Guerrero v. Colvin

Filing 36

ORDER: The Report and Recommendation (ECF No. 34 ) is Adopted in its entirety. Plaintiff's Motion to Alter or Amend the Judgment of the Court (ECF No. 30 ) is Denied. Signed by Judge William Q. Hayes on 02/12/2018. (ajs)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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LINDA GUERRERO,

Case No.: 16-cv-1229-WQH-NLS
Plaintiff,

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v.

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ORDER

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,

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Defendant.

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HAYES, Judge:
The matter before the Court is the review of the Report and Recommendation (ECF

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No. 34) filed by the United States Magistrate Judge.
I.

Background
On July 23, 2012, Plaintiff Linda Guerrero filed an application for Supplemental

Security Income.

Administrative Record (“AR”) at 124–129, 140.

Plaintiff was

represented by counsel during her appearance before the Administrative Law Judge
(“ALJ”) assigned to her application. See id. at 37–38. On November 20, 2014, the ALJ
issued a decision denying Plaintiff’s application for benefits and finding Plaintiff not
disabled under the Social Security Act. Id. at 20–28. The ALJ found that Plaintiff could
perform her past relevant work as a customer service clerk and a retail sales clerk and that
this past relevant work does not require her to perform work-related activities precluded
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by her residual functional capacity. Id. Plaintiff never raised the issue of whether her past

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work demonstrated “substantial gainful activity” before the ALJ. See AR at 48–49.

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Plaintiff filed an appeal of the ALJ’s decision. Id. at 15–16, 202–03. Plaintiff did

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not argue that the ALJ erred in finding that Plaintiff’s past work was relevant because it

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demonstrated substantial gainful activity. See id. On March 3, 2015, the Appeals Council

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denied Plaintiff’s request for review. Id. at 1–4.

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On May 23, 2016, Plaintiff initiated this action by filing the Complaint (ECF No. 1)

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against Defendant Carolyn W. Colvin, Acting Commissioner of Social Security.1 On

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October 26, 2016, Plaintiff filed a Motion for Summary Judgment (ECF No. 16). On

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December 2, 2016, Defendant filed a Cross-Motion for Summary Judgment and Opposition

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to Plaintiff’s Motion for Summary Judgment. (ECF No. 21). On April 26, 2017, the United

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States Magistrate Judge issued a Report and Recommendation recommending that

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Plaintiff’s Motion for Summary Judgment be denied and that Defendant’s Cross-Motion

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for Summary Judgment be granted. (ECF No. 25). The Magistrate Judge found that

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Plaintiff waived the argument that the record does not demonstrate a level of “substantial

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gainful activity” for her past relevant work by not raising the issue before the ALJ or the

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Appeals Council. Id. at 9–12.

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On July 19, 2017, the Court issued an Order adopting the Report and

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Recommendation in its entirety, denying Plaintiff’s Motion for Summary Judgment and

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granting Defendant’s Cross-Motion for Summary Judgment. (ECF No. 28). The Court

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stated that “[t]he Magistrate Judge correctly concluded that Plaintiff waived the argument

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that the record does not demonstrate a level of ‘substantial gainful activity’ for her past

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relevant work.” Id. at 3. The Clerk of Court entered judgment for the Defendant on July

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20, 2017. (ECF No. 29).

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Nancy A. Berryhill is now the Acting Commissioner of Social Security. Pursuant to Rule 25(d) of
the Federal Rules of Civil Procedure, Berryhill has been automatically substituted for Colvin as her
successor as Acting Commissioner of Social Security.
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On August 2, 2017, Plaintiff filed a Motion to Alter or Amend the Judgment of the

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Court “on the grounds that the memorandum and resulting judgment constitute a

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fundamental and clear error of law based on Lamear v. Berryhill, [865] F.3d [1201] (9th

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Cir. August 1, 2017).” (ECF No. 30 at 1). On August 31, 2017, Defendant filed a Response

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to Plaintiff’s Motion to Alter or Amend the Judgment of the Court. (ECF No. 32). On

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September 14, 2017, Plaintiff filed a Reply (ECF No. 33).

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On September 21, 2017, the Magistrate Judge issued a Report and Recommendation

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recommending that Plaintiff’s Motion to Alter or Amend the Judgment of the Court be

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denied. (ECF No. 34). The Magistrate Judge concluded that “Plaintiff’s counsel did not

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raise the argument that she lacked past relevant work before the ALJ or the Appeals

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Council, and thus, waived the issue.” Id. at 5 (citing Meanel v. Apfel, 172 F.3d 1111, 1115

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(9th Cir. 1999), as amended (June 22, 1999). The Magistrate Judge reasoned that Lamear

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does not require a different result because “the claimant in Lamear raised the issue before

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the Appeals Council, 865 F.3d at 1206, whereas Plaintiff did not, AR 202-03.” Id.

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On October 5, 2017, Plaintiff filed Objections to the Report and Recommendation.

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(ECF No. 35).

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Recommendation (ECF No. 34) because Plaintiff did not waive the argument that the

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record does not demonstrate a level of substantial gainful activity for her past relevant

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work. Id. Plaintiff contends that an issue is not waived when the evidence on the record

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does not support an ALJ’s erroneous finding even if the claimant’s “attorney did not warn

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the ALJ of the possible error and did not point out that error to the Appeals Council.” Id.

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at 1.

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II.

Plaintiff contends that the Court should reject the Report and

Legal Standard

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The duties of the district court in connection with a report and recommendation of a

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magistrate judge are set forth in Federal Rule of Civil Procedure 72(b) and 28 U.S.C. §

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636(b). The district judge must “make a de novo determination of those portions of the

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report . . . to which objection is made,” and “may accept, reject, or modify, in whole or in

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part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b).
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III.

Analysis

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Plaintiff contends that she did not waive the argument that the record does not

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demonstrate a level of substantial gainful activity for her past relevant work because the

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ALJ’s contrary finding is not supported by the evidence on the record, even though Plaintiff

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did not raise that issue before the ALJ or the Appeals Council. Id. at 1. The Court of

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Appeals has explicitly “h[e]ld that, at least when claimants are represented by counsel, they

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must raise all issues and evidence at their administrative hearings in order to preserve them

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on appeal.” Meanel v. Apfel, 172 F.3d 1111, 1115 (9th Cir. 1999), as amended (June 22,

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1999). Plaintiff did not raise the issue of whether the record demonstrates a level of

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substantial gainful activity for her past relevant work before the ALJ or the Appeals

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Council. See AR at 15–16, 48–49, 202–03. Consequently, Plaintiff has waived her right

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to raise that issue before this Court. Meanel, 172 F.3d at 1115.

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IV.

Conclusion

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IT IS HEREBY ORDERED that the Report and Recommendation (ECF No. 34) is

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adopted in its entirety. Plaintiff’s Motion to Alter or Amend the Judgment of the Court

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(ECF No. 30) is DENIED.

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Dated: February 12, 2018

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