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Plummer v. Berryhill

United States District Court, E.D. California

July 11, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”), denying her application for disability insurance benefits (“DIB”) under Title II of the Social Security Act, 42 U.S.C. §§ 401-34, and for Supplemental Security Income (“SSI”) under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 1381-1383f.[1]

         For the reasons that follow, the court will DENY plaintiff's motion for summary judgment, and GRANT the Commissioner's cross-motion for summary judgment.


         Plaintiff applied for disability insurance benefits (“DIB”) and for supplemental security income (“SSI”) on September 26, 2012. Administrative Record (“AR”) 120-21.[2] The disability onset date for both applications was alleged to be August 27, 2010. Id. Plaintiff was insured for DIB through December 31, 2012. AR 257. The applications were disapproved initially and on reconsideration. AR 120-21, 168-80. On July 22, 2014, ALJ Dante Alegre presided over the hearing on plaintiff's challenge to the disapprovals. AR 46-67 (transcript). Plaintiff was present and testified at the hearing. AR 48. Plaintiff was represented by Ms. Svetlana Kumansky at the hearing. AR 48. Susan Creighton-Clavel, Vocational Expert, also testified. AR 48. An interpreter was present to assist plaintiff as necessary. Id.

         On October 23, 2014, the ALJ issued an unfavorable decision, finding plaintiff “not disabled” under Sections 216(i) and 223(d) of Title II of the Act, 42 U.S.C. §§ 416(i), 423(d), and Section 1614(a)(3)(A) of Title XVI of the Act, 42 U.S.C. § 1382c(a)(3)(A). AR 9-21 (decision), 22-25 (exhibit list). On October 23, 2014, the Appeals Council denied plaintiff's request for review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. AR 1-5.

         Plaintiff filed this action on April 12, 2016. ECF No. 1; see 42 U.S.C. §§ 405(g), 1383c(3). The parties consented to the jurisdiction of the magistrate judge. ECF Nos. 1, 7. The parties' cross-motions for summary judgment, based upon the Administrative Record filed by the Commissioner, have been fully briefed. ECF Nos. 14 (plaintiff's summary judgment motion), 24 (Commissioner's summary judgment motion), 26 (plaintiff's reply).

         Plaintiff previously applied for DIB and SSI in July 2008; an ALJ denied plaintiff's prior application on August 26, 2010. AR 80-81.


         Plaintiff was born on July 4, 1968, and accordingly was 42 years old on the alleged disability onset date, making Ms. Plummer a “younger person” under the regulations. AR 256; see 20 C.F.R §§ 404.1563(c), 416.963(c). Plaintiff obtained her GED in Russia, and attended adult school in the United States to learn English. AR 52. Plaintiff can communicate in English but was assisted by a translator when she appeared before the ALJ. AR 48.


         “[A] federal court's review of Social Security determinations is quite limited.” Brown-Hunter v. Colvin, 806 F.3d 487, 492 (9th Cir. 2015). The Commissioner's decision that a claimant is not disabled will be upheld “if it is supported by substantial evidence and if the Commissioner applied the correct legal standards.” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1011 (9th Cir. 2003). “‘The findings of the Secretary as to any fact, if supported by substantial evidence, shall be conclusive . . ..'” Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995) (quoting 42 U.S.C. § 405(g)).

         Substantial evidence is “more than a mere scintilla, ” but “may be less than a preponderance.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). “It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted). “While inferences from the record can constitute substantial evidence, only those ‘reasonably drawn from the record' will suffice.” Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006) (citation omitted).

         Although this court cannot substitute its discretion for that of the Commissioner, the court nonetheless must review the record as a whole, “weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion.” Desrosiers v. Secretary of HHS, 846 F.2d 573, 576 (9th Cir. 1988); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985) (“The court must consider both evidence that supports and evidence that detracts from the ALJ's conclusion; it may not affirm simply by isolating a specific quantum of supporting evidence.”).

         “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001). “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld.” Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). However, the court may review only the reasons stated by the ALJ in his decision “and may not affirm the ALJ on a ground upon which he did not rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007); Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003) (“It was error for the district court to affirm the ALJ's credibility decision based on evidence that the ALJ did not discuss”).

         The court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is “clear from the record that an ALJ's error was ‘inconsequential to the ultimate nondisability determination.'” Robbins v. SSA, 466 F.3d 880, 885 (9th Cir. 2006) (quoting Stout v. Commissioner, 454 F.3d 1050, 1055 (9th Cir. 2006)); see also Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         “The principles of res judicata apply to administrative decisions, although the doctrine is applied less rigidly to administrative proceedings than to judicial proceedings.” Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988). The ALJ's or Appeals Council's finding of non-disability, once it becomes the final decision of the Commissioner, is given “res judicata effect” as to the period of disability covered by the decision, so long as no “manifest injustice” would result. Lyle v. Secretary of Health & Human Services, 700 F.2d 566, 568 & 568 n.2 (9th Cir. 1983). However, for any subsequent, un-adjudicated period of alleged disability, an ALJ's finding that a claimant is not disabled only “create[s] a presumption that [the claimant] continued to be able to work” after the adjudicated period. Lester v. Chater, 81 F.3d 821, 827-28 (9th Cir. 1996) (emphasis added). “The claimant, in order to overcome the presumption of continuing nondisability arising from the first administrative law judge's findings of nondisability, must prove ‘changed circumstances' indicating a greater disability.” Chavez, 844 F.2d at 693 (quoting Taylor v. Heckler, 765 F.2d 872, 875 (9th Cir. 1985)); Light v. Soc. Sec. Admin., 119 F.3d 789, 791-92 (9th Cir. 1997) (“[t]he claimant may overcome the presumption by proving the existence of ‘changed circumstances' that would establish disability' ”) (some internal quotation marks omitted) (quoting Hammock v. Bowen, 879 F.2d 498, 501 (9th Cir. 1989)).


         Disability Insurance Benefits and Supplemental Security Income are available for every eligible individual who is “disabled.” 42 U.S.C. §§ 423(a)(1)(E) (DIB), 1381a (SSI). Plaintiff is “disabled” if she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment. Bowen v. Yuckert, 482 U.S. 137, 140 (1987) (citing identically worded provisions of 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A)).

         The Commissioner uses a five-step sequential evaluation process to determine whether an applicant is disabled and entitled to benefits. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003) (setting forth the “five-step sequential evaluation process to determine disability” under Title II and Title XVI). The following summarizes the sequential evaluation:

Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is not disabled. If ...

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