United States v. 2012-03-19 | 11-35047 | DEBORAH OBERG V. MICHAEL ASTRUE | nonprecedential |…

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Lucy H. Koh, United States District Judge for the Northern**
District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEBORAH J.M. OBERG, ) No. 11-35047
)
Plaintiff – Appellant, ) D.C. No. 3:09-cv-05526-RBL
)
v. ) MEMORANDUM*
)
MICHAEL J. ASTRUE, )
Commissioner of Social Security, )
)
Defendant – Appellee. )
)
)
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Argued and Submitted March 5, 2012
Seattle, Washington
Before: FERNANDEZ and PAEZ, Circuit Judges, and KOH, District Judge.**
Deborah J.M. Oberg appeals the district court’s judgment, which affirmed
the Commissioner of Social Security’s denial of disability insurance benefits. We
FILED
MAR 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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At the beginning of the hearing on May 14, 2008, the ALJ announced, and1
counsel acknowledged, that the presumption of nondisability would apply.
Moreover, the ALJ’s decision on August 20, 2008, made it clear that the
presumption was being applied.
The ALJ even cited one of our prior cases, which discussed the res judicata2
(continued...)
2
affirm in part, reverse in part, and remand.
(1) Before making the current application, Oberg had applied for
disability insurance benefits and the Commissioner had determined that she was
not disabled for the period ending July 31, 2003, the date of the decision in that
case. In this case, therefore, that determination is res judicata and creates a
presumption that she was not disabled for the present period, which she claimed
began May 23, 2003, and ended June 30, 2005, when her Social Security disability
insurance coverage terminated. See Miller v. Heckler, 770 F.2d 845, 848 (9th Cir.
1985); see also Vasquez v. Astrue, 572 F.3d 586, 597 (9th Cir. 2009). As Oberg
notes, that does not apply when the Administrative Law Judge (ALJ) has reopened
the prior period expressly or de facto. See Lewis v. Apfel, 236 F.3d 503, 510 (9th
Cir. 2001); Krumpelman v. Heckler, 767 F.2d 586, 589 (9th Cir. 1985). However,
on this record, the ALJ made it clear that he was not reopening the prior decision
when he plainly stated that the presumption would apply and also pointed out that1
nothing had changed since the prior adjudication. The mere fact that the ALJ did2

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(...continued)2
effect of prior decisions. See Chavez v. Bowen, 844 F.2d 691, 693–94 (9th Cir.
1988).
See Carmickle v. Comm’r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir.3
2008); Thomas v. Barnhart, 278 F.3d 947, 958–59 (9th Cir. 2002); see also Orteza
v. Shalala, 50 F.3d 748, 749–50 (9th Cir. 1995) (per curiam).
See Parra v. Astrue, 481 F.3d 742, 750 (9th Cir. 2007); Thomas, 278 F.3d at4
958–59.
3
consider the record of the prior decision is of no import; plainly he had to do so in
order to determine whether there had been a substantial change in Oberg’s
condition since that time. See Krumpelman , 767 F.2d at 589.
(2) Oberg next contends that the ALJ improperly discredited her
testimony, in part, when considering whether there had been a substantial change
in her condition during the period in question. We disagree. We have carefully
reviewed the record and it is apparent both that the medical evidence indicated no
real change in her medical condition since the prior determination, and that her3
own testimony as to whether her condition had substantially worsened since then
offered no additional substantial support to her claim. We cannot say that the ALJ4
erred. See Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.
2009).
(3) Oberg also asserts that the ALJ should not have relied upon the 2003

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20 C.F.R. § 404.1563(c).5
Id. § 404.1563(d).6
Of course, exhaustion before the Appeals Council is not required. See Sims7
v. Apfel, 530 U.S. 103, 112, 120 S. Ct. 2080, 2086, 147 L. Ed. 2d 80 (2000).
That constitutes a waiver. See Crawford v. Lungren, 96 F.3d 380, 389 n.68
(9th Cir. 1996); see also Greger v. Barnhart, 464 F.3d 968, 973 (9th Cir. 2006).
That, too, constitutes a waiver. See United States v. Kama, 394 F.3d 1236,9
1238 (9th Cir. 2005).
4
determination at Step 5 of the analysis, which, of course, relied upon the testimony
of the vocational expert. We again disagree. As already noted, that determination
was res judicata, absent some substantial change. To the extent that she seeks to
attack the 2003 determination, that attack comes too late. See Taylor v. Heckler,
765 F.2d 872, 876 (9th Cir. 1985).
(4) The ALJ did err when he failed to note that Oberg had changed age
categories after the date of the first decision. She went from the category of “a
younger person” to that of “a person closely approaching advanced age,” but the5 6
ALJ did not consider that. We have held that a change in age category is material
for the purposes of determining a person’s ability to do other work in the economy.
See Lester v. Chater, 81 F.3d 821, 828 (9th Cir. 1995); Chavez, 844 F.2d at 694.
However, Oberg failed to raise the issue before the Appeals Council, or at the7
district court, or in her opening brief. Nevertheless, the Commissioner chose to8 9

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See SEC v. Chenery Corp., 332 U.S. 194, 196–97, 67 S. Ct. 1575, 1577, 9110
L. Ed. 1995 (1947); Bray, 554 F.3d at 1225–26.
5
argue the issue in his answering brief; therefore we have considered it. See Boldt
v. Crake (In re Riverside-Linden Inv. Co.), 945 F.2d 320, 324 (9th Cir. 1991). We
are loath to attempt to determine the effect of the ALJ’s serious error in the first
instance — it might affect Oberg’s residual functional capacity, the testimony of
the vocational expert, or other aspects of the Commissioner’s decision. Therefore,
we will reverse and remand for further consideration.
(5) Finally, Oberg argues that the Appeals Council erred when it did not
remand the matter to the ALJ after she submitted two new lay affidavits attesting to
her condition. The Appeals Council rejected them, as, of course, it was entitled to
do. See Taylor v. Comm’r of Soc. Sec. Admin., 659 F.3d 1228, 1232 (9th Cir.
2011); see also 20 C.F.R. §§ 404.970, 416.1476. However, its reason for doing so
— that the affidavits were about a time after the ALJ ruled — was incorrect. In
general, we do not supply grounds that the agency has not relied upon in reaching
its decision, and we will not do so here. It would be more efficient if the10
Commissioner addressed the matter in the first instance.
AFFIRMED in part, REVERSED in part, and REMANDED to the district
court for further remand to the Commissioner for further proceedings consistent
with this disposition. The parties shall bear their own costs on appeal.

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