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Penny-Baten v. Commissioner of Social Security

United States District Court, N.D. California

July 2, 2019

ANN PENNY-BATEN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT, AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S CROSS-MOTION FOR SUMMARY JUDGMENT DOCKET NOS. 20-21

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE.

         In February 2015, Plaintiff Ann Penny-Batten filed both a Title II application for disability insurance benefits and a Title XVI application for supplemental security income (“SSI”). See AR 527-28, 529-37 (applications). Her applications were initially denied in August 2015, see AR 484-87 (notice), and then, upon reconsideration, in January 2016. See AR 489-93 (notice). Ms. Penny-Batten subsequently requested a hearing before an administrative law judge (“ALJ”). See AR 499-500 (request). A hearing was held before ALJ David LaBarre in June 2017. See AR 365-435 (ALJ hearing transcript). On November 15, 2017, ALJ LaBarre issued his decision, concluding that Ms. Penny-Batten was not disabled from November 19, 2003, through the date of his decision.[1] See AR 38 (ALJ decision). Ms. Penny-Batten asked that the Appeals Council for the Social Security Administration review the ALJ's decision. See AR 524-26 (request). On July 20, 2018, the Appeals Council held that there was no basis to change the ALJ's decision - even taking into account new evidence submitted by Ms. Penny-Batten - and therefore denied the request for review. See AR 1-2 (notice) (stating, inter alia, that the new evidence “does not show a reasonable probability that it would change the outcome of the decision”). Ms. Penny-Batten then initiated the instant action.

         Ms. Penny-Batten has exhausted her administrative remedies with respect to her claims for disability insurance benefits and SSI. This Court has jurisdiction to review pursuant to 42 U.S.C. § 405(g). Ms. Penny-Batten has moved for summary judgment, seeking a reversal of the ALJ and Appeals Council's decisions. The Commissioner has cross-moved for summary judgment. Having considered the parties' briefs and accompanying submissions, including but not limited to the administrative record, and good cause appearing therefor, the Court hereby GRANTS in part and DENIES in part Ms. Penny-Batten's motion for summary judgment and GRANTS in part and DENIES in part the Commissioner's cross-motion.

         I. FACTUAL & PROCEDURAL BACKGROUND

         When Ms. Penny-Batten initially applied for disability insurance benefits and SSI in 2015, she primarily claimed that she suffered from back pain. See, e.g., AR 484 (notice). However, by the time of the hearing before the ALJ in 2017, Ms. Penny-Batten put at issue not only her back pain but also her vertigo/dizziness, which she stated was a result of kidney problems related to her diabetes. See AR 404-05 (AL hearing transcript).

         ALJ LaBarre rejected Ms. Penny-Batten's claims for disability insurance benefits and SSI, applying the five-step sequential evaluation process provided for by the relevant regulations.

“Step one disqualifies claimants who are engaged in substantial gainful activity from being considered disabled under the regulations. Step two disqualifies those claimants who do not have one or more severe impairments that significantly limit their physical or mental ability to conduct basic work activities. Step three automatically labels as disabled those claimants whose impairment or impairments meet the duration requirement and are listed or equal to those listed in a given appendix. Benefits are awarded at step three if claimants are disabled. Step four disqualifies those remaining claimants whose impairments do not prevent them from doing past relevant work. Step five disqualifies those claimants whose impairments do not prevent them from doing other work, but at this last step the burden of proof shifts from the claimant to the government. Claimants not disqualified by step five are eligible for benefits.”

Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003).

         In the instant case, ALJ LaBarre made the following rulings regarding the five steps.

         At step one, the ALJ found that Ms. Penny-Batten had not engaged in substantial gainful activity since November 19, 2003 (the original alleged onset date). See AR 39 (ALJ decision).

         At step two, the ALJ determined that Ms. Penny-Batten suffered from only one severe impairment, i.e., low back myalgia. See AR 41. The ALJ acknowledged that Ms. Penny-Batten suffered from other impairments as well - including diabetes and vertigo/dizziness - but found that they were not severe. See AR 41. The ALJ noted, inter alia, that Ms. Penny-Batten's treating doctors had not “diagnosed any of the syndromes that can sometimes be associated with diabetes (for example, chronic kidney disease . . .).” AR 41.

         At step three, the ALJ stated that Ms. Penny-Batten did not have an impairment, or a combination of impairments, that met or medically equaled the severity of one of the listed impairments in the appendix. See AR 43.

         At step four, the ALJ concluded that Ms. Penny-Batten had the residual functional capacity (“RFC”) to perform light work, see 20 C.F.R. §§ 404.1567(b), 416.967(b),

except she is able to frequently lift and/or carry ten pounds, can occasionally lift and/or carry twenty pounds, can sit for up to six hours although she must be permitted to stand for five minutes after sitting two hours, can stand or walk a total of six hours, one hour at a time, in an eight-hour workday with normal breaks, should never climb ladders, ropes, or scaffolds, is able to frequently climb ramps or stairs, can occasionally stoop, kneel, crouch, or crawl, and can occasionally balance when on narrow, slippery, or erratically moving services.

         AR 43. Based on this RFC, the ALJ found that Ms. Penny-Batten was capable of performing her past relevant work as a security guard as generally performed and as a ball sorter as actually performed. See AR 50. Accordingly, the ALJ held that Ms. Penny-Batten was not disabled and therefore not entitled to disability insurance benefits or SSI.

         Thereafter, Ms. Penny-Batten asked the Appeals Council to review the ALJ's decision, submitting in support of her request additional evidence related to dizziness, diabetes, and kidney problems. The Appeals Council denied her request for review, stating, inter alia, that the bulk of the new evidence did “not show a reasonable probability that it would change the outcome of the decision.” AR 2 (Appeals Council decision).

         II. DISCUSSION

         A. Le ...


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