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Kee v. Berryhill

United States District Court, N.D. California

April 5, 2018

TINA MARIE KEE, Plaintiff,


          MAXINE M. CHESNEY United States District Judge.

         Before 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.


         In June 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").

         On 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, [1] 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, [2] 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.

         Before continuing to step four, the ALJ determined Kee's "residual functional capacity" ("RFC")[3] and, in that regard, found Kee could perform, subject to certain limitations, "medium work as defined in 20 CFR § 416.967(c)." (See CAR 29.)[4] 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 fourth step.[5]

         Subsequently, 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 decision.

         On September 8, 2016, Kee filed the instant petition for review.


         "An 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).

         "The 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.

         "Even 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).


         In her 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 ...

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