United States District Court, S.D. California
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
JUDGE RE: MOTION AND CROSS MOTION FOR SUMMARY JUDGMENT [ECF
NOS. 13 AND 15]
Mitchell D. Dembin, United States Magistrate Judge
Report and Recommendation is submitted to United States
District Judge Larry A. Burns pursuant to 28 U.S.C. §
636(b)(1) and Local Civil Rule 72.1(c) of the United States
District Court for the Southern District of California.
Kimberly C. (“Plaintiff”) filed this action
pursuant to 42 U.S.C. § 405(g) for judicial review of
the final administrative decision of the Commissioner of the
Social Security Administration (“Commissioner”).
(ECF No. 13-1 at 2). The final administrative decision of the
Commissioner denied Plaintiff's application for
Disability Insurance Benefits under Title II of the Social
Security Act (“Title II”) and for Supplemental
Security Income under Title XVI of the Social Security Act
(“Title XVI”). (AR 15).
reasons set forth herein, the Court
RECOMMENDS Plaintiff's Motion for
Summary Judgment be GRANTED IN PART,
Defendant's Cross Motion for Summary Judgment be
DENIED, and that the case be
REMANDED for further proceedings.
was born on May 26, 1962. (AR 570). At the time the instant
application was filed on August 21, 2014, Plaintiff was 52
years-old which categorized her as a person closely
approaching advanced age. 20 C.F.R. §§ 404.1563,
August 21, 2014, Plaintiff protectively filed an application
for a period of Disability Insurance Benefits under Title II.
(AR 15). On August 1, 2014, Plaintiff protectively filed an
application for a period of Supplemental Security Income
under Title XVI. (Id.). The application alleged a
disability beginning February 11, 2013. (Id.). After
her application was denied initially and upon
reconsideration, Plaintiff requested an administrative
hearing before an administrative law judge
(“ALJ”). (Id.). An administrative
hearing was held on May 23, 2017. (Id.). Plaintiff
appeared and was represented by attorney Yong Young. (AR 34).
Testimony was taken from Plaintiff, impartial medical expert
Arnold Ostrov, and from impartial vocational expert Connie
Hillary. (AR 32-67). On July 6, 2017, the ALJ issued a
decision finding Plaintiff was not disabled from February 11,
2013 through the date of the decision and therefore denied
Plaintiff's claim for benefits. (AR 25-26).
6, 2017, Plaintiff sought review with the Appeals Council.
(AR 1). On September 12, 2018, the Appeals Council denied
Plaintiff's request for review and declared the ALJ's
decision to be the Commissioner's final decision in
Plaintiff's case. (Id.). This timely civil
405(g) and 1383(c)(3) of the Social Security Act allow
unsuccessful applicants to seek judicial review of a final
agency decision of the Commissioner. 42 U.S.C. §§
405(g), 1383(c)(3). The scope of judicial review is limited
in that a denial of benefits will not be disturbed if it is
supported by substantial evidence and contains no legal
error. Id.; see also Batson v. Comm'r of the
SSA, 359 F.3d 1190, 1193 (9th Cir. 2004).
evidence means “more than a mere scintilla but less
than a preponderance. . . .” Sandgathe v.
Chater, 108 F.3d 978, 980 (9th Cir. 1997) (internal
quotation marks and citation omitted). “[I]t is such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Id.
(quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th
Cir. 1995)). The court must consider the record as a whole,
weighing both the evidence that supports and detracts from
the Commissioner's conclusions. Desrosiers v.
Sec'y of Health & Human Servs., 846 F.2d 573,
576 (9th Cir. 1988). If the evidence supports more than one
rational interpretation, the court must uphold the ALJ's
decision. Batson, 359 F.3d at 1193. When the
evidence is inconclusive, “‘questions of
credibility and resolution of conflicts in the testimony are
functions solely of the Secretary.'” Sample v.
Schweiker, 694 F.2d 639, 642 (9th Cir. 1982) (quoting
Waters v. Gardner, 452 F.2d 855, 858 n.7 (9th Cir.
a reviewing court finds that substantial evidence supports
the ALJ's conclusion, the court must set aside the
decision if the ALJ failed to apply the proper legal
standards in weighing the evidence and reaching his or her
decision. Batson, 359 F.3d at 1193. Section 405(g)
permits a court to enter a judgment affirming, modifying, or
reversing the Commissioner's decision. 42 U.S.C. §
405(g). The reviewing court may also remand the matter to the
Social Security Administration for further proceedings.
Summary of the ...