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Newett v. Colvin

United States District Court, N.D. California, Eureka Division

September 24, 2014

DIANA NEWETT, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

ORDER RE CROSS MOTIONS FOR SUMMARY JUDGMENT DOC. NOS. 23, 26

NANDOR J. VADAS, Magistrate Judge.

Diana Newett seeks judicial review of an administrative law judge ("ALJ") decision denying her application for supplemental security income ("SSI") benefits under Title XVI of the Social Security Act. (Doc. No. 12.) Newett's request for review of the ALJ's decision was denied by the Appeals Council. (Administrative Record ("AR") 1-7.) The decision thus is the "final decision" of the Commissioner of Social Security, which this court may review. See 42 U.S.C. §§ 405(g), 1383(c)(3). Both parties have consented to the jurisdiction of a magistrate judge. (Docs. Nos. 4, 9.) The court therefore may decide the parties' cross-motions for summary judgment. See 28 U.S.C. § 636(c). For the reasons stated below, the court will grant Plaintiff's motion for summary judgment in part and grant Defendant's motion for summary judgment in part.

LEGAL STANDARDS

The Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g). A district court has a limited scope of review and can only set aside a denial of benefits if it is not supported by substantial evidence or if it is based on legal error. Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). Substantial evidence is "more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Sandgathe v. Chater, 108 F.3d 978, 979 (9th Cir. 1997). "In determining whether the Commissioner's findings are supported by substantial evidence, " a district court must review the administrative record as a whole, considering "both the evidence that supports and the evidence that detracts from the Commissioner's conclusion." Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1998). The ALJ is "responsible for determining credibility, resolving conflict in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (citation omitted). The Commissioner's conclusion is upheld where evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). If the evidence can support either outcome, the court may not substitute its judgment for that of the Commissioner. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992).

DISCUSSION

The Five Step Sequential Analysis for Determining Disability

A person filing a claim for social security disability benefits ("the claimant") must show that he has the "inability to do any substantial gainful activity by reason of any medically determinable physical or mental impairment" which has lasted or is expected to last for twelve or more months. 20 C.F.R. §§ 416.920(a)(4)(ii), 416.909. The ALJ must consider all evidence in the claimant's case record to determine disability (Id. § 416.920(a)(3)), and must use a five-step sequential evaluation to determine whether the claimant is disabled (Id. § 416.920). "[T]he ALJ has a special duty to fully and fairly develop the record and to assure that the claimant's interests are considered." Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983). Here, the ALJ evaluated Plaintiff's application for benefits under the required five-step sequential evaluation. (AR 23-34.)

At Step One, the claimant bears the burden of showing she has not been engaged in "substantial gainful activity" since the alleged date the claimant became disabled. 20 C.F.R. § 416.920(b). If the claimant has worked and the work is found to be substantial gainful activity, the claimant will be found not disabled. Id. The ALJ found that Plaintiff had not been engaged in substantial gainful activity since May 6, 2010, the application date. (AR 22.) Plaintiff does not contest this finding.

At Step Two, the claimant bears the burden of showing that she has a medically severe impairment or combination of impairments. 20 C.F.R. § 416.920(c). An impairment is "severe" unless it is a "slight abnormality" that has "no more than a minimal effect on a person's ability to work." Delgado v. Comm'r of Soc. Sec. Admin., 500 Fed.Appx. 570 (9th Cir. 2012); see also Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) ("[T]he step-two inquiry is a de minimis screening device to dispose of groundless claims"). The ALJ found that Plaintiff had several severe impairments: an affective disorder, sleep apnea, chronic lower back pain, morbid obesity, and asthma. (AR 22.)

At Step Three, the ALJ compares the claimant's impairments to the impairments listed in appendix 1 to subpart P of part 404. 20 C.F.R. § 416.920(d). The claimant bears the burden of showing his impairments meet or equal an impairment in the listing. Id. If the claimant is successful, a disability is presumed and benefits are awarded. Id. If the claimant is unsuccessful, the ALJ assesses the claimant's residual functional capacity ("RFC") and proceeds to Step Four. Id . § 416.920(e). Here, the ALJ found that Plaintiff did not have an impairment or condition of impairments that met or medically equaled the severity of one of the listed impairments. (AR 22-25.) The ALJ proceeded to assess Plaintiff's RFC and found that she had the RFC to perform light work, except that she should not climb ladders, ropes or scaffolding. (AR 26.)

At Step Four, the claimant bears the burden of showing she does not have sufficient RFC to perform past relevant work due to her impairments and/or limitations. Id. § 416.920(e). The ALJ found that Plainitff had no past relevant work. (AR 39.) Plaintiff does not challenge this finding.

At Step Five, the ALJ bears the burden of establishing that considering her RFC, age, education and work experience, the claimant is able to do other work that exists in significant numbers in the national or local economy. AR 30. § 416.920(g). Based on the testimony of a vocational expert, the ALJ found that Plaintiff could perform such other work. (AR 30-31.)

Appeals Council's Review of New Evidence Generated After ALJ Decision

Plaintiff contends that the Appeals Council committed harmful legal error by failing to review new and material evidence obtained after the ALJ's decision but related to the period before the ALJ's decision. She relies on 20 C.F.R. Section 404.970(b), which provides:

If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.

Plaintiff's hearing before the ALJ was held on December 12, 2011. Seven days later, Plaintiff was struck by a car while she was walking in a parking lot. (AR 846.) The ALJ issued an unfavorable decision dated January 25, 2012. (AR 31.) Plaintiff filed her Request for Review of the Hearing Decision with the Appeals Council on March 26, 2012. (AR 1-6.)

On June 19, 2012, after appropriate extensions, a representative brief was submitted to the Appeals Council. (AR 259-262.) On that same date, additional medical records regarding the injuries sustained in the December 19, 2011 incident were also filed.[1] Plaintiff states that the records documented medical treatment from November 30, 2011, through May 10, 2012. (Doc. 23, Plaintiff's Motion for Summary Judgment, 7:20-21.)

On May 14, 2013, the Appeals Council issued a Notice of Appeals Council Action denying Plantiff's request for review. The Notice provided in part as follows:

In looking at your case, we considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Council.
We considered whether the Administrative Law Judge's action, findings, or conclusion is contrary to the weight of the evidence in the record. We found that this information does not provide a basis ...

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