)(A).


A previous finding of non-disability creates a presumption of continuing non-disability. Lyle v. Secretary, 700 F.2d 566, 568 (9th Cir.1983). Given Manning's 1982 determination of non-disability, she must then overcome the presumption of continued non-disability with proof of changed circumstances indicating greater disability. See Booz v. Secretary, 734 F.2d 1378, 1379-80 (9th Cir.1984).

A. Reopening the 1982 Determination

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Manning claims the Secretary erred in refusing to reopen the 1982 determination. However, as noted by the district judge, the Secretary's decision not to reopen a previous claim is not subject to judicial review. Even where a claimant never had a hearing, the Secretary's decision to reopen a prior determination is strictly discretionary. Califano v. Sanders, 430 U.S. 99, 107-09 (1977); Taylor v. Heckler, 765 F.2d 872, 877 (1985). Discretionary decisions are not "final decisions" within the meaning of the Social Security Act, Section 205(g), 42 U.S.C. Sec. 405(g). Id. Therefore, the Secretary's refusal to reopen Manning's 1982 determination is not a "final" decision subject to judicial review.


Further, the principle of res judicata applies to findings and decisions on the merits which become final as a result of a claimant's failure to seek administrative review after notice of an adverse decision. Taylor, 765 F.2d at 876. Since the 1982 determination became final when Manning did not seek review, her claim is precluded by the doctrine of administrative res judicata. See id.


Manning contends the issue of affective disorder is not res judicata because it was not considered in the 1982 determination. If the record is patently inadequate to support the ALJ's decision, applying res judicata denies due process. Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir.1982). However, we need not decide whether Manning's affective disorder was considered in 1982, because the evidence of affective disorder she presented in 1986 was insufficient to establish disability within the meaning of the Social Security Act. The ALJ reviewed Manning's evidence of affective disorder and the record adequately supports the ALJ's conclusions. The three additional documents presented to the Appeals Council were not sufficient to alter the outcome.

B. The Current Application For Benefits


We have jurisdiction under 28 U.S.C. Sec. 1291 to review the 1986 claim. Since the issue of disability prior to the 1982 claim is res judicata, the relevant time period for this inquiry is December 1, 1982 through September 30, 1983, when Manning's insured status expired. See Steimer v. Gardner, 395 F.2d 197, 198 (9th Cir.1968).


Manning contends that the Secretary failed to provide clear and convincing reasons, based on substantial evidence, for rejecting the opinions of her treating physicians. She cites Day v. Weinberger, 522 F.2d 1154, 1156 (9th Cir.1975) to support her claim of error. However, Day is inapposite. Day involved a Hearing Examiner who rejected two uncontradicted expert opinions and relied, instead, on medical textbooks and his own observations. Id. at 1156. This court remanded, holding that the ALJ had failed to provide clear and convincing reasons for rejecting uncontradicted expert opinions. Id.


In the present case, the reports and opinions of Manning's treating physicians were inconsistent and contradictory, reflecting the episodic and unpredictable nature of Manning's disorder. Thus, Day does not support Manning's claim of error.


We recently held that "[i]f the treating physician's opinion is contradicted by another doctor and the ALJ wishes to disregard the opinion of the treating physician, the ALJ must set forth 'specific, legitimate reasons for doing so that are based on substantial evidence in the record.' " Davis v. Heckler, No. 85-3867, slip op. at 1220 (9th Cir. Feb. 13, 1989) (quoting Murray v. Heckler, 722 F.2d 499, 502 (9th Cir.1983). The present case, however, involves a comparison of contradictory reports and opinions of more than one treating physician. Therefore, it does not fall squarely within the Davis requirement. In any event, however, the ALJ did provide specific, legitimate reasons based on substantial evidence for his determination, as outlined below.


Jason M. Thompson was a general practitioner who treated Manning. In 1981 he opined that her disease appeared to be well controlled. On November 17, 1982 he reported that Manning's condition was "in remission with [the] exception of her intermittent arthritic complaints." Dr. Thompson ordered prescription refills for Manning from time to time, but there are no office visits or examinations recorded from November 17, 1982 to March 13, 1984. On the latter date, Thompson saw Manning for dysuria and frequent mild backaches. By July 7, 1984, Dr. Thompson noted that Manning "has been feeling good. No more symptoms."


David E. Margaret, M.D., a neurologist, began treating Manning in March 1978 for joint pain. On August 3, 1979, Dr. Margaret stated that Manning suffered from systemic lupus erythematosus, and that "[t]his illness causes her considerable symptoms and disability. It is my opinion that she is unable to work in any regular, full-time employment at this time." This opinion, however, given in 1979, is inconsistent with Dr. Thompson's opinion in 1984 that by then Manning had "[n]o more symptoms."


Sidney Cassell, M.D., began treating Manning in 1984. He reported on April 23, 1984, that Manning suffered from "substantial stiffness, rash, mouth sores, swollen small joints of the hands, swollen knees manifested by Baker's cyst, extreme fatigue, and lots of depression ... as well as insomnia." Dr. Cassell found that Prednisone was "quite helpful with energy and aching." Dr. Cassell concluded that Manning could perform carefully selected jobs, but he doubted that she could do "sustained long term successful wage earning in most jobs." Dr. Cassell's recent medical records indicate that Manning's condition has worsened from 1984 onward, but this does not provide support for Manning's claim of disability during the covered period.


Jerome B. Brem, M.D., treated Manning in 1979 and 1980, but he last saw her on August 26, 1980 when he treated her for a flare-up of her joint aches. On September 10, 1986, Saul Toobert, Ph.D., a psychologist, performed a psychological examination of Manning. He concluded that her depression and somatizing anxiety met the listing for affective disorders. See 20 C.F.R. part 404, subpart P, app. 1, Sec. 12.04. He later concluded that Manning met the listing under section 12.04 for effective disorders as early as 1978. The district court, however, found Dr. Toobert's conclusions to be unpersuasive because they were based on Manning's own account and were not corroborated by any medical record of Manning's treating physicians during the relevant period. The district court also noted that Dr. Margaret's 1987 opinion that Manning met the listings for disability was not supported by Dr. Margaret's own records or those of the other treating physicians.


We have independently examined the record and we agree with the district court. The ALJ provided specific, legitimate reasons based on substantial evidence in the record for rejecting both the initial opinion of Manning's disability and the opinions submitted a considerable period after her insured status had expired. Substantial evidence supports the ALJ's finding that Manning was not disabled during the period from December 1, 1982 through September 30, 1983.



This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3


Because the judgment is not favorable to appellant, her request for an award of attorney fees cannot be granted pursuant to 42 U.S.C. Sec. 406(b)