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Harris v. Berryhill

United States District Court, N.D. California

March 15, 2017

BRENDA A. HARRIS, Plaintiff,
NANCY A. BERRYHILL, [1] Acting Commissioner of Social Security, Defendant.


          JOSEPH C. SPERO Chief Magistrate Judge


         Plaintiff Brenda A. Harris brought this action against the Commissioner of the Social Security Administration. Although an Administrative Law Judge (“ALJ”) decided that Harris was disabled and entitled to benefits, Harris filed this action seeking review of the disability onset date. When she first applied for benefits, Harris alleged a disability onset date of January 1, 2011. She claims that her attorney amended that date without obtaining her permission and has filed a Motion for Summary Judgment (the “Motion”). In the Motion, Harris contends that the ALJ erroneously decided that she became disabled on August 25, 2011, the amended onset date. In the alternative, Harris contends that the Court should remand her case for consideration of new evidence regarding the alleged impropriety of the onset date's amendment. The Commissioner opposes Harris's motion and has filed a Cross-Motion for Summary Judgment (the “Opposition”). The Commissioner contends that the ALJ did not err and that Harris's new evidence does not support a remand. For the reasons stated below, the Court DENIES Harris's Motion for Summary Judgment and GRANTS the Commissioner's Cross-Motion for Summary Judgment.[2]


         A. Harris's Application for Benefits

         After first applying protectively on March 14, 2011, Harris submitted an application for disability insurance benefits on August 10, 2011. See Administrative Record (“AR, ” dkt. no. 19) at 22, 95-97. Harris alleged in the application that, on January 1, 2011, she had become unable to work due to a disability and had remained disabled since then. Id. at 95. She also alleged that she had last worked on January 1, 2011, and did not plan to resume working. Id. at 96. In her disability report, Harris further alleged that that she suffers from several conditions that limit her ability to work, including arthritis, fibromyalgia, left leg and knee problems, back problems, migraines, depression, stress, anxiety, and mood disorders. See Id. at 127.

         The Social Security Administration (the “Administration”) denied Harris's application on November 18, 2011. See Id. at 27. Shortly after the denial, Harris hired an attorney, John R. Heard of Heard & Smith, as her representative for her disability claim. See Id. at 52-53. Heard then requested reconsideration of Harris's application on her behalf. See Id. at 47, 55. The Administration denied the application after reconsideration on May 22, 2012. See Id. at 47. About three weeks later, Harris requested a hearing before an ALJ. See Id. at 59-60.

         On March 5, 2013, the Administration sent a letter notifying Harris that it had scheduled a hearing for April 12, 2013. See Id. at 68-72. Harris immediately informed the Administration that she had received the notice of her hearing and planned to attend. See Id. at 86.

         In an April 2, 2013, facsimile to Heard regarding Harris's application, an Administration employee stated: “The Judge will grant an OTR on this case set for hearing on 4/12/13 conditioned upon an agreement to amend the alleged onset date to 8/25/11.” Id. at 195.

         On April 4, 2013, Kimberly O. Wyatt, an attorney at Heard & Smith, sent a letter to the ALJ on Harris's behalf. Id. at 113; see also Id. at 53. In the letter, Wyatt stated:

Ms. Harris has a pending claim for disability insurance benefits. She hereby moves to amend her alleged onset date to August 25, 2011. She has discussed this amendment with her attorney and understands the effects of this amendment.

Id. at 113. The bottom of the letter lists Harris's home and email addresses, and it indicates that Harris would receive a copy of it. Id.

         B. The ALJ's Decision

         Two days before Harris's hearing, the ALJ issued a decision granting Harris's application for disability insurance benefits. See AR at 22-26. In the decision's introduction, the ALJ described the procedural history of Harris's application for benefits and his determination that Harris was disabled under the act:

On March 14, 2011, the claimant protectively applied for a period of disability and Disability Insurance Benefits alleging that she had been disabled and unable to work since January 1, 2011, due to physical and mental impairments. The applications [sic] was denied, initially, and upon administrative reconsideration. The claimant requested a hearing before an Administrative Law Judge. However, the evidence of record supports a fully favorable decision. Therefore, no hearing has been held. The claimant was represented by John R. Heard, an attorney. [¶] The claimant proposed an amended onset disability date of August 25, 2011. I now accept this as the date which the claimant became disabled under the Social Security Laws and Regulations.

Id. at 22 (citations omitted).

         C. Harris's Request for Review by the Administration's Appeals Council

         On July 22, 2013, Harris requested that the Social Security Appeals Council review the ALJ's decision finding her disability onset date was August 25, 2011. AR at 196-97. In her request, Harris stated:

[O]n April 12, 2012 I was asked by my lawyer Kimberly Wyatt if I consented to take the amended decision, and I would not have to go to crt [sic]. But the deal was I would loose [sic] $7, 670.00 which I [sic] would be 5 months different I believe. So after that I did question her about the decision. But in the long run the Social Security office took my back pay which was over $19, 000. . . . These 6 months would have paid off the debt if it is found truthful that it was my fault and not the Social Security office in Richmond, Calif[ornia]. . . . That is why I do not agree to the Judge's decision and the lawyer I had Ms. Wyatt not a good lawyer and it was played down.

Id. at 197.

         The Appeals Council “found no reason under [the Administration's] rules to review the Administrative Law Judge's decision” and denied Harris's request for review. Id. at 9-11. The Appeals Council further explained that it had considered the reasons that Harris disagreed with the ALJ's decision and found that they did not provide a basis for changing the ALJ's decision. Id. at 9-10.

         D. Harris's Declaration

         In support of her Motion, Harris submitted a declaration. Decl. of Brenda Harris (“Harris Decl., ” dkt. no. 27). In the declaration, Harris attests that she has been physically disabled for 30 years. Id. ¶¶ 3, 5. Her disability stems from rheumatoid arthritis symptoms. Id. ¶ 3. Those symptoms began after she injured her knee in a car accident. Id. The symptoms cause her pain and limit her mobility. Id. Sometime around 1993 or 1994, Harris also started experiencing “ear pain, headaches, gastrointestinal problems, anemia, and overwhelming fatigue.” Id. ¶ 4. She was diagnosed with Lupus and, despite treatment, her symptoms have worsened. Id.

         Even though she has been physically disabled for some time, Harris has been employed throughout her life, often working two jobs at once. Id. ¶ 5. She chose to continue working to support her children and grandchildren. Id. However, in 2011, she became ill, suffered pain, and experienced “anxiety attacks, rheumatoid arthritis, fibromyalgia, depression, stress migraines, left leg and knee problems from the car accident, back problems (herniated disc), anxiety, acid reflux, and insomnia.” Id. In 2012, after she stopped working, she was also diagnosed with a hypothyroid condition. Id. ¶ 5.

         Harris's health problems prevented her from continuing to work, and she left her job in January 2011. Id. ¶¶ 5-6. On March 14, 2011, she applied for benefits, which were denied on November 21, 2011. Id. ¶ 6. After that denial, Harris hired Wyatt as her attorney to represent her in disability proceedings. Id. ¶ 7.

         The Administration also denied Harris's application on reconsideration, after which Wyatt represented Harris in a request for review by an ALJ. Id. A hearing before an ALJ was set for April 12, 2013. Id. Wyatt informed Harris that the hearing was important and instructed Harris not to attend it because it would increase the likelihood that the ALJ would grant Harris disability benefits. Id. Wyatt provided Harris a form indicating that Harris would not attend the hearing. Id. Harris “agreed not to appear if it was more likely for me to get my benefits, ” signed the form, and returned the form to Wyatt. Id.

         Addressing the letter in which Wyatt moved to amend Harris's disability onset date, see AR at 113, Harris attests:

I never agreed to amending that date. I did not even know what an onset date was at that time. My attorney never told me. It says that I, the claimant, proposed changing my disability onset date to August 25, 2011 and that I understood the effects of this amendment. This is not true. I have been in pain for many years but I did not apply for disability benefits until I truly needed them. I would never ...

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