McCullough v. Colvin

Filing 21

ORDER GRANTING IN PART 12 PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND 15 DEFENDANT'S MOTION TO REMAND. Signed by Judge Beth Labson Freeman on 3/29/2017. (blflc2S, COURT STAFF) (Filed on 3/29/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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KRISTIN L. MCCULLOUGH,

Case No. 16-cv-00625-BLF

Plaintiff,

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v.

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NANCY A. BERRYHILL,
Defendant.

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ORDER GRANTING IN PART
PLAINTIFF'S MOTION FOR
SUMMARY JUDGMENT AND
DEFENDANT'S MOTION TO REMAND
[Re: ECF 12, 15]

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Plaintiff Kristin L. McCullough appeals a final decision of Defendant Nancy A. Berryhill,

United States District Court
Northern District of California

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Acting Commissioner of Social Security, denying her application for a period of disability and

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disability benefits under Title II of the Social Security Act. Before the Court are Plaintiff’s motion

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for summary judgment and Defendant’s motion to remand, both of which have been fully briefed.

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Upon consideration of the briefing1 and for the reasons set forth below, the Court REVERSES the

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Commissioner’s decision IN PART and REMANDS the case for a determination of disability for

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the closed period from June 30, 2010 through December 3, 2012.

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I.

BACKGROUND
McCullough, was born on November 22, 1961. Admin. R. (“AR”) 58. Since August

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2007, McCullough has filed three applications for disability benefits, including the one presently

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at issue. Id. at 20. McCullough first filed an application for a period of disability and disability

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insurance, contending disabling bipolar disorder, premenstrual dysphoric disorder, thyroid

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condition, and borderline personality disorder on August 21, 2007. AR 20. This application was

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denied on December 6, 2007. Id. McCullough subsequently filed a second application for

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disability benefits on September 2, 2008. Id. at 96 (“Second Application”). The Second

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Application was denied initially and upon reconsideration. Id. at 20. McCullough then requested

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This matter was submitted without oral argument pursuant to Civil Local Rule 16-5.

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a hearing before an administrative law judge (“ALJ”), which was granted. Id. at 96. ALJ Nancy

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Lisewski evaluated McCullough’s disability claims, and ultimately determined that McCullough

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was not disabled on June 29, 2010. Id. at 104–05. The Appeals Council found no legal basis to

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grant review of ALJ Lisewski’s decision, and this court affirmed the Commissioner’s final

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decision. Id. at 106–08; see McCullough v. Astrue, No. 12-cv-1990-EJD, 2013 WL 4806866

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(N.D. Cal. Sept. 9, 2013). McCullough did not appeal this court’s decision.

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On April 12, 2012, McCullough filed a third application for a period of disability and

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disability insurance benefits and for supplemental security income. AR 21, 225. In both

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applications, McCullough alleged disability beginning on April 15, 2006. Id. at 225.
McCullough’s third application was denied initially and upon reconsideration. Id. at 21.

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United States District Court
Northern District of California

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Thereafter, McCullough requested a hearing before an ALJ. Id.

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On January 29, 2014, ALJ Frederick C. Michaud rendered a partially favorable decision.

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Id. at 23–30. In his decision, ALJ Michaud concluded that McCullough was not disabled prior to

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December 4, 2012, but became disabled on that date and continued to be disabled through the date

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of his decision. Id. at 21. ALJ Michaud also found that there was no “good cause” to “vacate the

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well-written and supported prior unfavorable decision, nor any of the prior determinations,” and

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thus concluded that they shall remain in force pursuant to res judicata. Id. at 20. ALJ Michaud’s

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decision, therefore, considered only whether McCullough was disabled from June 29, 2010, the

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date of ALJ Lisweski’s decision, through January 29, 2014, the date of his decision. Id. The

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Appeals Council affirmed ALJ Michaud’s decision. Id. at 1.

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McCullough now seeks judicial review of the denial of benefits for the closed period of

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June 30, 2010 through December 3, 2012. Pl.’s Mot. Summ. J. (“Pl.’s Mot.”) 1, ECF 12.

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Specifically, McCullough asks the Court to reverse the final decision of the Commissioner

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pursuant to the fourth sentence of 42 U.S.C. § 405(g), without a remand for a rehearing, i.e., for a

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finding of disability for the period from June 30, 2010 through December 3, 2014. Id.

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Alternatively, McCullough asks the Court to reverse the Commissioner’s final decision with a

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remand for a rehearing for the period from June 30, 2010 through December 3, 2012. Id.

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In response to McCullough’s motion for summary judgment, the Commissioner filed a
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motion to remand, agreeing that the case should be remanded to the agency because the ALJ did

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not adequately address medical-opinion evidence or Plaintiff’s credibility. Def.’s Mot. Remand

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(“Def.’s Mot.”) 2, ECF 15. The Commissioner, however, disagrees with McCullough’s

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contention that the Court should remand this case to the agency for the automatic payment of

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benefits or with specific instructions that the ALJ only reconsider the closed period from June 30,

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2010 through December 3, 2012. Id.

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II.

LEGAL STANDARD
A.

Standard of Review
District courts “have power to enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security,

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United States District Court
Northern District of California

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with or without remanding the cause for a rehearing.” 42 USC § 405(g). However, “a federal

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court’s review of Social Security determinations is quite limited.” Brown-Hunter v. Colvin, 806

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F.3d 487, 492 (9th Cir. 2015). Federal courts “‘leave it to the ALJ to determine credibility,

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resolve conflicts in the testimony, and resolve ambiguities in the record.’” Id. (quoting Treichler

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v. Comm’r of Soc. Sec. Admin., 775 F.3d 1090, 1098 (9th Cir. 2014)).

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A court “will disturb the Commissioner’s decision to deny benefits only if it is not

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supported by substantial evidence or is based on legal error.” Brown-Hunter, 806 F.3d at 492

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(internal quotation marks and citation omitted). “Substantial evidence is such relevant evidence as

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a reasonable mind might accept as adequate to support a conclusion, and must be more than a

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mere scintilla, but may be less than a preponderance.” Rounds v. Comm’r of Soc. Sec. Admin.,

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807 F.3d 996, 1002 (9th Cir. 2015) (internal quotation marks and citations omitted). A court

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“must consider the evidence as a whole, weighing both the evidence that supports and the

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evidence that detracts from the Commissioner’s conclusion.” Id. (internal quotation marks and

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citation omitted). If the evidence is susceptible to more than one rational interpretation, the ALJ’s

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findings must be upheld if supported by reasonable inferences drawn from the record. Id.

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Finally, even when the ALJ commits legal error, the ALJ’s decision will be upheld so long

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as the error is harmless. Brown-Hunter, 806 F.3d at 492. However, “[a] reviewing court may not

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make independent findings based on the evidence before the ALJ to conclude that the ALJ’s error
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was harmless.” Id. The court is “constrained to review the reasons the ALJ asserts.” Id.

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B.

Standard for Determining Disability
Disability benefits are available under Title II of the Social Security Act when an eligible

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claimant is unable “to engage in any substantial gainful activity by reason of any medically

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determinable physical or mental impairment which can be expected to result in death or which has

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lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §

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423(d)(1)(A).
“To determine whether a claimant is disabled, an ALJ is required to employ a five-step

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sequential analysis, determining: (1) whether the claimant is doing substantial gainful activity; (2)
whether the claimant has a severe medically determinable physical or mental impairment or

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United States District Court
Northern District of California

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combination of impairments that has lasted for more than 12 months; (3) whether the impairment

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meets or equals one of the listings in the regulations; (4) whether, given the claimant’s residual

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functional capacity, the claimant can still do his or her past relevant work; and (5) whether the

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claimant can make an adjustment to other work.” Ghanim v. Colvin, 763 F.3d 1154, 1160 (9th

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Cir. 2014) (internal quotation marks and citations omitted). The residual functional capacity

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(“RFC”) referenced at step four is what a claimant can still do despite his or her limitations. Id. at

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1160 n.5. “The burden of proof is on the claimant at steps one through four, but shifts to the

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Commissioner at step five.” Bray v. Comm’r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir.

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2009).

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III.

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DISCUSSION
The ALJ determined that McCullough had acquired sufficient quarters of coverage to

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remain insured through June 30, 2012. AR 23. At step one, ALJ Michaud determined that

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McCullough had not engaged in substantial gainful activity since the alleged onset date of April

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15, 2006. Id. At step two, the ALJ found that McCullough had the following severe impairments:

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mood disorder, borderline personality disorder, and Hashimoto’s hypothyroidism. Id.

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At step three, the ALJ concluded that McCullough did not have an impairment or

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combination of impairments that met or medically equaled the severity of one of the listed

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impairments in 20 C.F.R., Part 404, Subpart P, Appendix 1 (20 C.F.R. 404.1520(d), 404.1525, and
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404.1526), prior to December 4, 2012. AR 23. Thus, the ALJ concluded that McCullough

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became disabled on December 4, 2012. Id. at 23, 28 (“Beginning on December 4, 2012, the

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severity of claimant’s impairments has met the criteria of section 12.08 of 20 CFR Part 404,

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Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, 416.920(d)[,] and 416.925).”).

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Between steps three and four, the ALJ found that McCullough had the RFC to perform a

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full range of work at all exertional levels, with few exceptions, prior to December 4, 2012. Id. at

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24. At step four, the ALJ found that because McCullough was not disabled prior to December 4,

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2012, through that date, “there were jobs that existed in significant numbers in the national

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economy that [she] could have performed. Id. at 28. ALJ Michaud thus “endorsed” the “other
jobs” cited by ALJ Lisewski in her unfavorable decision hearing. See id. at 103–04. However, the

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United States District Court
Northern District of California

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ALJ found that beginning on December 4, 2012, the severity of McCullough’s impairments met

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the criteria of Section 12.08, and she continued to be disabled through the date of his decision. Id.

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at 29–30.

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McCullough argues that ALJ Michaud’s finding of non-disability for the period from June

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30, 2010 through December 3, 2012 is not supported by substantial evidence, and should thus be

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reversed. Specifically, McCullough contends that (1) ALJ Michaud erroneously applied the Ninth

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Circuit’s decision in Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), when he concluded that there

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was no evidence of “changed circumstances” sufficient to rebut the presumption of continuing

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non-disability arising from ALJ Lisewski’s decision on June 29, 2010 until December 4, 2012,

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Pl.’s Mot. 8; AR 27; (2) ALJ Michaud failed to evaluate the opinions of two state-agency non-

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examining physicians, erroneously rejected the opinions of treating psychiatrist Dr. Marchenko,

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and erroneously evaluated evidence from treating psychiatrist Dr. Rahman, Pl.’s Mot. 8–17; and

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(3) the ALJ did not provide clear and convincing reasons for finding McCullough not credible.

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Mot. 18. Defendant concedes that ALJ Michaud did not adequately address medical-opinion

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evidence or Plaintiff’s credibility. Def.’s Mot. 2.

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Having reviewed the record and the parties’ briefs, the Court agrees that the ALJ did not

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properly evaluate the medical-opinion evidence or Plaintiff’s credibility. Accordingly, the Court

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REMANDS this action to the ALJ.
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Having concluded that this case should be remanded, the Court must now determine

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whether the case should be remanded for the payment of benefits or for additional investigation

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and determination. Pl.’s Reply 6, ECF 18. “[T]he proper course, except in rare circumstances, is

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to remand to the agency for additional investigation or explanation.” INS v. Ventura, 537 U.S. 12,

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16 (2002) (internal citations omitted). Contrary to McCullough’s suggestion, this is not the rare

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circumstance where a remand for further proceedings is inappropriate because material questions

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of fact remain—particularly, whether McCullough was disabled during the period at issue, and

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even if she were disabled, whether McCullough would have been “[ ]able to perform gainful

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employment in the national economy.” Benecke v. Barnhart, 379 F.3d 587, 594–95 (9th Cir.

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2004). Thus, remand, not an award of benefits, is the proper course of action in this case. See

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United States District Court
Northern District of California

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Strauss v. Comm’r of Soc. Sec. Admin., 635 F.3d 1135, 1136 (9th Cir.2011) (remand for automatic

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payment for benefits is inappropriate unless the record clearly shows that the claimant “is, in fact,

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disabled”); see also Goucher v. Colvin, No. C-14-3009, 2015 WL 4051946 (N.D. Cal. July 2,

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2015). Thus, the ALJ shall reconsider the evidence, and to reassess whether McCullough was

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disabled during the period from June 30, 2010 through December 3, 2012
The Court limits reconsideration to the period of June 30, 2010 through December 3, 2012,

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because the Court is unaware of any authority that would allow this Court to reopen the

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Commission’s favorable determination. See Pl.’s Reply 3. Moreover, the Commissioner did not

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argue that there was any defect in the finding of disability. See id. at 2. As explained by the Tenth

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Circuit, “[t]he Commissioner may not terminate disability benefits without making findings

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demonstrating that a claimant has medically improved [and] is able to perform either . . . past work

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or ‘other work’ existing ‘in significant numbers.” Hayden v. Barnhart, 374 F.3d 986, 994 (10th

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Cir. 2004). No such findings exist in the record.

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IV.

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CONCLUSION
Based on the foregoing, the Court GRANTS Plaintiff’s motion for summary judgment in

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part and Defendant’s motion to remand in part; REVERSES the Commissioner’s final decision

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denying Plaintiff’s application for a period of disability insurance benefits and supplemental

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security income for the closed period from June 30, 2010 through December 3, 2012, only; and
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REMANDS this case for consideration of only the closed period from June 30, 2010 through

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December 3, 2012. The motions are DENIED as to all other issues presented.

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IT IS SO ORDERED.

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Dated: March 29, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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United States District Court
Northern District of California

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