ORDER

KENDALL J. NEWMAN, Magistrate Judge.

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act").1 In his motion for summary judgment, plaintiff principally contends that the Commissioner erred by finding that plaintiff was not disabled since October 25, 2002, plaintiff's alleged disability onset date. (ECF No. 15.) The Commissioner filed an opposition to plaintiff's motion and a cross-motion for summary judgment. (ECF No. 20.) Thereafter, plaintiff filed a reply brief. (ECF No. 21.)

For the reasons that follow, the court grants in part and denies in part plaintiff's motion for summary judgment; grants in part and denies in part the Commissioner's cross-motion for summary judgment; dismisses for lack of subject matter jurisdiction plaintiff's request for judicial review of the Commissioner's decision not to reopen plaintiff's prior claim for benefits for the period of October 25, 2002, through August 17, 2006; and remands the remainder of the action for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g).

I. BACKGROUND

Plaintiff was born on December 28, 1955, has a limited tenth grade education, is able to communicate in English, and previously worked primarily as a carpenter.2 (Administrative Transcript ("AT") 23, 45-46, 71, 75.) On October 25, 2002, plaintiff suffered an industrial back injury while lifting overhead a box weighing between 80-100 lbs, and he has not performed substantial gainful activity since that date. (AT 18, 63, 241, 340.)

Plaintiff first applied for DIB in February 2004, alleging disability primarily based on degenerative disc disease, osteoarthritis, and hypertension, with an alleged disability onset date of October 25, 2002. On August 17, 2006, after the agency denied plaintiff's application initially and upon reconsideration, an administrative law judge ("ALJ"), Laura Speck Havens, likewise found that plaintiff was not disabled from October 25, 2002, through the date of her decision. (AT 61-66.) Plaintiff did not appeal that decision, which became administratively final. (AT 15.)

Thereafter, on June 29, 2010, plaintiff filed a new application for DIB, again alleging that he was unable to work as of October 25, 2002, due to back problems, knee problems, and a tumor in his kidney. (AT 15, 71, 241.) After plaintiff's claim was denied both initially and upon reconsideration, plaintiff requested a hearing before an ALJ, which took place before ALJ Christopher Inama on March 8, 2012, and at which plaintiff (represented by a non-attorney representative) and a vocational expert ("VE") testified. (AT 15, 33-58.)

In a decision dated March 21, 2012, ALJ Inama declined to reopen ALJ Havens's prior decision, and determined that plaintiff had not been under a disability, as defined in the Act, from August 18, 2006, the day after the date of ALJ Havens's decision, through December 31, 2008, the date that plaintiff was last insured for purposes of DIB benefits. (AT 15-25.) ALJ Inama's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 11, 2012. (AT 1-6.) Thereafter, plaintiff filed this action in federal district court on November 13, 2012, to obtain judicial review of the Commissioner's final decision. (ECF No. 1.)

II. ISSUES PRESENTED

Plaintiff has raised the following issues: (1) whether the ALJ erred in declining to reopen the prior unfavorable August 17, 2006 decision; (2) whether the Appeal Council erred in not remanding the action to the ALJ based on the evidence plaintiff submitted for the first time to the Appeals Council; (3) whether the ALJ improperly evaluated the medical opinion evidence; and (4) whether the ALJ improperly evaluated plaintiff's credibility.3

III. LEGAL STANDARD

The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). "The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation." Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

IV. DISCUSSION

A. Summary of the ALJ's Findings

The ALJ evaluated plaintiff's entitlement to DIB pursuant to the Commissioner's standard five-step analytical framework.4 As an initial matter, the ALJ declined to reopen the prior unfavorable August 17, 2006 decision, and found that plaintiff remained insured for purposes of DIB through December 31, 2008. (AT 15-16, 18.) At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity from August 18, 2006, the day after the date of the prior unfavorable decision, through December 31, 2008, plaintiff's last insured date. (AT 18.) At step two, the ALJ determined that plaintiff had the following severe impairments through the date last insured: degenerative disc disease and renal cancer.5 (Id.) However, at step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, through plaintiff's date last insured. (AT 19.)

Before proceeding to step four, the ALJ assessed plaintiff's residual functional capacity ("RFC") for the relevant time period as follows:

(AT 19.)

At step four, the ALJ found that plaintiff was unable to perform any past relevant work through his date last insured. (AT 23.) Finally, at step five, the ALJ determined, in reliance on the VE's testimony, that, through the date last insured, considering plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that plaintiff could have performed, including the representative occupations of cashier, storage rental clerk, and assembler of small products. (AT 23-24.)

Accordingly, the ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from August 18, 2006, the day after the date of the prior ALJ's unfavorable decision, through December 31, 2008, plaintiff's last insured date. (AT 24.)

B. Plaintiff's Substantive Challenges to the Commissioner's Determinations

1. Whether the ALJ erred in declining to reopen the prior unfavorable August 17, 2006 decision

Plaintiff contends that ALJ Inama's refusal to reopen the prior unfavorable August 17, 2006 decision by ALJ Havens constituted reversible error. That argument lacks merit.

Ordinarily, "[o]nce a decision becomes administratively final, the Secretary's decision to reopen a claim is purely discretionary." Taylor v. Heckler, 765 F.2d 872, 877 (9th Cir. 1985). "Therefore, a refusal by the Secretary to reopen a previous decision is not a `final' decision subject to judicial review" and a federal court typically lacks subject matter jurisdiction to review such a decision. Id. Nevertheless, the Ninth Circuit has recognized that judicial review is available in "a case in which a claimant raises a colorable constitutional challenge to the Secretary's decision." Panages v. Bowen, 871 F.2d 91, 93 (9th Cir. 1989). Such a constitutional challenge "must relate to the manner or means by which the Secretary decided not to reopen the prior decision, rather than to the merits of the prior decision or the means by which that decision was reached." Id.

In this case, there is no indication that plaintiff's due process or other constitutional rights were violated. As an initial matter, plaintiff does not claim that the Commissioner failed to notify plaintiff of his right to appeal the August 17, 2006 decision. Indeed, the record shows that plaintiff was advised in writing of his appellate rights, but, for unknown reasons, plaintiff elected not to pursue them. (AT 59-60.)

Furthermore, the record reveals no due process or other constitutional violation with respect to ALJ Inama's decision not to reopen the prior claim. Plaintiff makes much of the fact that ALJ Inama was not certain whether specified medical evidence in the record before ALJ Inama were previously considered by ALJ Havens, and contends that ALJ Inama should have obtained and reviewed the complete prior file concerning the previous claim. However, that argument ignores the reality that ALJ Inama himself had before him both ALJ Havens's prior decision and the potentially new evidence. Thus, ALJ Inama considered the potentially new evidence, and plaintiff was given a meaningful opportunity to explain how the potentially new evidence was material and inconsistent with ALJ Havens's prior non-disability finding. Nevertheless, after reviewing and discussing these additional records in his decision, ALJ Inama ultimately concluded that any potentially new evidence was not material, i.e., would not reasonably have changed ALJ Havens's prior decision. (AT 16.) Although plaintiff no doubt disagrees with ALJ Inama's non-materiality finding, plaintiff does not raise a colorable constitutional claim with respect to the manner or means by which ALJ Inama reached his decision.6

Plaintiff posits that "[r]es judicata of administrative decisions does not acquire the rigid finality of judicial proceedings" and that "[f]airness in the administrative process is more important than finality of administrative judgments." Thompson v. Schweiker, 665 F.2d 936, 941 (9th Cir. 1982). However, in this case, the record does not show that ALJ Inama rigidly applied the principles of res judicata. For example, he did not summarily refuse to reopen the prior application solely based on the expiration of time, nor did he arbitrarily refuse to consider any new evidence, thereby potentially giving rise to some type of due process violation that this court could review. Instead, he expressly noted that res judicata was not to be applied rigidly in administrative proceedings, and then went on to consider whether there was in fact new and material evidence that might warrant reopening the prior claim. (AT 16.) Again, while plaintiff may disagree with ALJ Inama's decision not to reopen the prior claim, the court cannot say that the record is "patently inadequate" to support the findings of ALJ Havens and ALJ Inama, such that application of res judicata would be "tantamount to a denial of due process" and result in manifest injustice. Thompson, 665 F.2d at 940-41.

Because the court finds that plaintiff fails to raise a colorable constitutional challenge to the Commissioner's decision not to reopen the prior claim, the court concludes that it lacks subject matter jurisdiction to review that decision. Thus, the relevant period under review for purposes of the remainder of the action is August 18, 2006, the day after the date of ALJ Havens's decision, to December 31, 2008, plaintiff's date last insured.

2. Whether the Appeal Council erred in not remanding the action to the ALJ based on the evidence plaintiff submitted for the first time to the Appeals Council

Plaintiff submitted certain records to the Appeals Council that had not been presented to the ALJ, including a May 3, 2012 functional capacity assessment from his treating primary care provider, Dr. Manuel Canga; a May 21, 2012 functional capacity assessment from his treating pain management physician, Dr. Kyle Heron; and January 2007 treatment notes from Dr. Heron's office. (AT 542-54.) Plaintiff argues that the Appeals Council erred in not remanding the action to the ALJ for consideration of this evidence.

"[W]hen the Appeals Council considers new evidence in deciding whether to review a decision of the ALJ, that evidence becomes part of the administrative record, which the district court must consider when reviewing the Commissioner's final decision for substantial evidence." Brewes v. Comm'r of Soc. Sec., 682 F.3d 1157, 1163 (9th Cir. 2012). In this case, the Appeals Council stated that it had considered the additional evidence submitted by plaintiff, but that it did not provide a basis for changing the ALJ's decision. (AT 1-2, 5.) After reviewing the additional evidence, the court cannot confidently conclude that the ALJ's decision is supported by substantial evidence when the entire record, including the additional evidence, is considered.

In rejecting the opinions of plaintiff's treating physicians, Dr. Canga and Dr. Heron, the ALJ essentially reasoned that these physicians opined in conclusory fashion that plaintiff was disabled for purposes of the Act, an ultimate determination reserved to the Commissioner. (AT 21-22.) Indeed, the statements of Dr. Canga and Dr. Herron submitted to the ALJ were conclusory, minimally supported, and did not even set forth any meaningful assessment of functional limitations. (AT 513, 518.) As such, the court does not fault the ALJ's decision to give these opinions little weight. See Meanel v. Apfel, 172 F.3d 1111, 1114 (9th Cir. 1999) (treating physician's conclusory, minimally supported opinion rejected); see also Magallanes v. Bowen, 881 F.2d 747, 751 (9th Cir. 1989). However, by contrast, the functional capacity assessments submitted to the Appeals Council do contain concrete functional limitations assessed by Drs. Canga and Heron. (AT 545-48, 550-53.) Although it appears that those assessments may contain somewhat limited clinical findings and reasoning, Drs. Canga and Heron have been treating plaintiff for many years, and the court cannot independently determine whether or not those opinions are consistent with plaintiff's fairly extensive treatment records by these and other physicians, which evidence treatment with oral medication, multiple epidural injections, and ultimately spinal fusion surgery (which was recommended during the relevant period in December 2008). (AT 410.) Instead, the more prudent course of action is to remand the action to the ALJ as the administrative fact finder for consideration of these assessments along with all the other record evidence relevant to the period between August 18, 2006, and December 31, 2008.

To be clear, the court is not instructing the ALJ to credit the opinions of Drs. Canga and Heron on remand. The ALJ may well ultimately find that the retrospective and severe 2012 assessments by Drs. Canga and Heron remain conclusory, are not adequately supported by the weight of the treatment records and other record evidence, and/or do not sufficiently address the August 18, 2006, to December 31, 2008 period, provided that such findings are in accordance with applicable legal standards and supported by substantial evidence in the record as a whole.

On remand, the ALJ shall consider all record evidence, including the Appeals Council evidence, relevant to the period of August 18, 2006, to December 31, 2008. The ALJ may also further develop the record as appropriate. For example, in light of the inherent difficulty in assessing plaintiff's RFC during a specific period now many years in the past, the ALJ should consider having an appropriate expert review all of the medical evidence, including the opinions of plaintiff's treating physicians, and opine as to plaintiff's functional capacity between August 18, 2006, and December 31, 2008. The ALJ may also conduct a supplemental hearing with testimony by such an expert, if deemed necessary.

3. Other Issues

In light of the court's conclusion that the case should be remanded for the further proceedings outlined above, the court declines to reach plaintiff's remaining issues concerning the medical opinion evidence and credibility, which may be reevaluated on remand.7 Importantly, the court expresses no opinion regarding how the evidence should ultimately be weighed upon remand within the confines of the applicable law.

V. CONCLUSION

For the foregoing reasons, IT IS HEREBY ORDERED that:

1. Plaintiff's motion for summary judgment (ECF No. 15) is granted in part and denied in part.

2. The Commissioner's cross-motion for summary judgment (ECF No. 20) is granted in part and denied in part.

3. Plaintiff's request for judicial review of the Commissioner's decision not to reopen plaintiff's prior claim related to the period of October 25, 2002, through August 17, 2006, is dismissed for lack of subject matter jurisdiction.

4. The remainder of the action is remanded for further proceedings consistent with this order pursuant to sentence four of 42 U.S.C. § 405(g).

5. Judgment is entered for plaintiff.

IT IS SO ORDERED.