United States District Court, N.D. California
BRENDA A. HARRIS, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security, Defendant.
ORDER GRANTING DEFENDANT'S CROSS-MOTION FOR
SUMMARY JUDGMENT RE: DKT. NOS. 24, 29
C. SPERO Chief Magistrate Judge
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
Harris's Application for Benefits
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.
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.
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.
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.
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.
The ALJ's Decision
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
Id. at 22 (citations omitted).
Harris's Request for Review by the Administration's
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,
[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.
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.
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.
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. ¶
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.
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.
the letter in which Wyatt moved to amend Harris's
disability onset date, see AR at 113, Harris
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