Van Zutphen v. Kijakazi

• Court: District Court, N.D. California
• Decided: March 22, 2024
• Docket: 3:22-cv-04192
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 JANE LINDA VAN ZUTPHEN Case No. 22-cv-04192-SI

8 Plaintiff, ORDER DENYING PLAINTIFF’S 9 v. MOTION FOR SUMMARY JUDGMENT AND GRANTING 10 MARTIN J. O’MALLEY,1 DEFENDANT’S CROSS-MOTION FOR SUMMARY JUDGMENT 11 Defendant. Re: Dkt. Nos. 36, 37 12

14 This is an appeal of a Social Security disability benefits decision, dating back more than a 15 decade. This case is the third time that plaintiff Jane Linda van Zutphen has appealed her disability 16 benefits denial to federal district court. See Van Zutphen v. Colvin, No. 15-cv-02429-SI (N.D. Cal. 17 filed June 6, 2015); Van Zutphen v. Saul, No. 18-cv-00057-SI (N.D. Cal. filed Jan. 4, 2018). The 18 previous two times she was represented by counsel. Ms. van Zutphen is now representing herself. 19 The Court has reviewed the administrative record (“AR”) and the briefs that the parties have 20 filed. See Dkt. Nos. 25, 36, 37, 46. Ms. van Zutphen seeks reversal of the unfavorable decision 21 issued on April 20, 2022, by Administrative Law Judge (“ALJ”) David LaBarre. She asks that the 22 Court remand this case for reinstatement of benefits. 23 For the reasons stated below, under 42 U.S.C. § 405(g), the Court AFFIRMS the decision of 24 the Commissioner of Social Security. The Court DENIES Ms. van Zutphen’s motion for summary 25 judgment and GRANTS defendant’s cross-motion for summary judgment. 26

27 1 In the case caption, the Court substitutes the name of Martin J. O’Malley, who is the current 1 2 3 BACKGROUND 4 As explained in the Court’s prior orders, Ms. van Zutphen’s injury traces back to five 5 automobile accidents and a work injury in 1993. She complained of neck, back, and leg injuries 6 which were aggravated when her then-employer refused to decrease her work hours or workload. 7 On March 11, 1999, Ms. van Zutphen was found disabled as of August 26, 1994, and entitled 8 to disability insurance benefits under Title II of the Social Security Act, due to “severe mental 9 depression and physical pain.”2 AR 4, 114.3 The Administrative Law Judge (“ALJ”) found that 10 plaintiff met Medical Listing 12.04 (Depressive disorder) of 20 C.F.R. Part 404, Appendix 1 to 11 Subpart P. AR 114. Ms. van Zutphen’s disability benefits continued until July 2009, when her 12 benefits ceased due to work activity. AR 4. 13 On October 26, 2011, Ms. van Zutphen filed for expedited reinstatement of benefits and was 14 awarded provisional benefits. Id. On March 5, 2012, the Social Security Administration (“SSA”) 15 determined that she was no longer disabled as of March 1, 2012. Id. Ms. van Zutphen filed for 16 reconsideration, and on July 16, 2012, the SSA found that her disability had ceased as of October 1, 17 2011. Id. Ms. van Zutphen requested a hearing before an ALJ. On September 25, 2014, ALJ Blume 18 issued a decision finding that Ms. van Zutphen was not disabled as of July 1, 2009. Id.; AR 122- 19 134. 20 After the Appeals Council denied Ms. van Zutphen’s request for review of the ALJ’s 21 decision, she filed suit in federal court. Van Zutphen v. Colvin, No. 15-cv-02429-SI (N.D. Cal. June 22 6, 2015). On September 26, 2016, this Court issued an order granting Ms. van Zutphen’s motion 23 for summary judgment and remanding the case for further proceedings. Id., Dkt. No. 20 (“2016 24 2 At the same time, Ms. van Zutphen applied for and was found eligible for Supplemental 25 Security Income (“SSI”) under Title XVI of the Social Security Act. The SSI application is not part of the administrative record in this case, and those benefits are not the subject of this appeal. 26

3 The administrative record at this point is something of a mess. The agency appears to have 27 renumbered the exhibits and the record multiple times, so most pages have several different exhibit 1 Order”). The Court found that the ALJ committed legal error in finding medical improvement at 2 step three of the continuing disability review because the ALJ’s decision failed to compare any 3 medical evidence that pre-dated the October 30, 2006 Comparison Point Decision (“CPD”)4 with 4 current medical evidence and addressed only Ms. van Zutphen’s depression when the initial 5 disability finding was based on depression and physical pain/fibromyalgia. Id. at 10. The Court 6 also found that the ALJ failed to give clear and convincing reasons for discrediting Ms. van 7 Zutphen’s testimony. Id. at 12-14. The Court remanded the case to the SSA for further proceedings. 8 The Appeals Council then vacated the Commissioner’s decision and remanded the case to 9 the ALJ for “the purpose of completing the record and holding a de novo hearing.” AR 163. The 10 SSA notified Ms. van Zutphen of a hearing to be held on September 6, 2017, and invited plaintiff 11 to submit additional evidence in support of her claim. AR 487-489. Ms. Van Zutphen confirmed 12 that she would attend the hearing. AR 516. On September 6, 2017, ALJ Blume held a rehearing. 13 Ms. van Zutphen did not appear, although her non-attorney representative was present. AR 519- 14 520. (As discussed below, she explains in her motion that she could not find the right building and 15 the hearing was over by the time she arrived.) On October 16, 2017, the ALJ issued an unfavorable 16 decision, again finding that Ms. van Zutphen’s disability ended as of July 1, 2009. AR 169-193 17 (“2017 ALJ Decision”). 18 Ms. van Zutphen appealed again to federal court. Van Zutphen v. Saul, No. 18-cv-00057-SI 19 (N.D. Cal. Jan. 4, 2018). On August 19, 2019, the Court issued an order granting in part and denying 20 in part both sides’ motions. Id., Dkt. No. 37 (“2019 Order”). The Court found that, in the October 21 2017 decision, the ALJ “properly compared the medical evidence prior to and at the CPD with 22 medical evidence after the CPD, and the finding of medical improvement is supported by substantial 23 evidence.” Id. at 11-12. The Court also found that, in contrast to the first ALJ decision, in this 24 decision “the ALJ provided clear and convincing reasons supported by substantial evidence for 25 rejecting plaintiff’s symptom testimony.” Id. at 17. However, the Court found that “substantial 26 4 The Comparison Point Decision as used here is the date of “the most recent favorable 27 medical decision that [the claimant was] disabled or continued to be disabled.” See 20 C.F.R. 1 evidence [did] not support the ALJ’s selection of July 1, 2009, as the date of medical improvement 2 . . . .” Id. at 12. The Court remanded the case “for the ALJ to reevaluate the cessation date and to 3 support that date with citations to substantial evidence in the record.” Id. at 13. 4 On February 23, 2022, ALJ LaBarre held a telephonic hearing. AR 4. Ms. van Zutphen 5 appeared with a non-attorney representative. Id. Steven S. Goldstein, M.D., an impartial medical 6 expert; David Glassmire, Ph.D., an impartial psychological expert; and Kathleen Macy-Powers, an 7 impartial vocational expert, also appeared and testified. Id.; AR 45, 47. On April 20, 2022, the ALJ 8 issued a 27-page written decision finding that Ms. van Zutphen’s disability ended on October 1, 9 2010, and that she has not become disabled again since that date. AR 4-30. 10 Ms. van Zutphen appealed ALJ LaBarre’s decision to federal district court. Dkt. No. 1. The 11 case was initially assigned to Magistrate Judge Thomas Hixson. Ms. van Zutphen’s motion was due 12 in February 2023, and Judge Hixson granted numerous extensions of the deadline.5 On July 17, 13 2023, Ms. van Zutphen filed her motion for summary judgment. Dkt. No. 36. Defendant filed a 14 cross-motion for summary judgment, along with a request for a one-day extension of defendant’s 15 filing deadline and a 30-day extension of Ms. van Zutphen’s reply deadline. Dkt. Nos. 37, 38. The 16 Court granted the extension requests. Dkt. No. 42. In the meantime, Judge Hixson issued a referral 17 to this Judge to determine whether this case was related to the previous Social Security appeals that 18 Ms. van Zutphen filed. Dkt. No. 39. This Judge found that the cases were related under Civil Local 19 Rule 13-2. Dkt. No. 40. This case was therefore reassigned to this Judge. The Court granted Ms. 20 van Zutphen another extension of the reply deadline. Dkt. No. 45. Ms. van Zutphen filed her reply 21 brief on October 31, 2023. Dkt. No. 46. This case is therefore ready for a ruling. 22 23 LEGAL STANDARD 24 I. Standard of Review 25 The Social Security Act authorizes judicial review of final decisions made by the 26 Commissioner. 42 U.S.C. § 405(g). A court’s review of a disability determination is limited, and 27 1 a final administrative decision may be altered “only if it is based on legal error or if the fact findings 2 are not supported by substantial evidence.” Sprague v. Bowen, 812 F.2d 1226, 1229 (9th Cir. 1987). 3 Substantial evidence is the relevant evidence in the entire record “which a reasonable person might 4 accept as adequate to support a conclusion.” Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 5 2001). Substantial evidence consists of “more than a mere scintilla but less than a preponderance.” 6 Young v. Sullivan, 911 F.2d 181, 183 (9th Cir. 1990). Courts “must consider the entire record as a 7 whole, weighing both the evidence that supports and the evidence that detracts from the 8 Commissioner’s conclusion, and may not affirm simply by isolating a specific quantum of 9 supporting evidence.” Garrison v. Colvin, 759 F.3d 995, 1009 (9th Cir. 2014) (quoting Lingenfelter 10 v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007)). “Where evidence is susceptible to more than one 11 rational interpretation,” the ALJ’s decision should be upheld. Burch v. Barnhart, 400 F.3d 676, 679 12 (9th Cir. 2005). The substantial evidence standard is a deferential standard of review. See Biestek 13 v. Berryhill, 587 U.S. ----, 139 S. Ct. 1148, 1154 (2019). 14 A district court may enter a judgment affirming, modifying, or reversing the decision of the 15 Commissioner, with or without remanding the cause for a rehearing. 42 U.S.C. § 405(g). A decision 16 of the ALJ will not be reversed for errors that are harmless. Burch, 400 F.3d at 679 (citing Curry v. 17 Sullivan, 925 F.2d 1127, 1131 (9th Cir. 1991)). 18 19 II. Continuing Disability Review 20 “Once a claimant has been found to be disabled, . . . a presumption of continuing disability 21 arises in her favor.” Bellamy v. Sec’y of Health & Human Servs., 755 F.2d 1380, 1381 (9th Cir. 22 1985) (citing Murray v. Heckler, 722 F.2d 499, 500 (9th Cir. 1983)); see also Medina v. Colvin, No. 23 14-CV-01967-DMR, 2015 WL 5448498, at *12 (N.D. Cal. Aug. 21, 2015) (discussing the Ninth 24 Circuit’s reaffirming this presumption after 1984 amendments to the Social Security Act). The 25 Commissioner periodically reviews whether the claimant continues to be entitled to benefits. See 26 42 U.S.C. § 423(f); 20 C.F.R. § 404.1594(a). 27 At continuing disability review, an ALJ conducts an eight-step inquiry: (1) Are you engaging in substantial gainful activity? If you are (and any applicable 1 trial work period has been completed), we will find disability to have ended (see paragraph (d)(5) of this section). 2 (2) If you are not, do you have an impairment or combination of impairments which 3 meets or equals the severity of an impairment listed in appendix 1 of this subpart? If you do, your disability will be found to continue. 4 (3) If you do not, has there been medical improvement as defined in paragraph (b)(1) 5 of this section? If there has been medical improvement as shown by a decrease in medical severity, see step (4). If there has been no decrease in medical severity, there 6 has been no medical improvement. (See step (5).) 7 (4) If there has been medical improvement, we must determine whether it is related to your ability to do work in accordance with paragraphs (b)(1) through (4) of this 8 section; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent 9 favorable medical determination. If medical improvement is not related to your ability to do work, see step (5). If medical improvement is related to your ability to 10 do work, see step (6). 11 (5) If we found at step (3) that there has been no medical improvement or if we found at step (4) that the medical improvement is not related to your ability to work, we 12 consider whether any of the exceptions in paragraphs (d) and (e) of this section apply. If none of them apply, your disability will be found to continue. If one of the first 13 group of exceptions to medical improvement applies, see step (6). If an exception from the second group of exceptions to medical improvement applies, your disability 14 will be found to have ended. The second group of exceptions to medical improvement may be considered at any point in this process. 15 (6) If medical improvement is shown to be related to your ability to do work or if one 16 of the first group of exceptions to medical improvement applies, we will determine whether all your current impairments in combination are severe (see § 404.1521). 17 This determination will consider all your current impairments and the impact of the combination of those impairments on your ability to function. If the residual 18 functional capacity assessment in step (4) above shows significant limitation of your ability to do basic work activities, see step (7). When the evidence shows that all 19 your current impairments in combination do not significantly limit your physical or mental abilities to do basic work activities, these impairments will not be considered 20 severe in nature. If so, you will no longer be considered to be disabled. 21 (7) If your impairment(s) is severe, we will assess your current ability to do substantial gainful activity in accordance with § 404.1560. That is, we will assess 22 your residual functional capacity based on all your current impairments and consider whether you can still do work you have done in the past. If you can do such work, 23 disability will be found to have ended. 24 (8) If you are not able to do work you have done in the past, we will consider whether you can do other work given the residual functional capacity assessment made under 25 paragraph (f)(7) of this section and your age, education, and past work experience (see paragraph (f)(9) of this section for an exception to this rule). If you can, we will 26 find that your disability has ended. If you cannot, we will find that your disability continues. 27 a finding under paragraph (f)(7) of this section about whether you can perform your 1 past relevant work. If we find that you can adjust to other work based solely on your age, education, and residual functional capacity, we will find that you are no longer 2 disabled, and we will not make a finding about whether you can do your past relevant work under paragraph (f)(7) of this section. If we find that you may be unable to 3 adjust to other work or if § 404.1562 may apply, we will assess your claim under paragraph (f)(7) of this section and make a finding about whether you can perform 4 your past relevant work. 5 20 C.F.R. § 404.1594(f). 6 7 ALJ DECISION 8 Following the rehearing directed by this Court, ALJ LaBarre applied the eight-step analysis 9 described in 20 C.F.R. § 404.1594 regarding plaintiff’s continuing disability status. 10 At step one, the ALJ determined that Ms. van Zutphen engaged in substantial gainful activity 11 as a ticket seller at games for the San Francisco Giants and Oakland A’s through 2019. AR 8-9. 12 The ALJ found that Ms. van Zutphen has the medically determinable impairments of 13 supraventricular tachycardia (“SVT”) and depressive disorder not otherwise specified since October 14 1, 2010. AR 11. 15 At step two, the ALJ determined that since October 1, 2010, Ms. van Zutphen has not had 16 an impairment or combination of impairments that meets or medically equals a Listing. AR 14. 17 The ALJ examined the criteria for Listing 4.05 (recurrent arrhythmias), Listing 3.02 (chronic 18 respiratory disorders), and Listing 12.04 (depressive disorders). 19 At step three, the ALJ found that medical improvement occurred as of October 1, 2010. AR 20 18. The ALJ incorporated the analysis contained in the prior ALJ decision and in the Court’s 2019 21 Order comparing the medical evidence at the CPD with the medical evidence after the CPD. Id. 22 At step four, the ALJ found Ms. van Zutphen’s “medical improvement is related to the ability 23 to work because, by October 1, 2010, the claimant’s CPD impairments(s) [sic] no longer met or 24 medically equaled the same listing(s) that was met at the time of the CPD (20 CFR 25 404.1594(c)(3)(i)).”6 AR 20. Because of this finding at step four, the ALJ skipped step five and 26 6 20 C.F.R. § 404.1594(c)(3)(i) states that, for claimants previously determined to be 27 disabled because they met a Listing, where “medical improvement has occurred and the severity of 1 proceeded to step six. See 20 C.F.R. § 404.1594(f)(4). 2 At step six, the ALJ found, in contrast to the previous decision, that plaintiff has continued 3 to have a severe impairment of SVT since October 1, 2010. See AR 20; see also AR 189 (2017 ALJ 4 Decision finding that Ms. van Zutphen did not have a severe impairment as of July 1, 2009). 5 At step seven, again in contrast to the prior ALJ decision, the ALJ found that: “Based on the 6 impairments present since October 1, 2010, the claimant has had the residual functional capacity to 7 perform medium work as defined in 20 CFR 404.1567(c) except that she must avoid hazards such 8 as unprotected heights and moving and dangerous machinery.” AR 20; see also AR 189 (2017 ALJ 9 Decision finding that as of July 1, 2009, Ms. van Zutphen had the residual functional capacity to 10 perform a full range of work at all exertional levels). ALJ LaBarre went on to find that since October 11 1, 2010, the claimant has been able to perform her past relevant work as a ticket seller. AR 28. 12 Although this step-seven finding could have ended the analysis, resulting in a finding that 13 plaintiff’s disability had ended, see 20 C.F.R. § 404.1594(f)(7), the ALJ moved to the next step and 14 discussed whether Ms. van Zutphen was also able to do other work given her residual functional 15 capacity and her age, education, and past work experience. The ALJ found that, considering Ms. 16 van Zutphen’s age, education, work experience, and residual functional capacity based on the 17 impairments present since October 1, 2010, Ms. van Zutphen has been able to perform a significant 18 number of jobs in the national economy and therefore her disability ended on October 1, 2010. AR 19 29-30. The ALJ found that Ms. van Zutphen has not become disabled again since that date. AR 30. 20 21 DISCUSSION 22 In her motion, Ms. Van Zutphen argues that she continues to be disabled and that her 23 disability has never ended. In response, defendant argues that the Court should uphold ALJ 24 LaBarre’s decision because the decision is supported by substantial evidence in the record and it is 25 not the Court’s role to substitute its own judgment for the ALJ’s. 26 Ms. van Zutphen makes a number of arguments in support of her motion. The Court will 27 1 address these arguments now. 2 3 1. Ms. van Zutphen argues that the Commissioner can’t seem to determine an 4 appropriate cessation date for her disability. She correctly notes that the Commissioner has come 5 up with three different cessation dates in her case: March 1, 2012 (after Ms. van Zutphen applied 6 for reinstatement of benefits); July 1, 2009 (in ALJ Blume’s 2014 and 2017 decisions); and October 7 1, 2010 (in ALJ LaBarre’s decision—the decision currently being challenged). Ms. van Zutphen’s 8 frustration is understandable, since she would have received a more favorable decision if she had 9 not challenged the Commissioner’s determination after she first applied for reinstatement. 10 However, the Court’s role now is solely to review the most recent decision by ALJ LaBarre. 11 As will be explained further throughout this Order, the Court finds that ALJ LaBarre’s April 2022 12 decision is supported by substantial evidence and is free from legal error. Moreover, ALJ LaBarre 13 explained that October 1, 2010, is the earliest date that Ms. van Zutphen could have been found 14 eligible for benefits, given that she applied for expedited reinstatement of benefits in October 2011. 15 See AR 5 (citing 20 C.F.R. § 404.1592f(a)). The Social Security regulations state that when a 16 claimant is eligible for reinstatement, the SSA will reinstate the benefits “with the earliest month, 17 in the 12-month period that ends with the month before you filed your request for instatement,” if 18 the claimant meets all the requirements for reinstatement. 20 C.F.R. § 404.1592f(a). This explains 19 why ALJ LaBarre’s decision does not discuss a possible cessation date any earlier than October 1, 20 2010. The Court finds no legal error in this calculation. The multiple cessation dates in the record, 21 while frustrating, do not create a reason in this case to overturn ALJ LaBarre’s decision. 22 23 2. Ms. van Zutphen argues that she was and is disabled because she was never able to 24 work a full-time 8-hour job, and her work was done on a seasonal basis. At Step 1 of the continuing 25 disability review, ALJ LaBarre found that Ms. van Zutphen engaged in substantial gainful activity 26 through 2019 because of her work as a ticket seller. AR 8-11. Because of this finding, Ms. van 27 Zutphen would not have been eligible for disability benefits at any time between October 2010 and 1 we will find that you are not disabled.”). It is important to note, therefore, that ALJ LaBarre’s entire 2 decision after Step 1 was just about whether Ms. van Zutphen was disabled in 2020 or later, since 3 her substantial gainful activity through 2019 meant that she was not disabled under the Social 4 Security rules. 5 Ms. van Zutphen does not argue that the dollar figures from her earnings that ALJ LaBarre 6 used were incorrect. (The Court has gone back to the record to confirm that the dollar figures the 7 ALJ used are accurate, and they are. See AR 711, 765.) Instead, she argues that this was seasonal 8 work that she did not perform full-time. But under the SSA rules, “substantial gainful activity” can 9 occur even if the claimant is not working full-time. The regulations state that “work may be 10 substantial even if it is done on a part-time basis . . . .” 20 C.F.R. § 404.1572(a). Social Security 11 Ruling 83-35, which was published in 1983, explains that the SSA has eliminated the concept of 12 “seasonal” work, meaning that the SSA no longer averages earnings from seasonal work over the 13 entire year when calculating whether work is “substantial.” SSR 83-35, 1983 WL 31257, at *1. 14 The SSA changed the rules because they found the seasonal work averaging was unfairly 15 advantaging seasonal workers over other workers. Id. Instead, in a situation like Ms. van Zutphen’s, 16 where someone is working for a certain period of time, the SSA will average the earnings over that 17 period of time, not over an entire year. ALJ LaBarre did just that and calculated that Ms. van 18 Zutphen’s average monthly earnings during the baseball season (through 2019) were higher than 19 the monthly limits set by the SSA.7 AR 8-11. The fact that Ms. van Zutphen worked on a seasonal 20 basis and not full-time does not support overturning the ALJ’s decision at Step 1, where the ALJ 21 properly applied the current SSA rules and correctly calculated the averages. 22 23 3. Ms. van Zutphen argues, “There is not medical evidence showing that my disabilities 24 changed.” Motion at 4. The Court already addressed this in its 2019 Order, when reviewing ALJ 25

26 7 The ALJ assumed a nine-month period of work during the baseball season. AR 10. Ms. van Zutphen does not challenge that as inaccurate, and it appears this may have been a generous 27 calculation on the ALJ’s part. The SSA Field Office calculated Ms. van Zutphen’s ticket selling 1 Blume’s 2017 decision. The 2019 Order states: “The Court finds that by comparing the medical 2 records before and after the [October 2006] CPD and by evaluating plaintiff’s physical and mental 3 conditions, the ALJ has corrected the legal error committed at step three in the previous 4 decision.[footnote] The ALJ properly compared the medical evidence prior to and at the CPD with 5 the medical evidence after the CPD, and the finding of medical improvement is supported by 6 substantial evidence.” 2019 Order at 11-12. ALJ LaBarre incorporated this portion of ALJ Blume’s 7 2017 decision into the 2022 decision. AR 18. For the same reasons as stated in the 2019 Order, the 8 Court finds that there is no error in the ALJ’s finding of medical improvement. See 2019 Order at 9 9-12. 10 11 4. Ms. van Zutphen argues that there is a gap in her medical records because when her 12 disability benefits were discontinued, the SSA cut off her Medicare and she was no longer able to 13 get continuous treatment from Kaiser. Motion at 4. At the hearing, she testified to the disruption 14 in her healthcare and discussed the new doctors she is seeing and the challenges she’s faced because 15 they don’t have her complete files. AR 89-91. Ms. van Zutphen does not identify precisely when 16 this gap in treatment occurred, and the ALJ’s decision does not identify any specific gap in the 17 records. Ms. van Zutphen had the opportunity, through her representative, to submit any additional 18 medical records for consideration five days prior to the hearing but did not do so. 19 Social Security regulations state that “[e]ach party must make every effort to ensure that the 20 administrative law judge receives all of the evidence and must inform us about or submit any written 21 evidence . . . no later than 5 business days before the date of the scheduled hearing. If you do not 22 comply with this requirement, the administrative law judge may decline to consider or obtain the 23 evidence,” unless certain exceptions apply. 20 C.F.R. § 404.935. At the hearing, Ms. van Zutphen’s 24 representative did not argue that any exception applied and he admitted that he did not submit a 25 letter within the five days. AR 6; see also AR 47. “Nothing . . . requires an ALJ to hold the record 26 open after a hearing for the submission of additional records.” Soc. Sec. Disab. Prac. § 3:46 (2023 27 ed.). Moreover, it appears that Ms. van Zutphen’s representative was not seeking to submit new 1 to be outstanding.”). 2 As ALJ LaBarre noted, there was almost no new medical information submitted for 3 consideration at the third hearing, with the exception of a one-page document titled “Claimant’s 4 Recent Medical Treatment” that appears to have been received by the SSA on October 4, 2021.8 5 AR 1004 (Ex. B32E). The ALJ reviewed and considered this document at multiple steps of the 6 review. AR 12, 23, 25. As the ALJ noted, the document lacks details such as month or year of the 7 reported hospitalization and is not accompanied by any of the underlying treatment records. AR 12, 8 25. The ALJ concluded, “As it stands, this evidence indicates at most the continuation of the pattern 9 of intermittent, sporadic treatment noted in the prior decision that is not in line with the alleged 10 severity of the claimant’s symptoms.” AR 25. The Court finds the ALJ’s reasoning supported by 11 substantial evidence in the record and will not overturn the decision based on any missing medical 12 records, especially because Ms. van Zutphen has not identified what those records are. The 13 administrative record at this point is more than 1500 pages, and it contains Ms. van Zutphen’s 14 records from her treatment at Kaiser as well as the updated statement of recent treatment that Ms. 15 van Zutphen submitted in October 2021. To the extent that there are additional records that could 16 have been added, Ms. van Zutphen and her representative had the opportunity to do so and did not. 17 18 5. Ms. van Zutphen argues that ALJ Blume committed error at the September 6, 2017 19 remand hearing because the hearing “was not considered a hearing if it was determined to last 1 20 minute in proceedings and now allowing the adequate time for reconsideration in an unbiased 21 fashion without the Plaintiff being present.” Motion at 4. The transcript from that hearing shows 22 the hearing began at 8:33 a.m. and ended at 8:34 a.m. AR 519-520. Ms. van Zutphen was not 23 present, but her representative was. Id. She states in her papers that she was not present because 24 she could not find the right building and the hearing was over when she arrived. Motion at 3. 25 The Court does not find this to be a reason to reverse ALJ LaBarre’s decision. It is 26 unfortunate that the second hearing took place without Ms. van Zutphen, but it was within the ALJ’s 27 1 right to proceed since Ms. van Zutphen’s representative was present. See HALLEX § I-2-4-25-D.2 2 (“the ALJ may determine that the claimant has constructively waived the right to appear at the 3 hearing if the representative is unable to locate the claimant”). Additionally, Ms. van Zutphen had 4 the opportunity to testify at the third hearing before Judge LaBarre and she did testify at length. 5 6 6. Finally, Ms. van Zutphen challenges ALJ LaBarre’s findings at Step 8. She argues 7 that ALJ LaBarre did not apply the “Grid Rules” and that if he had applied them he would have had 8 to find she was disabled. She also argues that “ALJ LaBarre relies too much on the Vocational 9 Expert’s opinion that I could perform certain jobs such as Dining Room Attendant, Kitchen Helper, 10 or Industrial Cleaner when there is absolutely no evidence in the record that I could perform any of 11 these jobs given my disabilities.” Motion at 5. 12 However, ALJ LaBarre did not need to reach Step 8, as his finding at Step 7 meant that Ms. 13 van Zutphen was not disabled. The ALJ found that, since October 1, 2010, Ms. van Zutphen had 14 the residual functional capacity (“RFC”) to perform medium work, except that she must avoid 15 hazards such as unprotected heights and moving and dangerous machinery.9 AR 20. In making this 16 finding, the ALJ gave “little weight” to the opinion of Dr. Rana, who did a consultative examination 17 in February 2012 and found Ms. van Zutphen was limited to light work. AR 25. The ALJ also 18 assigned little weight to several other doctors (Drs. Morgan, Pancho, and Goldstein) who found Ms. 19 van Zutphen limited to light work because those doctors relied largely on Dr. Rana’s opinion. AR 20 26. In the 2019 Order, this Court already considered and rejected Ms. van Zutphen’s challenge to 21 the weight given to Dr. Rana’s opinion.10 2019 Order at 14-15. For the same reasons as stated in 22 the 2019 Order, the Court finds no error in the weight ALJ LaBarre assigned to Dr. Rana’s opinion. 23 Overall, ALJ LaBarre’s RFC finding is extremely thorough and supported by substantial evidence 24

25 9 This is more restrictive than the prior ALJ decision. In 2017, ALJ Blume found Ms. van Zutphen was capable of “a full range of work at all exertional levels” but that she should not be 26 exposed to unprotected heights or to hazards such as moving machinery. AR 189.

27 10 Like ALJ LaBarre, ALJ Blume assigned “little weight” to Dr. Rana’s opinion. See AR 1 in the record. 2 Using this RFC finding the ALJ found at Step 7 that since October 1, 2010, Ms. van Zutphen 3 has been able to perform her past relevant work as a ticket seller. AR 28. This ends the continuing 4 disability review. At Step 7, the SSA regulations state, “If your impairment(s) is severe, we will 5 assess your current ability to do substantial gainful activity in accordance with § 404.1560. That is, 6 we will assess your residual functional capacity based on all your current impairments and consider 7 whether you can still do work you have done in the past. If you can do such work, disability will 8 be found to have ended.” 20 C.F.R. § 404.1594(f)(7). 9 At the third ALJ hearing, in February 2022, the vocational expert (“VE”) testified that an 10 individual of Ms. van Zutphen’s age, education, and work experience who is able to perform 11 medium exertion work activity, but who must avoid hazards such as unprotected heights and moving 12 and dangerous machinery, could perform their past relevant work as a ticket seller.11 AR 77. The 13 SSA regulations state, “We may use the services of vocational experts . . . to obtain evidence we 14 need to help us determine whether you can do your past relevant work, given your residual 15 functional capacity. A vocational expert or specialist may offer relevant evidence within his or her 16 expertise or knowledge concerning the physical and mental demands of a claimant’s past relevant 17 work, either as the claimant actually performed it or as generally performed in the national economy. 18 Such evidence may be helpful in supplementing or evaluating the accuracy of the claimant’s 19 description of his past work. In addition, a vocational expert or specialist may offer expert opinion 20 testimony in response to a hypothetical question about whether a person with the physical and 21 mental limitations imposed by the claimant’s medical impairment(s) can meet the demands of the 22 claimant’s previous work, either as the claimant actually performed it or as generally performed in 23 the national economy.” 20 C.F.R. § 404.1560(b)(2). The ALJ was entitled to rely on the VE’s 24 testimony in making his decision at Step 7. 25

26 11 The VE also testified that such an individual could perform their past relevant work as a ticket seller even if the individual was limited to light exertion work. AR 79. In other words, even 27 if the ALJ had accepted the opinions of Dr. Rana and the other doctors who said Ms. van Zutphen 1 Additionally, the ALJ did not misapply the Grids. In her reply brief, Ms. van Zutphen cites 2 Grid rule 202.04. Reply at 6. That rule applies to claimants of advanced age who are limited to 3 light work. As discussed above, the ALJ found Ms. van Zutphen limited to medium work, with the 4 limitation of avoiding hazards. The Grid rules for a claimant limited to medium work, of Ms. van 5 Zutphen’s age, education, and work experience, would lead to a finding of “not disabled.” See 20 6 C.F.R. Pt. 404, Subpt. P, App. 2, Rules 203.14, 203.21. The Court finds no error in the ALJ’s 7 decision. 8 9 7. To summarize, the Court has reviewed the record, including the prior ALJ decisions 10 and hearing transcripts, as well as the parties’ briefs, including the timeline of events contained in 11 Ms. van Zutphen’s reply brief. In her papers, Ms. van Zutphen describes the stress caused by her 12 physical and mental ailments, alongside the challenges of being a single parent to four children and 13 managing her Social Security appeals. It is clear that these have been stressful and difficult years. 14 However, this Court’s role is not to re-decide this case from the start. This Court’s role is limited 15 to reviewing the record and deciding whether the ALJ’s decision is free from legal error and 16 supported by substantial evidence. In other words, the Court must give deference to the ALJ’s 17 decision. Biestek, 139 S. Ct. at 1154. As already stated earlier in this Order, the Court finds that 18 ALJ LaBarre’s April 2022 decision is thorough and well reasoned, and that his finding that Ms. van 19 Zutphen is not disabled under Title II of the Social Security Act is supported by substantial evidence 20 in the record and is not based on legal error. For that reason, the Court affirms the decision of the 21 Commissioner. See Garrison, 759 F.3d at 1012 (“An ALJ can satisfy the ‘substantial evidence’ 22 requirement by ‘setting out a detailed and thorough summary of the facts and conflicting clinical 23 evidence, stating his interpretation thereof, and making findings.’”). 24 25 CONCLUSION 26 For the reasons stated above and for good cause shown, the Court AFFIRMS the decision of 27 the Commissioner of Social Security under 42 U.S.C. § 405(g). The Court DENIES Ms. van 1 summary judgment (Dkt. No. 37). 2 3 IT IS SO ORDERED. 4 Dated: March 22, 2024 5 6 SUSAN ILLSTON United States District Judge 7 8 9 10 11 12

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