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Brown v. Colvin

United States District Court, Ninth Circuit

January 9, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


CAROLYN S. OSTBY, Magistrate Judge.

Plaintiff Patricia Brown ("Brown") seeks judicial review of Defendant Commissioner of Social Security's ("Commissioner") decision denying her application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"), 42 U.S.C. §§ 401-433. Complt. (ECF 1). On August 5, 2013, Judge Haddon referred this case to the undersigned for all pretrial proceedings. ECF 14. [1]

Now pending are the parties' cross-motions for summary judgment. ECFs 10 (Brown's motion) and 15 (Commissioner's motion). For the reasons stated below, the Court recommends that Brown's motion be denied, the Commissioner's motion be granted, and the ALJ's decision denying DIB be affirmed.


In May 2006, Brown filed her first DIB application and alleged disability onset in March 1997. Tr. 83-85. That application was denied initially and on reconsideration, and Brown did not request a hearing before an ALJ within the time permitted. Tr. 46-48, 52-53. Brown filed her second DIB application in April 2008, claiming disability onset in September 2002. Tr. 86-87. That application was denied initially and on reconsideration. Tr. 10. Brown requested a hearing, which was dismissed by an ALJ on res judicata grounds. Tr. 10, 37-38.

Brown filed the current and third application for DIB in December 2009, identifying March 1997 as her alleged onset date. Tr. 88-91. That claim was denied both initially and on reconsideration, and Brown requested a hearing before an ALJ. Tr. 54-55, 63-65. That request was initially dismissed in June 2010 on the basis of res judicata. Tr. 44-45. In July 2010, Brown requested that the ALJ vacate his Order of Dismissal for good cause, as Brown's attorney on the first two dismissals had been disbarred and was in prison, and had incorrectly advised her that he had pursued all appeals in a timely manner. Tr. 69-71. The ALJ set aside the Order of Dismissal in October 2010. Tr. 80.

The ALJ held a hearing on the merits on December 14, 2011. Tr. 617-70. On March 22, 2012, the ALJ issued a decision concluding that Brown was not disabled within the meaning of the Social Security Act (the "Act") at any time during the period December 19, 2002, through June 30, 2005, the date she was last insured for DIB. Tr. 10-22. The Appeals Council denied Brown's request for review in February 2013, making the ALJ's decision the Commissioner's final decision for purposes of judicial review. Tr. 2-5; 20 C.F.R. § 422.201(a). This appeal followed. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g).


This Court's review is limited. The Court may set aside the Commissioner's decision only where the decision is not supported by substantial evidence or where the decision is based on legal error. Ryan v. Commr. of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008); 42 U.S.C. § 405(g). "Substantial evidence is more than a mere scintilla, but less than a preponderance." Id. (citing Bayliss v. Barnhart, 427 F.3d 1211, 1214 n. 1 (9th Cir. 2005) (internal quotation marks omitted)). "It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. (internal quotation marks and citation omitted).

The Court must consider the record as a whole, weighing both the evidence that supports and detracts from the Commissioner's conclusion, and cannot affirm the ALJ "by isolating a specific quantum of supporting evidence." Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006) (internal quotation marks and citation omitted). The Court reviews only the reasons provided by the ALJ, and may not affirm on a ground upon which the ALJ did not rely. Connett v. Barnhart, 340 F.3d 871, 874 (9th Cir. 2003). The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities. "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (internal citation omitted).


A claimant is disabled for purposes of the Act if: (1) the claimant has a 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 twelve months, and (2) the impairment or impairments are of such severity that, considering the claimant's age, education, and work experience, the claimant is not only unable to perform previous work, but the claimant cannot "engage in any other kind of substantial gainful work which exists in the national economy." Schneider v. Commr. of Soc. Sec. Admin., 223 F.3d 968, 974 (9th Cir. 2000) (citing 42 U.S.C. § 1382c(a)(3)(A)-(B)).

In determining whether a claimant is disabled, the Commissioner follows a five-step sequential evaluation process. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999); 20 C.F.R. § 404.1520(a)(4)(i)-(v).

1. The claimant must first show that he or she is not currently engaged in substantial gainful activity. Tackett, 180 F.3d at 1098.
2. If not so engaged, the claimant must next show that he or she has a severe impairment. Id.
3. The claimant is conclusively presumed disabled if his or her impairments meet or medically equal one contained in the Listing of Impairments described in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (hereafter "Listing of Impairments"). Id. If the claimant's impairments do not meet or medically equal one listed in the regulations, the analysis proceeds to the fourth step.
4. If the claimant is still able to perform his or her past relevant work, he or she is not disabled and the analysis ends here. Id. "If the claimant cannot do any work he or she did in the past, then the claimant's case cannot be resolved at [this step] and the evaluation proceeds to the fifth and final step." Id. at 1098-99.
5. If the claimant is unable to perform his or her past relevant work due to a "severe impairment (or because [he or she does] not have any past relevant work)" the court will determine if the claimant is able to make an adjustment to perform other work, in light of his or her residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(g). If an adjustment to other work is possible then the claimant is not disabled. Tackett, 180 F.3d at 1099.

The claimant bears the burden of proof at steps one through four, but at the fifth step the Commissioner bears the burden of establishing that there is other work in significant numbers in the national economy that the claimant can perform. Id. The Commissioner can meet this burden via the testimony of a vocational expert or reference to the Medical-Vocational Guidelines at 20 C.F.R. Pt. 404, Subpt. P, App. 2. Id. If the Commissioner is unable to meet this burden then the claimant is disabled and entitled to benefits. Id.


The ALJ followed the five-step sequential evaluation process in considering Brown's claims and in determining that Brown experienced some limitations in functioning, but did not meet the strict standard for disability under the Act during the relevant time period. Tr. 7-23.

The ALJ first found that Brown was insured for disability from March 23, 1997, Brown's alleged disability onset date, through June 30, 2005. Tr. 13. The ALJ then determined that, while Brown performed some work from 2000 to 2002, Brown did not engage in substantial ...

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