Sara Beverly Lingard v. Nancy A. Berryhill, No. 8:2017cv01521 - Document 26 (C.D. Cal. 2020)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Autumn D. Spaeth. The decision of the Social Security Commissioner is AFFIRMED and the action is DISMISSED with prejudice. (see document for further details) (hr)
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Sara Beverly Lingard v. Nancy A. Berryhill Doc. 26 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 SARA B. L., an Individual, 12 Plaintiff, 13 v. Case No.: 8:17-0 1521 ADS MEMORANDUM OPINION AND ORDER 14 ANDREW M. SAUL, Com m issioner of Social Security, 15 Defendant. 16 17 18 I. IN TROD U CTION Plaintiff Sarah B. L.1 (“Plaintiff”), through her representative payee and the wage 19 earner Robert W. L. (“Representative”) challenges Defendant Andrew M. Saul2 20 Com m issioner of Social Security’s (hereinafter “Com m issioner” or “Defendant”) denial 21 22 23 24 1 Plaintiff’s nam e has been partially redacted in com pliance with Federal Rule of Civil Procedure 5.2(c)(2)(B) and the recom m endation of the Com m ittee on Court Adm inistration and Case Managem ent of the J udicial Conference of the United States. 2 The Com plaint, and thus the docket, do not nam e the Com m issioner of the Social Security. On J une 17, 20 19, Saul becam e the Com m issioner. Thus, he is autom atically substituted as the defendant under Federal Rule of Civil Procedure 25(d). -1Dockets.Justia.com 1 of her application for child’s insurance benefits prior to Novem ber 20 12. The issue 2 before the Court is whether the Adm inistrative Law J udge (“ALJ ”) erred in finding that 3 Plaintiff was not entitled to retroactive child insurance benefits dating back to her date 4 of adoption in 20 0 9. For the reasons stated below, the decision of the Com m issioner is 5 affirm ed, and this m atter is dism issed with prejudice.3 6 II. The parties filed a J oint Stipulation [Dkt No. 19] setting forth the following 7 8 STIPU LATED SU MMARY OF TH E CASE stipulated Sum m ary of the Case: On Novem ber 9, 20 0 7, [Plaintiff’s Representative] filed an internet application for retirement insurance benefits. In his application, one of the Social Security Adm inistration’s (SSA) prom pts was the following: 9 10 “If you need to discuss a particular question [to] the response you provided, please enter inform ation about it in the Rem arks box below. A Social Security employee will call . . . this after we receive your application. We m ay also contact you if we directed you . . . item in Rem arks (e.g., m arriage related issue). In addition use this area to provide . . . nam e of a person who can take a m essage for you.”4 11 12 13 14 [Plaintiff’s Representative] responded to that prom pt as follows: 15 “m y wife and I are in the process of adopting m y wife’s niece. That adoption should be final early next year. Will that affect Social Security benefits for either m e or her in the future?” 16 17 In a Notice of Award dated Novem ber 17, 20 0 7, [Plaintiff’s Representative] was inform ed he was entitled to m onthly retirem ent benefits beginning Novem ber 20 0 7. The letter did not answer [Plaintiff’s Representative’s] questions nor did [Plaintiff’s Representative] receive a phone call from the SSA. [Plaintiff’s Representative’s] wife, who is Plaintiff’s m aternal aunt, adopted the Plaintiff on April 17, 20 0 8. [Plaintiff’s Representative] adopted the Plaintiff on March 4, 20 0 9, and they becam e 18 19 20 21 22 23 24 3 The parties filed consents to proceed before the undersigned United States Magistrate J udge, pursuant to 28 U.S.C. §636(c), including for final J udgm ent. [Docket (“Dkt.”) Nos. 8, 21]. 4 The J oint Stipulation notes that “[t]he printing of the online application is incom plete, and several words are m issing at line breaks.” [Id. at p.1, n. 1]. -2- 1 parent and child under the law on that date, with all the rights and duties of the parent-child relationship. 2 3 4 5 6 7 [Dkt. No. 19 at p. 1]. The stipulated Sum m ary of the Case went on to state the procedural history of the case as follows: On May 27, 20 13, [Plaintiff’s Representative] filed an application for child’s insurance benefits for the Plaintiff. Based on that filing the SSA established a protective filing date of May 3, 20 13. On J une 25, 20 13, the Plaintiff was awarded child’s benefits beginning Novem ber 20 12. 8 9 10 11 On J uly 30 , 20 13, [Plaintiff’s Representative] filed a request for reconsideration of the Plaintiff’s benefits based on a claim of m isinform ation. [Plaintiff’s representative] asserted the m isinform ation established an earlier deem ed filing date and that Plaintiff’s eligibility date should be established retroactively to the date of her eligibility for benefits pursuant to 42 U.S.C. 40 2(j)(5), and she should be com pensated accordingly. 12 13 14 15 16 17 In a Notice of Reconsideration dated February 18, 20 14, SSA affirm ed the prior decision that Plaintiff’s date of entitlem ent to child’s benefits is Novem ber 20 12, and no earlier date is possible based on the filing date of May 3, 20 13 and six m onths of retroactivity. On April 15, 20 14, [Plaintiff’s Representative] filed a Request for Hearing asserting that the SSA’s response did not appropriately address his claim for representation. On J uly 28, 20 15 a hearing was held in front of the Honorable J ohn Kays, an Adm inistrative Law J udge. 18 A hearing was conducted on J uly 28, 20 15. 19 20 21 22 23 On August 27, 20 15 the Honorable J ohn Kays held that “the Plaintiff did not file, and cannot be deem ed to have filed, an application for child’s insurance benefits on the record of [Plaintiff’s Representative] at any tim e prior to May 3, 20 13; and that Plaintiff m et the conditions for entitlem ent to child’s insurance benefits effective Novem ber 20 12, but not prior thereto.” On October 29, 20 15 Plaintiff requested a review of J udge Kays’ unfavorable decision. 24 -3- On J une 29, 20 17 the SSA Appeal Council denied Plaintiff’s Request for Review. 1 2 On Septem ber 5, 20 17 the Plaintiff filed the instant action. 3 4 [Dkt. No. 19 at pp. 1-2]. 5 III. 6 STAN D ARD OF REVIEW Under 42 U.S.C. §40 5(g), a district court m ay review the Com m issioner’s decision 7 to deny benefits. A court m ust affirm an ALJ ’s findings of fact if they are supported by 8 substantial evidence and if the proper legal standards were applied. Mayes v. 9 Massanari, 276 F.3d 453, 458-59 (9th Cir. 20 0 1). “Substantial evidence” m eans m ore 10 than a m ere scintilla, but less than a preponderance; it is such relevant evidence as a 11 reasonable person m ight accept as adequate to support a conclusion.” Lingenfelter v. 12 Astrue, 50 4 F.3d 10 28, 10 35 (9th Cir. 20 0 7) (citing Robbins v. Soc. Sec. Adm in., 466 13 F.3d 880 , 882 (9th Cir. 20 0 6)). An ALJ can satisfy the substantial evidence 14 requirem ent “by setting out a detailed and thorough sum m ary of the facts and 15 conflicting clinical evidence, stating his interpretation thereof, and m aking findings.” 16 Reddick v. Chater, 157 F.3d 715, 725 (9th Cir. 1998) (citation om itted). 17 “[T]he Com m issioner’s decision cannot be affirm ed sim ply by isolating a specific 18 quantum of supporting evidence. Rather, a court m ust consider the record as a whole, 19 weighing both evidence that supports and evidence that detracts from the Secretary’s 20 conclusion.” Aukland v. Massanari, 257 F.3d 10 33, 10 35 (9th Cir. 20 0 1) (citations and 21 internal quotation m arks om itted). “’Where evidence is susceptible to m ore than one 22 rational interpretation,’ the ALJ ’s decision should be upheld.” Ryan v. Com m ’r of Soc. 23 Sec., 528 F.3d 1194, 1198 (9th Cir. 20 0 8) (citing Burch v. Barnhart, 40 0 F.3d 676, 679 24 (9th Cir. 20 0 5)); see Robbins, 466 F.3d at 882 (“If the evidence can support either -4- 1 affirm ing or reversing the ALJ ’s conclusion, we m ay not substitute our judgm ent for that 2 of the ALJ .”). The Court m ay review only “the reasons provided by the ALJ in the 3 disability determ ination and m ay not affirm the ALJ on a ground upon which he did not 4 rely.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 20 0 7) (citing Connett v. Barnhart, 340 5 F.3d 871, 874 (9th Cir. 20 0 3)). 6 IV. 7 GOVERN IN G REGU LATION S Under Section 20 2(d) of the Social Security Act, the child of an individual entitled 8 to retirem ent insurance benefits m ay receive child’s insurance benefits. 42 U.S.C. § 9 40 2(d)(1); see also 20 C.F.R. § 40 4.350 . However, an individual who qualifies for 10 benefits does not receive them autom atically. The Act m akes entitlem ent contingent 11 upon the filing of an application. 42 U.S.C. § 40 2(d)(1)(a); 20 C.F.R. § 40 4.350 (a)(3); 12 20 C.F.R. § 40 4.693. “The filing of an application is a prerequisite to the entitlem ent to 13 benefits, and benefits cannot be paid for periods earlier than the retroactive lim it 14 provided for in the Act.” Driver v. Heckler, 779 F.2d 50 9, 511 (9 th Cir. 1985) (citations 15 om itted). 16 An application is considered filed on the day it is received by an SSA em ployee. 17 20 C.F.R. §40 4.614(a). If an individual files an application for child’s benefits after the 18 m onth in which the individual first m eets all of the requirem ents (apart from the filing 19 requirem ent), that individual m ay receive “retroactive” benefits for a m axim um of six 20 m onths prior to the date of the application. 20 C.F.R. §40 4.621(a)(1)(ii). The SSA 21 regulations, however, provide that an application m ay be given an earlier “deem ed” 22 filing date as the result of “m isinform ation” by an SSA em ployee. 42 U.S.C. § 40 2(j)(5); 23 see also 20 C.F.R. §40 4.633. 24 -5- In order to avail oneself of an earlier deemed filing date due to “m isinform ation” 1 2 from the SSA, the following requirem ents m ust be satisfied: (1) The m isinform ation m ust have been provided to you by one of the [SSA’s] em ployees while he or she was acting in his or her official capacity as our em ployee . . . 3 4 (2) Misinform ation is inform ation which we consider to be incorrect, m isleading, or incom plete in view of the facts which you gave to the em ployee, or of which the em ployee was aware or should have been aware, regarding your particular circum stances . . . In addition, for us to find that the inform ation you received was incom plete, the em ployee m ust have failed to provide you with the appropriate, additional inform ation which he or she would be required to provide in carrying out his or her official duties. 5 6 7 8 9 (3) The m isinform ation m ay have been provided to you orally or in writing. 10 (4) The m isinform ation m ust have been provided to you in response to a specific request by you to us for inform ation about your eligibility for benefits or the eligibility for benefits of the person referred to in paragraph (b)(2)(i) of this section for which you were considering filing an application. 11 12 13 14 20 C.F.R. §40 4.633(c). 15 V. AN ALYSIS Plaintiff contends she was given m isinform ation when her Representative asked 16 17 Defendant if the prospective adoption would affect “his or her” benefits in the future 5 18 and Defendant failed to respond to her Representative’s question with a phone call, as 19 the internet application stated the Defendant would call in response to a question. 20 21 22 23 24 5 The wording of Plaintiff’s Representative’s question is vague. Plaintiff contends “his or her” benefits refers to her Representative and her own benefits. Defendant asserts that “his or her” refers to Plaintiff’s Representative and the Representative’s wife’s benefits. In other words, Defendant argues that Plaintiff’s Representative did not even ask Defendant how the prospective adoption would affect any potential benefits for Plaintiff. The Court finds the wording is too vague to determ ine whether the “her” at issue referred to the Plaintiff or the Representative’s wife and thus m akes no finding of error by the ALJ as to how he interpreted this phrase. -6- 1 Defendant contends that no m isinform ation was given as it was under no requirem ent 2 to telephone Plaintiff’s Representative and it did provide an answer to the posed 3 question in an inform ational pam phlet sent to Plaintiff’s Representative with his Notice 4 of Award letter. Plaintiff does not dispute that the pam phlet provides inform ation that 5 answers the question posed by Plaintiff’s Representative to Defendant. 6 A. Th e re is N o Erro r in th e ALJ’s Fin d in g o f N o Mis in fo rm atio n 7 The Court finds there was no legal error in the ALJ deciding that Plaintiff’s 8 Representative was not deterred from filing an earlier application for child’s insurance 9 benefits because of m isinform ation given by an em ployee of the SSA. Rather, there is 10 11 substantial evidence to support the ALJ ’s decision. The alleged “m isinform ation” at issue, as set forth by the ALJ in his decision, as 12 well as stated by the Plaintiff here, is that Plaintiff’s Representative did not receive an 13 answer to the question he posed in his internet application. The ALJ found, however, 14 that Plaintiff did receive an answer to the posed question through the inform ational 15 pam phlet provided to Plaintiff’s Representative with his Notice of Award letter. The 16 letter also referenced the enclosed pam phlet. (AR 40 -41). The pam phlet describing 17 benefits states, “if you becom e the parent of a child (including an adopted child) after 18 you began receiving benefits, let us know so we can decide whether the child is eligible 19 for benefits.” (AR 14). Plaintiff does not dispute that his letter referred to the pam phlet, 20 that he did in fact receive the pam phlet, or that the pam phlet contains such language. 21 Accordingly, the Court finds that there is substantial evidence in the record to support 22 the ALJ ’s finding that no m isinform ation was given to Plaintiff’s Representative. 23 24 Plaintiff contends that Defendant provided “incom plete” m isinform ation because the internet application stated that her Representative would receive a phone call in -7- 1 response to the internet inquiry, but no phone call was received by the Representative. 2 Here, no requirem ent can be found, nor does Plaintiff argue any requirem ent exists, that 3 an em ployee m ust m ake a phone call to an applicant posing a question on an internet 4 application. As the ALJ properly found, the Defendant answered Plaintiff’s 5 Representative question by enclosing an inform ational pam phlet with the Notice of 6 Award letter, which included the answer to the question posed. The ALJ disagreed with 7 Plaintiff’s argum ent and this Court finds no error with the ALJ ’s finding. 8 B. Plain tiff’s Argu m e n ts D o N o t Sh o w Le gal Erro r by th e ALJ 9 Plaintiff raises a num ber of argum ents in support of her claim that the ALJ 10 com m itted error in finding the Defendant did not provide m isinform ation. The Court 11 finds none of these argum ents persuasive in showing that substantial evidence does not 12 exist to support the ALJ ’s decision. 13 Plaintiff states that the SSA’s Program Operations Manual System s (POMS) GN 14 0 0 20 4.0 0 8, which sets forth policies regarding what constitutes m isinform ation in 15 accordance with 42 U.S.C. § 40 2(j)(5), allows Defendant to rectify situations where 16 m isinform ation deterred a claimant from filing. Plaintiff then m akes the sam e 17 argum ent that GN 0 0 20 4.0 0 8 allows for a retroactive earlier filing date to be applied 18 here because Defendant failed to telephone Plaintiff’s Representative with a response to 19 his posed question. As stated above, however, the ALJ was correct in finding no 20 incom plete or m isinform ation was provided to Plaintiff’s Representative. 21 Plaintiff also argues that the case of Hartzell v. Astrue, 741 F. Supp. 2d 645 (D. 22 N.J . 20 10 ) supports her argum ent that Defendant had a duty to allow for retroactive 23 child benefits when it was inform ed earlier that a later adopted child m ay be eligible for 24 benefits. The District Court in the Hartzell case, however, stated that because -8- 1 “Plaintiff’s m other never inform ed any SSA em ployee about her son,” the Plaintiff had 2 not shown that the SSA failed to abide by the regulations, and therefore found Plaintiff 3 was not entitled to any retroactive benefits. Id. At 650 -51. The case did not m ake any 4 finding as to the SSA’s obligations when it is asked about a prospective (or hypothetical) 5 adoption. Here, the ALJ specifically referenced Plaintiff’s reliance on Hartzell and 6 found it to be unpersuasive. (AR 13-14). The Court finds no error by the ALJ in this 7 finding. 8 9 Plaintiff further argues that because Code of Federal Regulation Section 416.351(e) states that general inform ation pam phlets cannot constitute satisfactory 10 proof that m isinform ation was given, it should not constitute satisfactory proof to 11 absolve Defendant of prior m isinform ation. First, as already discussed, the Court finds 12 no legal error in the ALJ ’s finding that there was no prior m isinform ation. Second, 13 Plaintiff provides no law to support this argum ent. Plaintiff’s only argum ent in support 14 of this contention is that “[a]llowing inform ation found within a pam phlet to alleviate 15 prior m isinform ation when it can’t even be used as evidence of m isinform ation does not 16 seem in step with the [CFR 416.351(e)(1)].” [Dkt. No. 19, p. 7]. The Court does not find 17 this argum ent persuasive. 18 19 20 21 22 23 24 -9- 1 2 3 VI. ORD ER For the reasons stated above, the decision of the Social Security Com m issioner is AFFIRMED and the action is DISMISSED with prejudice. 4 5 DATE: March 4, 20 20 6 7 / s/ Autum n D. Spaeth THE HONORABLE AUTUMN D. SPAETH United States Magistrate J udge 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 -10 -
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