The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
THE ESTATE OF BEVERLY B.,!
Plaintiff, Civ. No. 3:22-cv-01476-MC
v. OPINION AND ORDER
COMMISSIONER, SOCIAL SECURITY
ADMINISTRATION,
Defendant.
MCSHANE, Judge:
Plaintiff Beverly B. brings this action for judicial review of a final decision of the
Commissioner of Social Security (“Commissioner”) denying her application for disability
insurance benefits (“DIB”) under Title I of the Social Security Act. This Court has jurisdiction
under 42 U.S.C. $8 405(g) and 1383(c)(3). Because the Appeals Council issued a decision that
conformed to the mandate of the Ninth Circuit and this Court, the Commissioner’s decision is
AFFIRMED.
PROCEDURAL AND FACTUAL BACKGROUND
Plaintiff applied for DIB and DWB on January 19, 2011, alleging disability since July 1,
2002. Tr. 163-64, 166.” Her claim was denied initially and upon reconsideration. Tr. 103, 108,
1 Tn the interest of privacy, this Opinion and Order uses only the first name and the initial of the last name of the
non-governmental party in this case and any immediate family members of that party.
1 — OPINION AND ORDER
118, 122. Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”) and
appeared before the Honorable Rudolph Murgo on October 16, 2012, with a supplemental
hearing on October 24, 2012.3 Tr. 2164, 2189. The ALJ issued a “partially favorable” decision,
finding Plaintiff was not disabled prior to January 2, 2012, but became disabled on that date and
was disabled until her death on March 29, 2012. Tr. 95; see Tr. 170. To be eligible for DIB,
Plaintiff must have become disabled by September 30, 2008, the date she was last insured. Tr.
21, 32. To be eligible for DWB, Plaintiff must have become disabled by January 31, 2012. Tr.
85-86. The ALJ noted that Plaintiff’s disability did not extend through the five full month
waiting period under 20 CFR §§ 404.315(a)(4) and 404.335(c)(2). Tr. 96.
Plaintiff sought review from the Appeals Council. Tr. 140. The Appeals Council
remanded the case on September 30, 2016, stating that because the file was incomplete, the
Appeals Council could not act on the request for review. Tr. 145, 143. A supplemental hearing
was held before ALJ Murgo on December 4, 2017. Tr. 2215. The ALJ issued another “partially
favorable” decision; this time finding Plaintiff was not disabled until January 12, 2012. Tr. 30,
31. Again, the ALJ noted that Plaintiff’s disability did not meet the waiting period. Id.
Plaintiff again sought review from the Appeals Council. Tr. 2161. Plaintiff’s request for
review was denied on July 19, 2019, rendering the ALJ’s decision final. Tr. 7. Plaintiff then
sought judicial review of the ALJ’s decision. Tr. 2247. This Court affirmed the Commissioner’s
decision. Tr. 2265. Plaintiff appealed to the Ninth Circuit Court of Appeals. Tr. 2248.
2 “Tr.” refers to the Transcript of Social Security Administrative Record, ECF No. 14, provided by the
Commissioner.
3 Plaintiff passed away before the hearing and a substitute party appeared at all hearings in this case.
2 – OPINION AND ORDER
Before the Ninth Circuit heard the case, the parties filed a stipulated motion to remand,
which the Ninth Circuit granted. Tr. 2258. This Court then issued a conforming order for remand
on December 16, 2021, stating:
On remand, the Appeals Council will issue a favorable decision finding that the
claimant was disabled during the period at issue, which is twelve months prior to
the claimant’s January 19, 2011 application date through the current January 12,
2012 established onset date found by the Administrative Law Judge.
Tr. 2256. In a July 27, 2022, decision, the Appeals Council found Plaintiff was disabled from
January 19, 2010, to January 11, 2012. Tr. 2232–39. Plaintiff now seeks judicial review of this
final decision, arguing that the Appeals Council should have considered the time period between
her original alleged onset date, July 1, 2002, and January 18, 2010.
DISCUSSION
Plaintiff argues that the Commissioner made step five findings unsupported by
substantial evidence. Pl.’s Br. 6–15, ECF No. 14. Specifically, Plaintiff argues that the
“Commissioner has repeatedly failed to identify what skills, if any, Plaintiff acquired from her
past relevant work.” Id. at 8. This is the same argument raised in Plaintiff’s original appeal to this
Court, when the Court found that Plaintiff had forfeited the issue. See Est. of Beverly B. v.
Comm’r Soc. Sec. Admin., No. 3:19-cv-01351-MC, 2021 WL 538923 (D. Or. Feb. 15, 2021).
Plaintiff could have contested this finding at the Ninth Circuit, but instead stipulated to remand
for a limited favorable decision. In doing so, Plaintiff waived review of the underlying issue.
“Under the law of the case doctrine, ‘[this] court is precluded from considering an issue
that has already been decided by the same court, or a higher court in the identical case.’” Buck v.
Berryhill, 869 F.3d 1040, 1050 (9th Cir. 2017). While there are limited exceptions to the law of
the case doctrine – “when the evidence on remand is substantially different, when the controlling
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law has changed, or when applying the doctrine would be unjust” – none of those exceptions
apply here. Stacy, 825 F.3d at 567.
For similar reasons, the Appeals Council was bound by the remand order, which directed
them to find Plaintiff “disabled during the period at issue, which is twelve months prior to the
claimant’s January 19, 2011 application date through the current January 12, 2012 established
onset date found by the Administrative Law Judge.” This Court is similarly bound by the Ninth
Circuit’s mandate. Stacy v. Colvin, F.3d 563, 568 (9th Cir. 2016) (noting that a “district court
commits ‘jurisdictional error’ if it takes actions that contradict the mandate”).
CONCLUSION
For these reasons, the Commissioner’s final decision is AFFIRMED.
IT IS SO ORDERED.
DATED this 14th day of March, 2024.
s/ Michael J. McShane
Michael J. McShane
United States District Judge
4 – OPINION AND ORDER