MARIA-ELENA JAMES, Magistrate Judge.
Plaintiff Patrice Leah Tamayo ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of a final decision of Defendant Nancy A. Berryhill ("Defendant"), the Acting Commissioner of Social Security, denying Plaintiff's claim for disability benefits. Pending before the Court is Plaintiff's Motion for Summary Judgment (Pl.'s Mot. Summ. J. ("MSJ"), Dkt. No. 12) and Defendant's Cross-Motion for Summary Judgment and Motion to Dismiss (Def.'s MSJ, Dkt. No. 17). Pursuant to Civil Local Rule 16-5, the motions have been submitted on the papers without oral argument.
In addition, Plaintiff has filed a Motion to File a First Amended Complaint ("FAC") pursuant to Federal Rule of Civil Procedure 15(a). Mot. to Am. ("MTA"), Dkt. No. 20. Defendant filed an Opposition (MTA Opp'n, Dkt. No. 21) and Plaintiff filed a Reply (MTA Reply, Dkt. No. 22). The Court previously found this matter suitable for disposition without oral argument. Dkt. No. 23; see Fed. R. Civ. P. 78(b); Civ. L.R. 7-1(b). Having considered the parties' positions, the relevant legal authority, and the Administrative Record ("AR"), the Court
Plaintiff received Supplemental Security Income ("SSI") based on disability as a child. AR 67. When she turned eighteen, the Social Security Administration ("SSA") conducted an age-18 redetermination pursuant to 20 C.F.R. § 416.987
On July 9, 2014, Disability Hearing Officer ("DHO") Joselito T. Luna held a disability hearing. AR 88-99. On July 14, 2014, the DHO upheld the SSA's finding that Plaintiff was no longer disabled. AR 72, 88-99, 103-15. The DHO also suggested "[t]his is a [p]otential 301 case because [Plaintiff] states that she continues to be in an Individualized Education Program and attending Adult School to earn her High School Diploma." AR 115.
On July 22, 2014, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") to challenge the DHO's findings. AR 132-34; see AR 137-53. ALJ Mary Parnow conducted a hearing on June 4, 2015. AR 41-57. Plaintiff testified in person at the hearing and was represented by counsel, Vanessa Leonardo. The ALJ also heard testimony from Vocational Expert ("VE") Nancy Rynd.
The regulations promulgated by the Commissioner of Social Security provide for a five-step sequential analysis to determine whether a Social Security claimant is disabled.
The ALJ must first determine whether the claimant is performing "substantial gainful activity," which would mandate that the claimant be found not disabled regardless of medical condition, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(i), (b). As this step does not apply to redetermining disability at age eighteen, the ALJ did not consider whether Plaintiff is performing substantial gainful activity. AR 25 (citing 20 C.F.R. § 416.987(b)).
At step two, the ALJ must determine, based on medical findings, whether the claimant has a "severe" impairment or combination of impairments as defined by the Social Security Act. 20 C.F.R. § 404.1520(a)(4)(ii). If no severe impairment is found, the claimant is not disabled. 20 C.F.R. § 404.1520(c). Here, the ALJ determined that Plaintiff had the following severe impairments: major depressive disorder, recurrent, severe with psychotic features in remission; and an anxiety disorder. AR 26-27. Although Plaintiff also alleged disability on the basis of flat feet, back and leg pains, knee impairment, and mobility issues, the ALJ found Plaintiff failed to show she had any severe musculoskeletal impairment. AR 26. The ALJ also rejected Plaintiff's allegation of disability on the basis of acid reflux. AR 27.
If the ALJ determines that the claimant has a severe impairment, she proceeds to the third step, where she must determine whether the claimant has an impairment or combination of impairments that meet or equals an impairment listed in 20 C.F.R. Part 404, Subpt. P, App. 1 (the "Listing of Impairments"). 20 C.F.R. § 404.1520(a)(4)(iii). If a claimant's impairment either meets the listed criteria for the diagnosis or is medically equivalent to the criteria of the diagnosis, he is conclusively presumed to be disabled, without considering age, education and work experience. 20 C.F.R. § 404.1520(d). Here, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that meets the listings. AR 27-28.
Before proceeding to step four, the ALJ must determine the claimant's Residual Function Capacity ("RFC"). 20 C.F.R. § 404.1520(e). RFC refers to what an individual can do in a work setting, despite mental or physical limitations caused by impairments or related symptoms. 20 C.F.R. § 404.1545(a)(1). In assessing an individual's RFC, the ALJ must consider all of the claimant's medically determinable impairments, including the medically determinable impairments that are nonsevere. 20 C.F.R. § 404.1545(e). Here, the ALJ determined that since March 3, 2014, Plaintiff has had the RFC to perform a full range of work at all exertional levels but was non-exertionally limited to simple, repetitive tasks with occasional contact with the public and frequent contact with coworkers and supervisors. AR 28.
The fourth step of the evaluation process requires that the ALJ determine whether the claimant's RFC is sufficient to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv); 404.1520(f). Here, the ALJ determined that Plaintiff had no past relevant work. AR 31.
In the fifth step of the analysis, the burden shifts to the Commissioner to prove that there are other jobs existing in significant numbers in the national economy which the claimant can perform consistent with the claimant's RFC, age, education, and work experience. 20 C.F.R. §§ 404.1520(g); 404.1560(c). The Commissioner can meet this burden by relying on the testimony of a VE or by reference to the Medical-Vocational Guidelines at 20 C.F.R. Part 404, Subpt. P, App. 2. Lounsburry v. Barnhart, 468 F.3d 1111, 1114 (9th Cir. 2006). Here, based on the testimony of the VE; Plaintiff's age, education, work experience; and RFC, the ALJ determined Plaintiff could perform work as a photocopy machine operator, a marker, and an office helper, and that each of these positions existed in significant numbers in the national economy. AR 32.
On September 9, 2015, the ALJ issued an unfavorable decision finding Plaintiff was no longer disabled as of March 3, 2014, and she had not become disabled since that date. AR 21-33. The ALJ did not address the DHO's note that Plaintiff was a "[p]otential Section 301 case." See AR 21-40. Plaintiff requested review of the ALJ's decision on November 6, 2015. AR 15-17. The Appeals Council declined Plaintiff's request for review on February 22, 2016. AR 1-6.
Plaintiff, then pro se, commenced this action for judicial review pursuant to 42 U.S.C. § 405(g). See Compl., Dkt. No. 1. She obtained counsel thereafter. Dkt. No. 11. On September 1, 2016, Plaintiff filed a Motion for Summary Judgment. Dkt. No. 12. On November 11, 2016, Defendant filed a Cross-Motion for Summary Judgment and Motion to Dismiss. Dkt. No. 17. After she filed her Reply to Defendant's Motion for Summary Judgment (see MSJ Reply, Dkt. No. 18), Plaintiff requested leave to file a proposed FAC, in which she asserts three claims for (1) judicial review under 42 U.S.C. § 1383(c)(3), (2) declaratory relief, and (3) mandamus. MTA, Ex. 1 ("Proposed FAC") ¶¶ 23-37.
This Court has jurisdiction to review final decisions of the Commissioner pursuant to 42 U.S.C. § 405(g). The ALJ's decision must be affirmed if the findings are "supported by substantial evidence and if the [ALJ] applied the correct legal standards." Holohan v. Massanari, 246 F.3d 1195, 1201 (9th Cir. 2001) (citation omitted). "Substantial evidence means more than a scintilla but less than a preponderance" of evidence that "a reasonable person might accept as adequate to support a conclusion." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002) (quoting Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995)). The court must consider the administrative record as a whole, weighing the evidence that both supports and detracts from the ALJ's conclusion. McAllister v. Sullivan, 888 F.2d 599, 602 (9th Cir. 1989). However, "where the evidence is susceptible to more than one rational interpretation," the court must uphold the ALJ's decision. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Determinations of credibility, resolution of conflicts in medical testimony, and all other ambiguities are to be resolved by the ALJ. Id.
Additionally, the harmless error rule applies where substantial evidence otherwise supports the ALJ's decision. Curry v. Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1990). A court may not reverse an ALJ's decision on account of an error that is harmless. Molina v. Astrue, 674 F.3d 1104, 1111 (9th Cir. 2012) (citing Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1055-56 (9th Cir. 2006)). "`[T]he burden of showing that an error is harmful normally falls upon the party attacking the agency's determination.'" Id. (quoting Shinseki v. Sanders, 556 U.S. 396, 409 (2009)).
Federal Rule of Civil Procedure 15 provides that a party may amend its pleading once as a matter of course within (1) 21 days after serving the pleading, or (2) 21 days after the earlier of service of a responsive pleading or service of a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1). Outside of this timeframe, "a party may amend its pleading only with the opposing party's written consent or the court's leave," though the court "should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "Although the rule should be interpreted with `extreme liberality,' leave to amend is not to be granted automatically." Jackson v. Bank of Haw., 902 F.2d 1385, 1387 (9th Cir. 1990) (citation omitted).
A court considers five factors in determining whether to grant leave to amend: "(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint." In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (quotation omitted). "Not all of the factors merit equal weight. As this circuit and others have held, it is the consideration of prejudice to the opposing party that carries the greatest weight. Prejudice is the touchstone of the inquiry under Rule 15(a)." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (citation omitted). "Absent prejudice, or a strong showing of any of the remaining [] factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Id. at 1052 (emphasis in original). "Denials of motions for leave to amend have been reversed when lacking a contemporaneous specific finding by the district court of prejudice to the opposing party, bad faith by the moving party, or futility of amendment." DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186-87 (9th Cir. 1987).
Under Federal Rule of Evidence 201(b), "[t]he court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Courts "may take judicial notice of court filings and other matters of public record." Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). But while courts may take judicial notice of undisputed matters of public record, they may not judicially notice "disputed facts stated in public records." Lee v. City of L.A., 250 F.3d 668, 690 (9th Cir. 2001) (emphasis in original).
In connection with her Motion for Summary Judgment, Plaintiff requests the Court take judicial notice of (1) a SSA billing statement dated March 22, 2016 concerning an SSI overpayment of $18,557.40, and (2) Social Security Program Operations Manual Systems ("POMS") DI 14510.003(A)(2) Field Office Procedures for Cases Involving Participation in Vocational Rehabilitation or Similar Program, effective April 29, 2016. RJN, Dkt. No. 12-1 & Exs. A-B. Defendant does not oppose the request. See Def.'s MSJ.
The Court takes judicial notice of the POMS, as it is a public document. The Court also takes judicial notice of the billing statement; however, it does so only for the fact of the documents and the existence of the statements therein.
Defendant raises the same argument in its Cross-Motion for Summary Judgment as it does in its Opposition to Plaintiff's Motion to Amend, namely, that the Court lacks jurisdiction to entertain either Motion. See Def.'s MSJ at 3-6; MTA Opp'n at 3-4. Given the overlapping argument, the Court addresses both Motions together.
As is relevant here,
42 U.S.C. § 1383(a)(3). To that end, a person may continue to receive benefits—also referred to as Section 301 payments or benefits—based on disability after her
20 C.F.R. § 416.1338(a).
In her Motion for Summary Judgment, Plaintiff argues the ALJ erred in not considering Plaintiff's eligibility for Section 301 benefits pursuant to 20 C.F.R. § 416.1338. Pl.'s MSJ at 7-11. She also seeks to amend the Complaint to add claims pertaining to her eligibility for Section 301 payments. Defendant argues this issue is not ripe for review—and consequently, amendment is futile—because the SSA has not made a final decision as to whether Plaintiff is eligible to receive Section 301 benefits. Def.'s MSJ at 3-6; MTA Opp'n at 3-4. In her Reply, Plaintiff confirms she "seeks review of the ALJ's decision not to address Ms. Tamayo[`s] eligibility for continued benefits under 42 U.S.C. § 1383(a)(6) after originally committing to deciding the issue (AR 57), and the Appeals Council's failure to address whether the ALJ's inaction constituted an abuse of discretion." MSJ Reply at 1 (emphasis in original).
The Court may review a final decision of the denial of Section 301 benefits. 42 U.S.C. § 1383(c)(3) ("The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title."); see 42 U.S.C. § 405(g). It is undisputed the ALJ did not discuss Plaintiff's eligibility for Section 301 benefits in her decision. See AR 21-40. Indeed, Plaintiff does not argue there was a final decision rendered on this issue. See Pl.'s MSJ; MSJ Reply. Plaintiff instead argues "the ALJ is empowered to rule on `all the issues brought out in the initial, reconsidered or revised determination that were not decided entirely in your favor.'" MSJ Reply at 2 (quoting 20 C.F.R. § 416.1446(a)). Plaintiff contends that the DHO noted Plaintiff may be eligible for Section 301 benefits (AR 115), and the ALJ agreed to consider her eligibility for that program (AR 56-57). MSJ Reply at 2.
But the Court's jurisdiction is expressly limited to "any final decision of the Commissioner of Social Security made after a hearing to which [Plaintiff] was a party[.]" 42 U.S.C. § 405(g) (emphasis added); see 42 U.S.C. § 1383(c)(3) ("The final determination of the Commissioner of Social Security after a hearing under paragraph (1) shall be subject to judicial review as provided in section 405(g) of this title to the same extent as the Commissioner's final determinations under section 405 of this title." (emphasis added)). The Court cannot determine whether a denial of benefits is based on legal error or substantial evidence if there was never a denial in the first place. See Smolen v. Chater, 80 F.3d 1273, 1279 (9th Cir. 1996) ("If we find that the ALJ's findings are based on legal error or are not supported by substantial evidence in the record, we may set aside the Commissioner's denial of Social Security insurance benefits.").
The ALJ did not abuse her discretion in declining to consider Plaintiff's eligibility for Section 301 benefits, as this issue was not within the ALJ's jurisdiction. See Pl.'s MSJ Reply at 2. Even if, as Plaintiff argues, Section 301 payments were "brought out" in the DHO's decision (see id.; AR 115), this does not mean the ALJ had the authority to determine whether Plaintiff is entitled to such benefits. Rather, POMS DI 14510.003 provides that "[t]he [Field Office] identifies cases involving participation in [Vocational Rehabilitation] or a similar program as a part of the medical continuing disability review (CDR) or Age 18 Redetermination process." RJN, Ex. B at 1. Indeed, when Plaintiff raised the issue of Section 301 eligibility before the Appeals Council, the Appeals Council also declined to address it, as "[i]ssues concerning benefit eligibility are handled by a different component." AR 1. The Appeal Council thus instructed Plaintiff to "[p]lease contact your local field office concerning benefit eligibility issues." Id. Plaintiff does not address this statement in her briefing, and she presents no argument to support her apparent contention the ALJ or the Appeals Council otherwise could have considered whether she was entitled to Section 301 benefits such that the ALJ's failure to do so constituted a legal error.
Moreover, Melissa Pollock, Management Analyst for the SSA, declares
Pollock Decl. ¶ 4, Dkt. No. 17-1. Plaintiff does not dispute this statement in her Reply, and nothing in the record suggests the ODO has since reached a decision on this issue.
In sum, the Court finds there has been no final determination as to whether Plaintiff is eligible for Section 301 benefits pursuant to 42 U.S.C. § 1383, and jurisdiction is therefore lacking. Accordingly, the Court
In a footnote, Plaintiff notes she "has since been assessed an $18,557 overpayment for the benefits received during her appeal." Pl.'s MSJ at 7 (citing RJN, Ex. A). She appears to argue the Court should find she is entitled to these benefits and the agency is not entitled to repayment. See id. at 11 ("The Court should find that Plaintiff was entitled to receive the SSI benefits she received during the pendency of her administrative appeals until she graduated from high school in December 2015.").
Defendant contends any argument about overpayment is not ripe for judicial review. Def.'s MSJ at 6. Defendant argues overpayment is a separate issue from Plaintiff's eligibility for Section 301 payments. Id. Moreover, when Plaintiff requested the continuation of benefits pending the outcome of the appeal, she acknowledged that she would be asked to repay her benefits if she lost her appeal. Id.; see AR 135. Plaintiff does not acknowledge her request for waiver in her Motion, and she does not address Defendant's overpayment arguments in her Reply. See MSJ Reply.
As with Plaintiff's Section 301 benefits, it appears the question of overpayment is still pending before the agency. Pollock declares Plaintiff has submitted a waiver of her overpayment, but the agency has not issued a decision on the waiver. Pollock Decl. ¶ 5. Again, Plaintiff does not dispute this in her Reply, and nothing in the record indicates there has been such a decision. See MSJ Reply; AR; Docket. Because there has been no final decision, the Court also lacks jurisdiction to consider the issue of overpayment.
Plaintiff does not contest the ALJ's finding that she is not disabled, nor does she address this issue in her Reply. See Pl.'s MSJ. Plaintiff has therefore waived any such argument. See Whitaker v. Astrue, 2016 WL 146069, at *2 n.1 (N.D. Cal. Jan. 13, 2016) (deeming as waived arguments not raised in plaintiff's motion for summary judgment or in opposition to defendant's cross-motion for summary judgment). The Court thus
As there has been no final determination as to Plaintiff's eligibility for Section 301 benefits—the sole issue raised in Plaintiff's Motion for Summary Judgment and the basis for the proposed amendment—the Court lacks jurisdiction to consider Plaintiff's Section 301-based claims at this juncture. Accordingly, the Court
The Court will issue a separate judgment.
20 C.F.R. § 416.987(a)(1).
