United States District Court, N.D. California
ORDER RE: CROSS-MOTIONS FOR SUMMARY JUDGMENT; MOTION
FOR LEAVE TO FILE AMENDED COMPLAINT Re: Dkt. Nos. 12, 17,
MARIA-ELENA JAMES United States Magistrate Judge
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.
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.
SECURITY ADMINISTRATION PROCEEDINGS
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 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
The Disability Hearing Officer's Findings
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.
The ALJ's Findings
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
regulations promulgated by the Commissioner of Social
Security provide for a five-step sequential analysis to
determine whether a Social Security claimant is
disabled. 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
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)).
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.
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.
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.
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.
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.
ALJ's Decision and Plaintiff's Appeal
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
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) ...