United States District Court, N.D. California, San Jose Division
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S MOTION FOR SUMMARY
JUDGMENT [Re: ECF 15]
LAB SON FREEMAN, United States District Judge
Terree Summer (“Summer”) appeals from a final
decision of Defendant Commissioner of Social Security,
denying her application for a period of disability and
disability benefits under Title II of the Social Security
Act. Before the Court are the parties' cross-motions for
summary judgment, which have been fully briefed. Upon
consideration of the briefing submitted and for the reasons
set forth below, the Court DENIES Plaintiff's motion and
GRANTS Defendant's motion.
a United States citizen, was born on September 27, 1956.
Admin. R. (“AR”) 64, 149. Summer has held a
variety of jobs including District Director for U.S.
Congress, Vice President of Economic Development for the
Chamber of Commerce, and most recently Director of
Entrepreneurial Services at Arizona State University.
Id. at 40. On June 4, 2012, Summer filed an
application for a period of disability and disability
insurance benefits beginning April 26, 2010. Id. at
20. Summer filed her initial claim for disability resulting
from the following conditions: rheumatoid arthritis
(“RA”), asthma, Grave's Disease, irritable
bowel syndrome (“IBS”), osteoporosis, recurrent
sinusitis, and a compromised immune system due to RA
medications. Id. at 65. Summer's initial
application was denied on October 9, 2012. Id. at
20. Summer filed for reconsideration on November 30, 2012,
which was later denied on July 16, 2013. Id. at 20,
99. On July 25, 2013, Summer requested a hearing before an
administrative law judge (“ALJ”), which was
granted. Id. at 103-104. At the hearing held on June
17, 2014, ALJ Brenton L. Rogozen heard testimony from an
impartial vocational expert, Victoria Rei, and from Summer
herself. Id. at 20. On September 15, 2014, ALJ
Rogozen issued a written decision finding Summer not disabled
and thus not entitled to benefits. Id. at 20-35. The
ALJ's decision was affirmed by the Appeals Council on
February 22, 2016, making the ALJ's decision the final
decision of the Commissioner of Social Security. Id.
at 1-4. Summer now seeks judicial review of the denial of
filed a motion for summary judgment on September 13, 2016.
Pl.'s Mot. Summ. J. (“Pl.'s Mot.”), ECF
15. Both parties stipulated to two separate extensions of
time in order for Defendant to file a motion for summary
judgment. Stip. & Order First Extension for Def.'s
Mot. for Summ. J.; Stip. & Order Second Extension for
Def.'s Mot. for Summ. J.; ECF 17, 19. On November 9,
2016, the Court approved both extensions of time, and the
ultimate due date for Defendant's motion for summary
judgment was November 22, 2016. Id. When Defendant
did not file the motion on time, Summer moved for default
judgment. ECF 23. In the order denying the motion for default
judgment, the Court stated that the motion for summary
judgment was deemed submitted without opposition. ECF 24.
five and a half months late, on May 9, 2017, Defendant filed
a notice, motion, and memorandum in support of cross-motion
for summary judgment and in opposition to Summer's motion
for summary judgment. Def.'s Mot. for Summ. J
(“Opp'n”), ECF 26. In filing this motion,
Defendant did not explain any reason for why the filing was
late. Id. On May 23, 2017, Summer filed a reply
brief. Reply, ECF 27.
Standard of Review
courts “have power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). However, “a
federal court's review of Social Security determinations
is quite limited.” Brown-Hunter v. Colvin, 806
F.3d 487, 492 (9th Cir. 2015). Federal courts
“‘leave it to the ALJ to determine credibility,
resolve conflicts in the testimony, and resolve ambiguities
in the record.'” Id. (quoting
Treichler v. Comm'r of Soc. Sec. Admin., 775
F.3d 1090, 1098 (9th Cir. 2014)).
“will disturb the Commissioner's decision to deny
benefits only if it is not supported by substantial evidence
or is based on legal error.” Brown-Hunter, 806
F.3d at 492 (internal quotation marks and citation omitted).
“Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion, and must be more than a mere scintilla, but may
be less than a preponderance.” Rounds v. Comm'r
of Soc. Sec. Admin., 807 F.3d 996, 1002 (9th Cir. 2015)
(internal quotation marks and citations omitted). A court
“must consider the evidence as a whole, weighing both
the evidence that supports and the evidence that detracts
from the Commissioner's conclusion.” Id.
(internal quotation marks and citation omitted). If the
evidence is susceptible to more than one rational
interpretation, the ALJ's findings must be upheld if
supported by reasonable inferences drawn from the record.
even when the ALJ commits legal error, the ALJ's decision
will be upheld so long as the error is harmless.
Brown-Hunter, 806 F.3d at 492. However, “[a]
reviewing court may not make independent findings based on
the evidence before the ALJ to conclude that the ALJ's
error was harmless.” Id. The court is
“constrained to review the reasons the ALJ
Standard for Determining Disability
benefits are available under Title II of the Social Security
Act when an eligible claimant is unable “to engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be
expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12
months.” 42 U.S.C. § 423(d)(1)(A).
determine whether a claimant is disabled, an ALJ is required
to employ a five-step sequential analysis, determining: (1)
whether the claimant is doing substantial gainful activity;
(2) whether the claimant has a severe medically determinable
physical or mental impairment or combination of impairments
that has lasted for more than 12 months; (3) whether the
impairment meets or equals one of the listings in the
regulations; (4) whether, given the claimant's residual
functional capacity, the claimant can still do his or her
past relevant work; and (5) whether the claimant can make an
adjustment to other work.” Ghanim v. Colvin,
763 F.3d 1154, 1160 (9th Cir. 2014) (internal quotation marks
and citations omitted). The residual functional capacity
(“RFC”) referenced at step four is what a
claimant can still do despite his or her limitations.
Id. at 1160 n.5. “The burden of proof is on
the claimant at steps one through four, but shifts to the
Commissioner at step five.” Bray v. Comm'r of
Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009).
The Court will Consider the Commissioner's Late
Opposition & Cross-Motion and Amends its
Prior Order in Part.
turning to the parties' briefing on the motions for
summary judgment, the Court must decide whether to consider
Defendant's late-filed cross-motion and opposition to
Summer's motion for summary judgment. The Court construes
the filing of Defendant's cross-motion for summary
judgment and opposition to Summer's motion for summary
judgment also as a motion to extend the time under Fed. R.
Civ. Proc. 6(b). Fed. R. Civ. Proc. 6(b)(1)(B) governs
extensions of time after the relevant deadline has expired
and states, in pertinent part:
(b) Extending Time.
(1) In General. When an act may or must be done within a
specified time, the court may, for good cause, extend the
time: . . .
(B) on motion made after the time has expired if the party
failed to act because of excusable neglect.
this rule, when a motion to extend time is filed “after
the time has expired, ” the court may extend the time
upon a showing of “good cause” and
“excusable neglect.” Fed.R.Civ.P. 6(b)(1)(B).
“To determine whether a party's failure to meet a
deadline constitutes ‘excusable neglect, ' courts
must apply a four-factor equitable test, examining: (1) the
danger of prejudice to the opposing party; (2) the length of
the delay and its potential impact on the proceedings; (3)
the reason for the delay; and (4) whether the movant acted in
good faith.” Ahanc ...