Guerrero v. Colvin

Filing 34

REPORT AND RECOMMENDATION Re Dkt # 30 : Objections to R&R due by 10/6/2017. Replies due by 10/20/2017. Signed by Magistrate Judge Nita L. Stormes on 9/21/2017. (mdc)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 LINDA GUERRERO, Case No.: 3:16-cv-01229-WQH-NLS Plaintiff, 12 13 v. 14 REPORT AND RECOMMENDATION FOR ORDER DENYING PLAINTIFF’S MOTION TO ALTER OR AMEND THE JUDGMENT OF THE COURT NANCY A. BERRYHILL, Acting Commissioner of Social Security, 15 Defendant. 16 [ECF No. 30] 17 18 19 Before the Court is Plaintiff Linda Guerrero’s motion to alter or amend the district 20 judge’s July 19, 2017 order denying Plaintiff’s motion for summary judgment, granting 21 Defendant’s motion for summary judgment, and entering judgment in favor of 22 Defendant. ECF No. 30. The motion is fully briefed and the matter has been referred to 23 this Court for a report and recommendation. See 42 U.S.C. § 636(b)(1)(B). 24 After considering the relevant filings, the administrative record, and the applicable 25 law, the Court RECOMMENDS that Plaintiff’s motion be DENIED and the judgment 26 AFFIRMED. 27 /// 28 /// 1 3:16-cv-01229-WQH-NLS 1 I. 2 The Court extensively outlined both the procedural and factual background of this 3 case in its April 26, 2017 Report and Recommendation (ECF No. 25) and will not repeat 4 it here. In brief, Plaintiff filed an application for Supplement Security Income (“SSI”) 5 under Title XVI of the Social Security Act on July 23, 2012, alleging a disability onset 6 date of August 20, 2007. Administrative Record (“AR”) 124-29, 140. The 7 Commissioner denied Plaintiff’s claim initially and on reconsideration. AR 74-78, 86-92. 8 During a hearing before an Administrative Law Judge (“ALJ”) on September 17, 2014, 9 Plaintiff was represented by counsel, who stated that Plaintiff had amended her SSI claim BACKGROUND 10 and sought benefits only for the period starting on July 23, 2012 (the date she filed the 11 application) through September 1, 2013 (the date she returned to gainful employment). 12 AR 37-38. 13 In a decision dated November 20, 2014, the ALJ found that Plaintiff was not under 14 a disability from July 23, 2012 through September 1, 2013, because she was able to 15 return to her past relevant work as a customer service clerk or as a retail sales clerk. AR 16 20-28. With the assistance of counsel, Plaintiff filed an appeal. AR 15-16, 202-03. On 17 March 3, 2015, the Appeals Council denied Plaintiff’s request for review, making the 18 ALJ’s decision the final decision of the Commissioner for judicial review purposes. AR 19 1-4. 20 On May 23, 2016, Plaintiff sought review in the district court. In her motion for 21 summary judgment, Plaintiff argued, among other things, that the ALJ’s conclusion that 22 Plaintiff performed past work at a level amounting to substantial gainful activity was not 23 supported by substantial evidence. ECF No. 16-1 at 5-8. On April 26, 2017, this Court 24 issued a Report and Recommendation finding that Plaintiff had waived this issue by not 25 raising it during her administrative hearing or before the Appeals Council, despite having 26 the assistance of counsel in both instances. ECF No. 25 at 9-12. After considering 27 Plaintiff’s objections to this Court’s report, the district judge adopted the report in its 28 entirety, denied Plaintiff’s motion for summary judgment, and granted Defendant’s cross2 3:16-cv-01229-WQH-NLS 1 motion. ECF No. 28. On July 20, 2017, the clerk entered judgment for Defendant. ECF 2 No. 29. 3 II. 4 A party may move to alter or amend a judgment pursuant to Rule 59 of the Federal 5 Rules of Civil Procedure within twenty-eight days after the entry of judgment. Fed. R. 6 Civ. P. 59(c). “In general, there are four basic grounds upon which a Rule 59(e) motion 7 may be granted: (1) if such motion is necessary to correct manifest errors of law or fact 8 upon which the judgment rests; (2) if such motion is necessary to present newly 9 discovered or previously unavailable evidence; (3) if such motion is necessary to prevent LEGAL STANDARD 10 manifest injustice; or (4) if the amendment is justified by an intervening change in 11 controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 2011). Rule 12 59(e) offers an “extraordinary remedy, to be used sparingly in the interests of finality and 13 conservation of judicial resources.” Kona Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 14 890 (9th Cir. 2000). 15 16 III. DISCUSSION Plaintiff objects to the Court’s finding that, by not expressly raising it during the 17 administrative hearing or before the Appeals Council, Plaintiff waived the issue of 18 whether she earned enough money at her previous jobs for any of them to constitute 19 substantial gainful activity, such that she had past relevant work experience. ECF No. 20 30-1 at 3. In support of her position, Plaintiff cites to the Ninth Circuit’s recent opinion 21 in Lamear v. Berryhill, 865 F.3d 1201 (9th Cir. 2017), wherein the court held that 22 counsel’s failure to raise an issue or evidence at an administrative hearing “does not 23 relieve the ALJ of his express duty to reconcile apparent conflicts through questioning.” 24 In Lamear, the claimant’s limitations included being limited to only “occasionally” 25 handling, fingering, and reaching overhead with his left, non-dominant hand and arm. 26 Lamear, 865 F.3d at 1203. During Lamear’s administrative hearing, a vocational expert 27 (“VE”) testified that, given this limitation, Lamear could not return to his past relevant 28 work, but could work as an office helper, mail clerk, or parking lot cashier. Id. 3 3:16-cv-01229-WQH-NLS 1 According to the Department of Labor’s Dictionary of Occupational Titles (“DOT”), 2 these alternate jobs required “frequent” handling, fingering, and reaching, but the VE did 3 not explain why Lamear could nonetheless do this work, and “the ALJ never asked the 4 VE to reconcile any potential inconsistencies between Lamear’s manipulative limitations 5 and the DOT’s job descriptions.” Id. at 1204. The ALJ denied Lamear’s application for 6 disability benefits, finding at step five that other jobs existed that Lamear could perform. 7 Id. Lamear then requested review by the Appeals Council, arguing that an apparent 8 conflict existed between his manipulative limitations and the DOT, which the ALJ should 9 have reconciled. Id. The Appeals Council denied review, and the district court affirmed. 10 11 Id. On appeal, Lamear again submitted that the ALJ should have resolved the conflict 12 between the VE’s testimony and the DOT. Citing to Meanel v. Apfel, 172 F.3d 1111, 13 1115 (9th Cir. 1999), as amended (June 22, 1999), the Commissioner argued that in order 14 to preserve the issue for appeal, Lamear’s counsel should have asked the VE during 15 cross-examination to address the discrepancy. Id. at 1206. In response, the Ninth Circuit 16 noted that, unlike in Meanel, Lamear had raised the issue before the Appeals Council. Id. 17 The court further explained that when an apparent conflict exists between a VE’s 18 testimony and the DOT, the ALJ is required to reconcile the inconsistency. Id. (citing 19 Zavalin v. Colvin, 778 F.3d 842, 846 (9th Cir. 2015)). Because that inquiry did not 20 occur, the court remanded Lamear’s case. Id. at 1207. 21 Two critical distinctions exist, however, between the present case and Lamear. 22 First, the review in Lamear centered on the ALJ’s determination at step five of the 23 sequential evaluation process, see id. at 1204, at which point the burden shifts to the 24 government, Celaya v. Halter, 332 F.3d 1177, 1180 (9th Cir. 2003) (explaining that “at 25 this last step the burden of proof shifts from the claimant to the government”). By 26 contrast, Plaintiff here objects to the finding at step four, where the burden still lay with 27 Plaintiff to prove she was disabled and unable to return to past relevant work. Celaya, 28 332 F.3d at 1180. Plaintiff presents no argument or authority that the Lamear holding 4 3:16-cv-01229-WQH-NLS 1 applies to a step four analysis and, in fact, all of the authority cited in Lamear addresses 2 review of step five determinations. See Zavalin, 778 F.3d at 846 (requiring ALJ to 3 reconcile inconsistencies between the VE’s testimony and the DOT at step five); SSR 00- 4 4p, 2000 WL 1898704, at *2 (Dec. 4, 2000) (clarifying that ALJ must inquire about any 5 conflicts between the VE’s evidence and the DOT); (Prochaska v. Barnhart, 454 F.3d 6 731, 735 (7th Cir. 2006) (agreeing with other circuits that SSR 00–4p imposes on the 7 ALJ an affirmative duty to inquire about conflicts between the DOT and VE testimony 8 before making a step five determination). 9 Second, the claimant in Lamear raised the issue before the Appeals Council, 865 10 F.3d at 1206, whereas Plaintiff did not, AR 202-03. Plaintiff cites to Sims v. Apfel, 530 11 U.S. 103 (2000) in arguing that a claimant is not required to raise and exhaust discrete 12 issues with the Appeals Council. ECF No. 30-1 at 4. However, the holding in Sims was 13 limited to situations where the claimant had presented the issue to the ALJ. Sims, 530 14 U.S. at 112 (“[c]laimants who exhaust administrative remedies need not also exhaust 15 issues in a request for review by the Appeals Council in order to preserve judicial review 16 of those issues”). Plaintiff’s counsel did not raise the argument that she lacked past 17 relevant work before the ALJ or the Appeals Council, and thus, waived the issue. 18 Meanel, 172 F.3d at 1115; see also Shaibi v. Berryhill, __ F.3d __, 2017 WL 3598085, at 19 *6 (9th Cir. Aug. 22, 2017) (holding that where a claimant who was represented by 20 counsel failed to challenge a vocational expert’s job numbers at the administrative 21 hearing as well as on administrative appeal, the claimant waived the issue on appeal to 22 the district court). The Court, therefore, finds Lamear distinguishable. 23 While it is true that social security proceedings are intended to be “inquisitorial 24 rather than adversarial” and that the ALJ generally is expected to “investigate the facts 25 and develop the arguments both for and against granting benefits,” Sims, 530 U.S. at 26 110–11 (citing Richardson v. Perales, 402 U.S. 389, 400–401 (1971)), this Court is bound 27 by Ninth Circuit precedent, which makes clear that a claimant who is represented by 28 counsel waives any issues or evidence not presented at his or her administrative hearing. 5 3:16-cv-01229-WQH-NLS 1 Meanel, 172 F.3d at 1115; see also Shaibi, 2017 WL 3598085, at *6 (concluding that 2 where a claimant did not present an issue before the ALJ or the Appeals Council, the 3 court could not say that the holding in Sims was “clearly irreconcilable” with the court’s 4 decision in Meanel, and confirming that Meanel “remains binding on this court with 5 respect to proceedings before an ALJ”). Given the facts this case, the Court also finds 6 Greger v. Barnhart, 464 F.3d 968 (9th Cir. 2006) instructive. In Greger, the claimant 7 applied for disability benefits solely on the basis of physical problems. Greger, 464 F.3d 8 at 968, 973. During his administrative hearing, the ALJ asked why Greger had difficulty 9 getting along with a former supervisor and Greger testified that he had Post Traumatic 10 Stress Disorder (“PTSD”). Id. at 973. The ALJ followed up by inquiring as to whether 11 the Veteran’s Administration had given Greger a percentage rating for his PTSD and if 12 so, when that occurred. Id. In his decision, the ALJ concluded at step two that Greger’s 13 PTSD did not meet the criteria for a severe impairment. Id. at 971. Though Greger was 14 represented by counsel, and despite the discussion with the ALJ on the topic of PTSD, 15 Greger never claimed PTSD as a basis for his disability at the administrative level, before 16 the Appeals Council, or in the district court. Id. at 973. On appeal, the Ninth Circuit 17 concluded that Greger had waived the issue of whether the ALJ erred in finding that his 18 PTSD was not severe by failing to raise it earlier.1 Id. Further, the court found that 19 Greger had every opportunity to raise the issue of his PTSD and that the court’s refusal to 20 address the issue did not constitute a miscarriage of justice. Id. at 974. 21 Plaintiff here argues that the earnings records were before the ALJ and that it was 22 the ALJ’s duty to develop the record in order to determine whether Plaintiff engaged in 23 substantial gainful activity. ECF No. 30-1 at 4-5. Yet, as in Greger, Plaintiff never 24 raised the issue of whether her past work constituted substantial gainful activity, even 25 when her attorney and the ALJ were asking the VE about Plaintiff’s past work during the 26 27 1 28 Though the court in Greger addressed issues raised for the first time on federal appeal, the court’s reasoning applies equally to issues raised for the first time in the district court. 6 3:16-cv-01229-WQH-NLS 1 hearing. See AR 47-49. She also did not raise the issue before the Appeals Council. 2 Though she had legal representation at both administrative levels, and every opportunity 3 to do so, Plaintiff did not question the ALJ’s finding that her prior work met the standard 4 for substantial gainful activity until she sought relief from the district court. Under these 5 circumstances, the issue is waived. Greger, 464 F.3d at 973; Meanel, 172 F.3d at 1115. 6 And, while the court may excuse such a waiver when it is necessary in order to “avoid a 7 manifest injustice,” Meanel, 172 F.3d at 1115, that is not the case here. On similar facts, 8 the courts in Meanel and Greger concluded that finding waiver would not result in 9 manifest injustice and Plaintiff has not persuaded the Court that this case is any different. 10 On a final note, Plaintiff’s briefing implies that Plaintiff’s earnings records were 11 neatly laid out in the administrative record and that it was patently obvious that they did 12 not amount to substantial gainful activity. That simply is not the case. The SSA’s 13 formula for determining substantial gainful activity is somewhat complex. See 20 C.F.R. 14 § 416.974 (Nov. 16, 2016). In determining whether a claimant’s past work rose to the 15 level of substantial gainful activity, the SSA compares the claimant’s monthly earnings to 16 a baseline level for each year. These levels are reflected in a chart on the Social Security 17 Administration’s website ( (last visited 18 Sept. 19, 2017), of which the Court takes judicial notice.2 19 In this case, data provided in the administrative record shows Plaintiff’s annual 20 earnings over the years, but do not provide any insight into how long she worked in any 21 given year. Thus, the calculation necessary to determine her monthly earnings would 22 23 24 25 26 27 28 2 The Court takes judicial notice of this website pursuant to Federal Rule of Evidence 201, which allows the court to “judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” See United States v. Ritchie, 342 F.3d 903, 909 (9th Cir. 2003) (Courts may take judicial notice of some public records, including the “records and reports of administrative bodies”) (internal citation omitted); see also Foreman v. Freedman, No. 11-CV-1187-MMA (RBB), 2013 WL 12184328, at *3 (S.D. Cal. Dec. 20, 2013), aff'd, 653 F. App'x 885 (9th Cir. 2016) (taking judicial notice of the SSA’s official website). 7 3:16-cv-01229-WQH-NLS 1 require knowledge of how many months, or hours per day and days per week, she 2 worked. In her motion for summary judgment, Plaintiff lists her earnings for each year 3 and then, for many of the years, makes arguments such as “[n]o evidence suggests that 4 Guerrero worked in eight months or less during that calendar year.” See ECF No. 16-1 at 5 7. But again, at step four, it was the claimant’s burden, not the ALJ’s, to show that she 6 had not engaged in substantial gainful activity. Celaya, 332 F.3d at 1180. The 7 administrative record also contains earnings information Plaintiff provided—specifically, 8 that between 1998 and 2011 she worked in retail customer service for six hours a day, 9 five days a week, at an hourly rate of $8.25. AR 147. Using these numbers, one 10 calculates that Plaintiff earned $49.50 a day and at least $990.00 per month (though 11 potentially more in months with five work weeks). The SSA’s baseline monthly amounts 12 for 1998 to 2011 range from $500 to $1,000 (only 2010 and 2011 rise above $980). 13 According to the SSA, a person who is earning more than the monthly amount listed 14 ordinarily is considered to be engaging in substantial gainful activity. Thus, the data 15 provided by Plaintiff supports a finding that she engaged in substantial gainful activity. 16 The Social Security Act provides for judicial review of a final agency decision 17 denying a claim for disability benefits. 42 U.S.C. § 405(g). A reviewing court must 18 affirm the denial of benefits if the agency’s decision is supported by substantial evidence 19 and applies the correct legal standard. Id. Substantial evidence is defined as “such 20 relevant evidence as a reasonable mind might accept as adequate to support a 21 conclusion.” Morgan v. Comm’r Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 2003). 22 “Even when the evidence is susceptible to more than one rational interpretation, we must 23 uphold the ALJ's findings if they are supported by inferences reasonably drawn from the 24 record.” Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012). Here, the ALJ’s finding 25 that Plaintiff engaged in substantial gainful activity is supported by reasonable inferences 26 drawn from the record. Plaintiff’s argument is, at most, another rational interpretation. 27 The Court, therefore, concludes that the denial of benefits was supported by substantial 28 evidence. 8 3:16-cv-01229-WQH-NLS 1 2 IV. CONCLUSION In sum, the Court finds that Lamear does not provide grounds to amend the district 3 judge’s prior judgment and that affirming the judgment will not result in manifest 4 injustice. Allstate, 634 F.3d at 1111. Because the Court finds the extraordinary remedy 5 of Rule 59 relief is not warranted in this case, the Court RECOMMENDS that the 6 district judge DENY Plaintiff’s motion and affirm the judgment. 7 This Report and Recommendation is submitted to the United States district judge 8 assigned to this case under 28 U.S.C. § 636(b)(1). Any party may file written objections 9 with the court and serve a copy on all parties by October 6, 2017. The document should 10 be captioned “Objections to Report and Recommendation.” Any response to the 11 objections shall be filed and served by October 20, 2017. The parties are advised that 12 any failure to file objections within the specified time may waive the right to challenge 13 the magistrate judge’s factual findings on appeal of the Court’s order. Baxter v. Sullivan, 14 923 F.2d 1391, 1394 (9th Cir. 1991). 15 IT IS SO ORDERED. 16 Dated: September 21, 2017 17 18 19 20 21 22 23 24 25 26 27 28 9 3:16-cv-01229-WQH-NLS

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