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Tamayo v. Berryhill

United States District Court, N.D. California

June 6, 2017

PATRICE LEAH TAMAYO, Plaintiff,
v.
NANCY A. BERRYHILL, Defendant.

          ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT; MOTION FOR LEAVE TO FILE AMENDED COMPLAINT Re: Dkt. Nos. 12, 17, 20

          MARIA-ELENA JAMES United States Magistrate Judge

         INTRODUCTION

         Plaintiff Patrice Leah Tamayo ("Plaintiff) brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Nancy A. Berryhill ("Defendant"), the Acting Commissioner of Social Security, denying Plaintiffs claim for disability benefits. Pending before the Court is Plaintiffs Motion for Summary Judgment (PL's Mot. Summ. J. ("MSJ"), Dkt. No. 12) and Defendant's Cross-Motion for Summary Judgment and Motion to Dismiss (Def's MSJ, Dkt. No. 17). Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument.

         In addition, Plaintiff has filed a Motion to File a First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 15(a). Mot. to Am. ("MTA"), Dkt. No. 20. Defendant filed an Opposition (MTA Opp'n, Dkt. No. 21) and Plaintiff filed a Reply (MTA Reply, Dkt. No. 22). The Court previously found this matter suitable for disposition without oral argument. Dkt. No. 23; see Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b). Having considered the parties' positions, the relevant legal authority, and the Administrative Record ("AR"), the Court GRANTS Defendant's Motion to Dismiss, GRANTS Defendant's Motion for Summary Judgment as to the ALJ's finding that Plaintiff is not disabled, and DENIES Plaintiffs Motion for Summary Judgment and Motion to Amend.

         SOCIAL SECURITY ADMINISTRATION PROCEEDINGS

         Plaintiff received Supplemental Security Income (“SSI”) based on disability as a child. AR 67. When she turned eighteen, the Social Security Administration (“SSA”) conducted an age-18 redetermination pursuant to 20 C.F.R. § 416.987[1] to determine her eligibility for disability benefits under the guidelines for adults. AR 24-33. On March 28, 2014, the SSA determined Plaintiff was no longer disabled as of March 3, 2014 under the guidelines for adults. AR 68. Plaintiff filed a request for reconsideration in April 2014. AR 73. In her request, Plaintiff noted she was working on her high school diploma and recently transferred to an adult school under an individualized educational program. Id. Plaintiff also requested continued payment of benefits pending a reconsideration decision. AR 221-24.

         A. The Disability Hearing Officer's Findings

         On July 9, 2014, Disability Hearing Officer (“DHO”) Joselito T. Luna held a disability hearing. AR 88-99. On July 14, 2014, the DHO upheld the SSA's finding that Plaintiff was no longer disabled. AR 72, 88-99, 103-15. The DHO also suggested “[t]his is a [p]otential 301 case because [Plaintiff] states that she continues to be in an Individualized Education Program and attending Adult School to earn her High School Diploma.” AR 115.

         B. The ALJ's Findings

         On July 22, 2014, Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”) to challenge the DHO's findings. AR 132-34; see AR 137-53. ALJ Mary Parnow conducted a hearing on June 4, 2015. AR 41-57. Plaintiff testified in person at the hearing and was represented by counsel, Vanessa Leonardo. The ALJ also heard testimony from Vocational Expert (“VE”) Nancy Rynd.

         The regulations promulgated by the Commissioner of Social Security provide for a five-step sequential analysis to determine whether a Social Security claimant is disabled.[2] 20 C.F.R. § 404.1520. The sequential inquiry is terminated when “a question is answered affirmatively or negatively in such a way that a decision can be made that a claimant is or is not disabled.” Pitzer v. Sullivan, 908 F.2d 502, 504 (9th Cir. 1990). During the first four steps of this sequential inquiry, the claimant bears the burden of proof to demonstrate disability. Valentine v. Comm'r Soc. Sec. Admin., 574 F.3d 685, 689 (9th Cir. 2009). At step five, the burden shifts to the Commissioner “to show that the claimant can do other kinds of work.” Id. (quoting Embrey v. Bowen, 849 F.2d 418, 422 (9th Cir. 1988)).

         The ALJ must first determine whether the claimant is performing “substantial gainful activity, ” which would mandate that the claimant be found not disabled regardless of medical condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). As this step does not apply to redetermining disability at age eighteen, the ALJ did not consider whether Plaintiff is performing substantial gainful activity. AR 25 (citing 20 C.F.R. § 416.987(b)).

         At step two, the ALJ must determine, based on medical findings, whether the claimant has a “severe” impairment or combination of impairments as defined by the Social Security Act. 20 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe impairments: major depressive disorder, recurrent, severe with psychotic features in remission; and an anxiety disorder. AR 26-27. Although Plaintiff also alleged disability on the basis of flat feet, back and leg pains, knee impairment, and mobility issues, the ALJ found Plaintiff failed to show she had any severe musculoskeletal impairment. AR 26. The ALJ also rejected Plaintiff's allegation of disability on the basis of acid reflux. AR 27.

         If the ALJ determines that the claimant has a severe impairment, she proceeds to the third step, where she must determine whether the claimant has an impairment or combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (the “Listing of Impairments”). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant's impairment either meets the listed criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets the listings. AR 27-28.

         Before proceeding to step four, the ALJ must determine the claimant's Residual Function Capacity (“RFC”). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work setting, despite mental or physical limitations caused by impairments or related symptoms. 20 C.F.R. § 404.1545(a)(1). In assessing an individual's RFC, the ALJ must consider all of the claimant's medically determinable impairments, including the medically determinable impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that since March 3, 2014, Plaintiff has had the RFC to perform a full range of work at all exertional levels but was non-exertionally limited to simple, repetitive tasks with occasional contact with the public and frequent contact with coworkers and supervisors. AR 28.

         The fourth step of the evaluation process requires that the ALJ determine whether the claimant's RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f). Here, the ALJ determined that Plaintiff had no past relevant work. AR 31.

         In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there are other jobs existing in significant numbers in the national economy which the claimant can perform consistent with the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g); 404.1560(c). The Commissioner can meet this burden by relying on the testimony of a VE or by reference to the Medical-Vocational Guidelines at 20 C.F.R. Part 404, Subpt. P, App. 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, based on the testimony of the VE; Plaintiff's age, education, work experience; and RFC, the ALJ determined Plaintiff could perform work as a photocopy machine operator, a marker, and an office helper, and that each of these positions existed in significant numbers in the national economy. AR 32.

         C.The ALJ's Decision and Plaintiff's Appeal

         On September 9, 2015, the ALJ issued an unfavorable decision finding Plaintiff was no longer disabled as of March 3, 2014, and she had not become disabled since that date. AR 21-33. The ALJ did not address the DHO's note that Plaintiff was a “[p]otential Section 301 case.” See AR 21-40. Plaintiff requested review of the ALJ's decision on November 6, 2015. AR 15-17. The Appeals Council declined Plaintiff's request for review on February 22, 2016. AR 1-6.

         Plaintiff, then pro se, commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). See Compl., Dkt. No. 1. She obtained counsel thereafter. Dkt. No. 11. On September 1, 2016, Plaintiff filed a Motion for Summary Judgment. Dkt. No. 12. On November 11, 2016, Defendant filed a Cross-Motion for Summary Judgment and Motion to Dismiss. Dkt. No. 17. After she filed her Reply to Defendant's Motion for Summary Judgment (see MSJ Reply, Dkt. No. 18), Plaintiff requested leave to file a proposed FAC, in which she asserts three claims for (1) ...


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