United States District Court, N.D. California
ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT; DENYING DEFENDANT'S CROSS-MOTION FOR SUMMARY
JUDGMENT RE: DKT. NOS. 22, 26
M. CHESNEY United States District Judge.
the Court is plaintiff Tina Marie Kee's ("Kee")
motion for summary judgment, filed April 30, 2017, by which
Kee seeks judicial review of a decision issued March 17,
2015, by an administrative law judge ("ALJ"),
denying her claim for Social Security benefits. Also before
the Court is the cross-motion for summary judgment, filed
June 20, 2017, by defendant Nancy A. Berryhill, Acting
Commissioner of Social Security ("Commissioner").
Pursuant to Civil Local Rule 16-5, the motions have been
submitted on the papers without oral argument. Having read
and considered the parties' respective written
submissions, the Court rules as follows.
2012, Kee filed an application for Supplemental Security
Income ("SSI") benefits, alleging disability
beginning April 11, 2011, based on numerous mental and
physical conditions. On November 14, 2012, the Social
Security Administration ("SSA") denied the
application and, on August 7, 2013, denied Kee's request
for reconsideration. On September 17, 2013, Kee requested a
hearing before an ALJ, and, on December 10, 2014, the ALJ
conducted a hearing, at which time Kee testified, as did a
vocational expert ("VE").
March 17, 2015, the ALJ issued her decision, finding, based
on the five-step sequential evaluation process set forth in
the Code of Federal Regulations,  Kee was not disabled. At
step one, the ALJ determined Kee had not engaged in
substantial gainful activity since her application date. At
step two, the ALJ found Kee had four "severe
impairments, " namely, "depression, post-traumatic
stress disorder ('PTSD'), borderline intellectual
functioning, and lumbar spine degenerative disc
disease." (See Certified Administrative Record
("CAR") 26.) At step three, the ALJ determined Kee
did not have an impairment or combination of impairments that
met or equaled a listed impairment,  in particular, Listings
1.04, 12.04, 12.05, 12.06, and 12.08, which listings pertain,
respectively, to "disorders of the spine, "
including degenerative disc disease, see 20 C.F.R.
pt. 404, subpt. P, app. 1, § 104, "affective
disorders, " including depression, see Id.
§ 12.04, "mental retardation, " see
id. § 12.05, "anxiety-related disorders,
" see id. §12.06, and "personality
disorders, " see id. § 12.08.
continuing to step four, the ALJ determined Kee's
"residual functional capacity"
("RFC") and, in that regard, found Kee could
perform, subject to certain limitations, "medium work as
defined in 20 CFR § 416.967(c)." (See CAR
At step four, the ALJ, relying on testimony provided by the
VE, found Kee was "capable of performing past relevant
work as a personal attendant." (See id. 35.)
Based thereon, the ALJ denied Kee's application at the
Kee requested the Appeals Council ("AC") review the
ALJ's decision and submitted new evidence, namely,
medical records from March 21, 2014, to March 16, 2015, and a
medical source statement dated April 29, 2015. On July 29,
2016, the AC denied review, explaining it had considered both
"the reasons [Kee] disagree[d] with the [ALJ's]
decision" and the above-referenced medical records, and
that "this information [did] not provide a basis for
changing the [ALJ's] decision" (see id.).
The AC did not consider the medical source statement, which
was a mental impairment questionnaire, because it found the
questionnaire "[did] not affect the decision about
whether [Kee was] disabled beginning on or before March 17,
2015" (see id.), the date of the ALJ's
September 8, 2016, Kee filed the instant petition for review.
ALJ's disability determination should be upheld unless it
contains legal error or is not supported by substantial
evidence." Garrison v. Colvin, 759 F.3d 995,
1009 (9th Cir. 2014). “Substantial evidence means more
than a mere scintilla but less than a preponderance; it is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Andrews v.
Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995). The
reviewing court must consider "the administrative record
as a whole, weighing both the evidence that supports and that
which detracts from the ALJ's conclusion, " see
id., and "must uphold the ALJ's decision where
the evidence is susceptible to more than one rational
interpretation, " see id. at 1039-40. Where the
AC "considers new evidence in deciding whether to review
a decision of the ALJ, that evidence becomes part of the
administrative record, which the district court must consider
when reviewing the Commissioner's final decision for
substantial evidence." Burrell v. Colvin, 775
F.3d 1133, 1136 (9th Cir. 2014) (internal quotation,
citation, and alterations omitted).
ALJ is responsible for determining credibility, resolving
conflicts in medical testimony, and . . . resolving
ambiguities." Andrews, 53 F.3d at 1039. Where
the claimant "has presented evidence of an underlying
impairment and the government does not argue that there is
evidence of malingering, [the court] review[s] the ALJ's
rejection of [the claimant's] testimony for specific,
clear and convincing reasons." Burrell, 775
F.3d at 1136 (internal quotation and citation omitted). In
addition, where other doctors' opinions contradict the
opinion of the claimant's treating physician, the court
"review[s] the ALJ's rejection of [the treating
physician's] opinion for specific and legitimate reasons
that are supported by substantial evidence." See
Burrell, 775 F.3d at 1137 (internal quotation and
citation omitted). The court "review[s] only the reasons
provided by the ALJ in the disability determination and may
not affirm the ALJ on a ground upon which [the ALJ] did not
rely." See Garrison, 759 F.3d at 1010.
when the ALJ commits legal error, " however, the
reviewing court must "uphold the decision where that
error is harmless." See Brown-Hunter v. Colvin,
806 F.3d 487, 492 (9th Cir. 2015) (internal quotation,
citation, and alteration omitted). "An error is harmless
only if it is inconsequential to the ultimate nondisability
determination" or, where the error is based on a lack of
specificity, if "the agency's path may reasonably be
discerned." See id. at 494 (internal quotation
and citation omitted).
motion for summary judgment, Kee contends, inter
alia, that the ALJ erred by not finding her disabled at
step three of the disability determination. In particular,
Kee argues that, pursuant to "Listing 12.05C, " she
is "per se disabled based on her IQ of 67 and
the presence of several other impairments which the ALJ
found" at step two (see Pl.'s Mot. for
Summ. J. ("MSJ") at 8:2-3) and, consequently, that
the instant case "must be remanded . . . for immediate
payment of ...