Judge Mary H. Strobel, Case 21STCP01114 2022-08-30 Tentative Ruling

Petitioner Sandra L. Suttle (“Petitioner”) petitions for a writ of administrative mandate directing Respondent County of Los Angeles (“Respondent” or “County”) to set aside the December 12, 2020 decision of hearing officer Robert Klepa, which upheld County’s determination that Petitioner was not entitled to further long-term disability benefits under the County of Los Angeles Long-Term Disability and Survivor Benefit Plan (“the County LTD Plan” or “the Plan”). Petitioner also seeks a writ directing Respondent to pay her long-term disability benefits under the County LTD Plan starting December 23, 2019, the day Respondent ceased paying disability benefits to her.

Petitioner’s Reply Request for Judicial Notice (“RJN”), Exhibits 1-3 – Denied. The request was improperly made for the first time in reply. (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.) Also, these exhibits constitute extra-record evidence. Petitioner has not moved to augment the record pursuant to CCP section 1094.5(e). A request for judicial notice cannot be used to circumvent the rules constraining the admission of extra-record evidence. (Ballona Wetlands Land Trust v. City of Los Angeles (2011) 201 Cal.App.4th 455, 475, fn. 10.)

This writ petition arises from the termination of Petitioner’s long-term disability (“LTD”) benefits under the County of Los Angeles Long-Term Disability and Survivor Benefit Plan (“the County LTD Plan” or “the Plan”), the terms and conditions of which are set forth in Chapter 5.38 of the Los Angeles County Code. Because they are important to the court’s ruling on the writ petition, the court sets forth the relevant ordinances at the onset:

Section 5.38.020(A) of the County’s Code specifies the payment of disability benefits, as follows: “An eligible employee shall begin accruing a basic monthly benefit on the first day following the expiration of the qualifying period. Except as otherwise herein provided, such benefit shall be paid as long as the eligible employee's total disability continues.”

Section 5.38.020(D) states, in relevant part, that “Payment of the basic monthly benefit shall cease or not commence upon the occurrence of the first of the following events: … Cessation of total disability, including denial, or termination of, Federal Social Security disability benefits at any time after 24 consecutive months of eligibility for benefit payments.”

Section 5.38.030(B), which governs the application for disability benefits, states in pertinent part that the employee “shall be required to apply for disability benefits under the Federal Social Security Act and to provide the county with verification of such application within 30 days after applying for disability benefits under this Plan.”

Section 5.38.030(E)(2) states: “Total disability shall in all cases be determined by the chief executive officer, except that any final decision of the Social Security Administration concerning a claim for disability benefits under the Federal Social Security Act shall be conclusive and binding upon all parties.”

"Qualifying Period" means that a qualifying period shall be required with respect to any one period of disability and shall be a continuous period equal to the six months, commencing with the first day on which an eligible employee is absent from work due to a total disability, and during which he or she remains totally disabled except as provided below; however, this period shall not include any time prior to the operative date of the ordinance codified in this chapter. If the eligible employee ceases to be totally disabled and returns to work for less than an aggregate of 30 days during a qualifying waiting period, any such cessation of total disability shall not interrupt continuity or extend the duration of the qualifying waiting period used to determine the first day on which benefits commence, provided that the successive absences during the qualifying waiting period are due to the same cause. In addition, the continuity of the qualifying waiting period shall not be interrupted, nor shall the qualifying waiting period be extended, merely because an eligible employee incurs a disability during such waiting period that arises from a different and unrelated cause than that which initially caused the eligible employee to be absent from work as long as the eligible employee does not return to active employment at any time during the six months commencing with the first day on which the eligible employee was first absent from work due to a total disability. Notwithstanding the foregoing, the duration of a qualifying waiting period may be extended to a waiting period of more than six months pursuant to Section 5.38.030B.

"Total Disability." During the qualifying period, and during the subsequent 24-month period for which an employee might be eligible to receive benefits under this Plan, "total disability" means the complete and continuous inability and incapacity of the employee to perform the duties of his or her position with the county. After the expiration of 24 consecutive months of eligibility for benefit payments, total disability means that the employee is disabled within the meaning of the Federal Social Security Act and is eligible to receive or is receiving disability benefits under the Federal Social Security Act; provided, however, that for an employee who makes timely application for disability benefits under the Federal Social Security Act and who has not received a final determination regarding disability under that Act, total disability (for the period prior to the date on which a final determination is made regarding disability) shall mean the complete and continuous inability and incapacity of the employee to perform the duties of his or her position with the county. An employee who is not insured for disability benefits (such as lacking sufficient quarters of covered employment) under the Federal Social Security Act shall be considered totally disabled at the end of the 24-month period of eligibility for benefit payments and during the continuance thereafter of the disability if he or she is disabled within the meaning of Section 223(d) of the Federal Social Security Act.

In June 2017, Petitioner ceased work for the County as a court reporter due to pain in her neck, hands, fingers, and left arm. (AR 3, 13, 139.) County’s Claims Administrator, Sedgwick Claims Management Services (“Sedgwick” or “Claims Administrator”) approved Petitioner’s claim for long-term disability and she received such benefits from December 23, 2017, through December 22, 2019. (AR 3, 13.)

On or around April 9, 2018, Petitioner submitted her initial application to the Social Security Administration (“SSA”) for Social Security Disability Benefits. On September 20, 2018, the SSA denied Petitioner’s claim for Social Security Disability Benefits, finding that she was not disabled to the point where she could not find substantial work. (AR 21, 100, 121-125.)

On November 15, 2018, Petitioner administratively appealed SSA’s decision. (AR 21, 100, 126.)

On December 22, 2019, Petitioner’s 24 months of long-term disability benefits expired. (AR 21, 62.) On January 3, 2020, Sedgwick informed Petitioner that she was not eligible for LTD benefits beyond the 24-month period she received them because the SSA denied her claim and Sedgewick had not been informed of any reversal of the SSA decision. (AR 63.)

On May 14, 2020, a telephonic hearing took place on Petitioner’s appeal of the SSA decision before an administrative law judge of the SSA. (AR 88, 96, 100.) On May 26, 2020, Petitioner received a “partially favorable” decision from this administrative law judge of the SSA. (See AR 96-111) While the administrative law judge determined that she was disabled, the administrative law judge held that Petitioner was not disabled prior to May 14, 2020. (AR 88, 111.) The decision was written on letterhead of the “Social Security Administration” and indicated that Petitioner could further appeal to the Appeals Council, Office of Disability Adjudication and Review, which appears to be part of the SSA. (AR 96.)

On June 24, 2020, Sedgwick informed Petitioner that her LTD benefits were still denied, despite the partially favorable decision in her SSA administrative appeal. (AR 74-78.)

Petitioner sought the administrative hearing provided for by Section 5.38.030 of the Los Angeles County Code. (AR 69, 75-76, 79, 148-151.) The administrative hearing went forward on November 2, 2020, before hearing officer Robert Klepa. (AR 4.)

On December 12, 2020, the hearing officer issued a written decision in favor of the County, and adverse to Petitioner, on the issue of whether Petitioner was entitled to long-term disability benefits under the County LTD Plan after December 22, 2019. (AR 2-17.)

In their writ briefs, neither party has challenged the following summary of the evidence and procedural history provided by the hearing officer:

On April 9, 2018, Suttle filed a claim for benefits with the Social Security Administration (S.S.A.) (Sedgwick Pre-Hearing Statement). On September 20, 2018, Suttle’s S.S.A. claim was denied (Id.). On November 15, 2018, the S.S.A.’s denial was appealed by Suttle (Id.). On May 26, 2020, the appeal was granted in part, finding that Suttle was disabled under the S.S.A.’s rules on and after May 14, 2020, despite having a disability onset date of January 31, 2019 (Id. and Exhibit 6). Based on the S.S.A.’s last determination, the County denied Suttle’s claim for additional LT.D. benefits ….

Both Suttle and the County agree that Suttle was disabled from her County position as a court reporter on and after December 22, 2019 (Anselmo and Suttle hearing testimony). Both further agreed that the S.S.A. found that Suttle could not perform her County duties as a court reporter on and after January 31, 2019 (Exhibit 6, SSA decision, page 9 of 12). In addition, both agreed that Suttle was only found to be disabled for all purposes under S.S.A. regulations on and after May 14, 2020 (Id., page 12 of 12.)

All of the evidence submitted at Suttle’s LTD hearing shows that on July 20, 2020, Suttle appealed the S.S.A.’s May 26, 2020 decision finding her to be disabled under their rules only from May 14, 2020, onward. Suttle’s S.S.A. appeal of this decision was denied on October 26, 2020, and Suttle had 60 days from that denial to request a further review of that decision by a judicial branch court (Exhibit 5; Suttle testimony; and Anselmo’s agreement that Suttle’s S.S.A. appeal was denied, that Suttle intended to file a court case further appealing that decision, and that the 60-day window to file this court case was then pending).

The hearing officer denied Petitioner’s administrative appeal based on the following interpretation of the County LTD Plan:

[T]he hearing officer determined that an LTD benefit recipient (recipient) is expected to file an application with the S.S.A. prior to but no later than the end of, that recipient’s initial 24-month LTD benefit payment period (period). If the recipient fails to do so, s/he can still receive LTD benefits for the period, but not thereafter. If s/he files the expected application and as a result, is determined to be eligible for benefits under the Federal Social Security Act, then LTD benefits must be paid to that recipient during that period and once it ends. If the application is denied and that decision is not overturned on appeal prior to the end of the period, then no further benefits are payable. The recipient is therefore bound by the highest level of decision in effect at the time the period ends, whether it’s the S.S.A.’s initial decision on the application, a decision reviewing that initial decision on appeal, or a decision by a federal court reviewing the earlier S.S.A. determination(s).

Alternatively, if the application is filed but not decided by the S.S.A. prior to the end of the period, then benefits will be paid after the period ends, as long as the recipient continues to be disabled from his/her County position and the S.S.A. has not yet rendered its decision. The S.S.A.'s subsequent decision on whether the recipient is eligible for benefits under the Federal Social Security Act, will in turn determine whether the recipient can continue to receive L.T.D. benefits after that point in time. (AR 16.)

The hearing officer then applied this interpretation to the facts of this case, as follows:

The S.S.A.'s initial determination in Suttle’s case was that she was not disabled under their rules. While Suttle successfully appealed this finding, her appeal was not granted until May 26, 2020, approximately five months after her 24-month benefit period ended on December 22, 2019. Consequently, the S.S.A. decision in effect at the time Suttle's 24-month benefit period ended was that Suttle was not disabled under S.S.A. rules. As Suttle submitted her S.S.A. application during her 24- month benefit period and the S.S.A’s “final determination" on this application (for L.T.D. purposes) was that Suttle was not disabled under S.S.A. rules, Suttle was barred from receiving LTD benefits after her benefit period ended on December 22, 2019. (AR 17.)

On April 13, 2021, Petitioner filed this petition for writ of administrative mandate challenging the December 12, 2020, administrative decision. Respondent has answered.

On April 19, 2022, the court denied Petitioner’s motion for order remanding the case or, in the alternative, to augment the administrative record.

On April 28, 2022, Petitioner filed her opening brief in support of the petition. The court has received Respondent’s opposition, Petitioner’s reply, and the administrative record.

On July 15, 2022, the court issued a tentative ruling and held a hearing on the writ petition. After oral argument, the court continued the hearing to August 30, 2022, and ordered the parties to file “[s]imultaneous briefs … addressing the court's interpretation of the LTD, and its preliminary conclusions that there was not a final determination regarding disability under the Act at the end of the 24-month period and that there was a final determination regarding disability under the Act on October 20, 2020.”

Under CCP section 1094.5(b), the pertinent issues are whether the respondent has proceeded without jurisdiction, whether there was a fair trial, and whether there was a prejudicial abuse of discretion. An abuse of discretion is established if the agency has not proceeded in the manner required by law, the decision is not supported by the findings, or the findings are not supported by the evidence. (CCP § 1094.5(b).)

Because Petitioner’s disability benefits concern a fundamental vested right, the court exercises its independent judgment on the record. (See Bixby v. Pierno (1971) 4 Cal.3d 130, 143 (Bixby); Frink v. Prod (1982) 31 Cal.3d 166 (1982); Lozano v. Unempl. Ins. Appeals Bd. (1982) 130 Cal.App.3d 749, 754.) Under the independent judgment test, “the trial court not only examines the administrative record for errors of law, but also exercises its independent judgment upon the evidence disclosed in a limited trial de novo.” (Bixby, supra, at 143.) The court must draw its own reasonable inferences from the evidence and make its own credibility determinations. (Morrison v. Housing Authority of the City of Los Angeles Board of Commissioners (2003) 107 Cal.App.4th 860, 868 (Morrison).) “In exercising its independent judgment, a trial court must afford a strong presumption of correctness concerning the administrative findings, and the party challenging the administrative decision bears the burden of convincing the court that the administrative findings are contrary to the weight of the evidence.” (Fukuda v. City of Angels (1999) 20 Cal.4th 805, 817.)

The petitioner seeking administrative mandamus has the burden of proof and must cite to the administrative record to support its contentions. (See Bixby v. Pierno (1971) 4 Cal. 3d 130, 143; Steele v. Los Angeles County Civil Service Commission, (1958) 166 Cal. App. 2d 129, 137; Alford v. Pierno (1972) 27 Cal.App.3d 682, 691.)

A reviewing court “will not act as counsel for either party to an appeal and will not assume the task of initiating and prosecuting a search of the record for any purpose of discovering errors not pointed out in the briefs.” (Fox v. Erickson (1950) 99 Cal.App.2d 740, 742; Nelson v. Avondale HOA (2009) 172 Cal.App.4th 857, 862-863 [argument waived if not raised]; Pfeifer v. Countrywide Home Loans, Inc. (2012) 211 Cal.App.4th 1250, 1282 [court will not make the parties’ arguments for them].)

“‘On questions of law arising in mandate proceedings, [the court] exercise[s] independent judgment.’ …. Interpretation of a statute or regulation is a question of law subject to independent review.” (Christensen v. Lightbourne (2017) 15 Cal.App.5th 1239, 1251.) “A challenge to the procedural fairness of the administrative hearing is reviewed de novo on appeal because the ultimate determination of procedural fairness amounts to a question of law.” (Nasha L.L.C. v. City of Los Angeles (2004) 125 Cal.App.4th 470, 482.)

The hearing officer concluded that the LTD recipient is “bound by the highest level of decision in effect at the time the [24-month] period ends, whether it’s the S.S.A.’s initial decision on the application, a decision reviewing that initial decision on appeal, or a decision by a federal court reviewing the earlier S.S.A. determination(s).” (AR 16.) Petitioner contends that the hearing officer erred in this interpretation of the County LTD Plan. (Opening Brief (“OB”) 4-5, 11-13; Reply 2-5.) Specifically, Petitioner contends that her entitlement to LTD benefits beyond the 24-month period should be based on “the final decision available to a Social Security claimant at the end of the multiple levels of appeal available under the Social Security system.” (OB 4.) As a third interpretation, Respondent argues that entitlement to LTD benefits after the 24-month period ends is determined by the final decision of “the SSA, and not an administrative law judge or a court of law.” (Oppo, p 13.) The court finds none of these interpretations persuasive.

The petition raises a question of statutory interpretation. “The rules governing statutory construction are well settled. We begin with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative intent. [Citations.] To determine legislative intent, we turn first to the words of the statute, giving them their usual and ordinary meaning. [Citations.] When the language of a statute is clear, we need go no further. However, when the language is susceptible of more than one reasonable interpretation, we look to a variety of extrinsic aids, including the ostensible objects to be achieved, the evils to be remedied, the legislative history, public policy, contemporaneous administrative construction, and the statutory scheme of which the statute is a part.” (Nolan v. City of Anaheim (2004) 33 Cal.4th 335, 340.)

When interpreting a statute, the court must construe the statute, if possible to achieve harmony among its parts. (People v. Hull (1991) 1 Cal. 4th 266, 272; Legacy Group v. City of Wasco (2003) 106 Cal.App. 4^th 1305, 1313.) “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.)

To the extent “purely legal issues involve the interpretation of a statute an administrative agency is responsible for enforcing, [the court] exercise[s] [its] independent judgment, ‘taking into account and respecting the agency's interpretation of its meaning.’” (Housing Partners I, Inc. v. Duncan (2012) 206 Cal.App.4th 1335, 1343; see also Yamaha Corp. of America v. State Bd. Of Equalization (1998) 19 Cal.4th 1, 11.) How much weight to accord an agency's construction is “situational,” and depends on the circumstances. (See American Coatings Assn. v. South Coast Air Quality Management Dist. (2012) 54 Cal.4th 446, 461-462.)

Section 5.38.020(A) of the County’s Code states that the basic disability benefit “shall be paid as long as the eligible employee's total disability continues.” As the parties agree, the definition of “Total Disability” is important. As relevant to this writ petition, this definition has two subparts which may be separated as follows:

(1) After the expiration of 24 consecutive months of eligibility for benefit payments, total disability means that the employee is disabled within the meaning of the Federal Social Security Act and is eligible to receive or is receiving disability benefits under the Federal Social Security Act;

(2) provided, however, that for an employee who makes timely application for disability benefits under the Federal Social Security Act and who has not received a final determination regarding disability under that Act, total disability (for the period prior to the date on which a final determination is made regarding disability) shall mean the complete and continuous inability and incapacity of the employee to perform the duties of his or her position with the county. (§ 5.38.010(Q).)

Also relevant is section 5.38.030(E)(2), which states: “Total disability shall in all cases be determined by the chief executive officer, except that any final decision of the Social Security Administration concerning a claim for disability benefits under the Federal Social Security Act shall be conclusive and binding upon all parties.”

As an initial matter, the court must determine what constitutes a “final determination regarding disability under the Act.” The hearing officer found that petitioner would be bound by “the highest level of decision in effect at the time the [24-month] period ends, whether it’s the S.S.A.’s initial decision on the application, a decision reviewing that initial decision on appeal, or a decision by a federal court reviewing the earlier S.S.A. determination(s).” This interpretation conflicts with the plain language or the ordinance. The definition of “Total Disability” does not state that, after the 24-month period, entitlement to continued total disability is based on whatever determination of total disability then exists, whether final or not. If that were the intent of the ordinance, the word “final” would be superfluous.

There is no express language in the ordinances that supports the hearing officer’s position that the “final determination” or “final decision” regarding eligibility under the Act must be made during the 24-month period. Indeed, the second relevant part of section 5.38.010(Q), quoted above as paragraph (2), expressly states that if a timely application for disability benefits under the Act has been made, “a final determination regarding disability under that Act” may be made after the 24-month period ends. In that case, the ordinance provides an alternative method of determining “total disability” “for the period prior to the date on which a final determination is made regarding disability.” Because the ordinances provide for a method to determine “total disability” after the 24-month period while a “final determination” or “final decision” of eligibility under the Act is pending, it logically follows that such “final determination” or “final decision” need not be made within the 24-month period.

In opposition, Respondent does not defend the hearing officer’s interpretation. Rather, Respondent presents an entirely different interpretation of the County LTD Plan, which conflicts with the one made by the hearing officer. While the hearing officer opined that the “highest level” decision during the 24-month period controls, Respondent contends that “[t]he LTD Plan is clear that the ‘final decision’ concerning a claim for Social Security benefits [is] made by the SSA, and not an administrative law judge or a court of law.” (Oppo. 13 [bold italics added].) Respondent argues that the SSA decision was final on September 20, 2018, and that Petitioner’s subsequent administrative appeals are not relevant.

Respondent’s new interpretation is unpersuasive. (Reply 2-5.) Respondent relies on language from section 5.38.030(E)(2), which states that “[t]otal disability shall in all cases be determined by the chief executive officer, except that any final decision of the Social Security Administration concerning a claim for disability benefits under the Federal Social Security Act shall be conclusive and binding upon all parties.” (Oppo. 13.) The ordinance does not state that the “final decision” of the SSA only includes the initial decision by the SSA.

By contrast, Petitioner argued in the opening brief and reply that the “final determination” is not made until after Petitioner has exhausted all administrative appeals and all judicial appeals of the determination regarding disability.

The hearing officer, the Petitioner, and the Respondent all fail to analyze what constitutes a final determination of eligibility under the Act. The court finds that “final determination” within the meaning of the County LTD Plan means the final administrative decision. That interpretation harmonizes the words “final determination regarding disability under [the] Act” in section 5.38.010(Q) with section 5.38.030(E) which provides that “any final decision of the Social Security Administration” concerning disability under the Act is “conclusive and binding upon all parties.” However, as opposed to Respondent’s position, the court does not find that the “final administrative decision” precludes consideration of administrative appeals.

There are several ways in which the administrative decision may become final. If an applicant receives an initial determination regarding disability from the SSA and does not administratively challenge that decision, then the decision is final as to that applicant. By contrast, if an applicant timely files administrative appeals, the decision is final at the end of the administrative process. While an applicant may further challenge the SSA decision in court, the administrative decision remains final until reversed or modified by a court of law. This conclusion is consistent with principles of administrative law. A party may only seek judicial review of a final decision of an administrative body under administrative mandate (CCP section 1094.5.) Petitioner presents no authority that an administrative determination is no longer final once judicial review is sought.

This conclusion is also consistent with the reasoning employed by the Court of Appeal in Johnson v. Comm’r of Soc. Sec. (6^th Cir. 2004) 97 Fed.Appx. 526. While an unpublished federal circuit decision and not binding on this court, the court finds the reasoning persuasive. In that case, the Court of Appeal considered when an administrative decision regarding eligibility for social security disability benefits become final. That Court stated:

“In order to obtain judicial review, an initial determination on a claim must first be made by the Commissioner. Following the initial determination, a dissatisfied claimant may seek reconsideration. See 20 C.F.R. §§ 404.909, 404.920. After reconsideration, a hearing before an administrative law judge (ALJ) may be requested. See 20 C.F.R. §§ 404.933, 404.936, 404.955. After the ALJ has issued a decision, further review may be sought before the Appeals Council. Only after the Appeals Council has issued a decision is there a "final decision" by the Commissioner within the meaning of § 405(g). Once a final decision has been made, the claimant may then file an action to review the Commissioner's decision before the appropriate federal district court.” (Id. at 527-28.)

In her supplemental brief, Petitioner states that the court’s interpretation of “final determination” from the County LTD Plan is “correct.” Petitioner has seemingly abandoned her argument that the “final determination” is not made until after the applicant has exhausted all judicial appeals of the determination regarding disability. Petitioner cites a Ninth Circuit decision that, like Johnson, supports the conclusion that a “final determination” or “final decision” of the SSA is the one made at the end of the administrative process. (See Matlock v. Sullivan (9^th Cir. 1990) 908 F.2d 429, 493 [“The regulations define reviewable ‘final decisions’ as decisions by the Appeals Council either reviewing or denying review of an ALJ decision”].)

Respondent argues in its supplemental brief that the court’s interpretation of the County LTD Plan would render section 5.38.020(D) ineffective and therefore such interpretation must be avoided. (Resp. Suppl. Br. 3-5; see Williams v. Superior Court (1993) 5 Cal.4th 337, 357 [“An interpretation that renders statutory language a nullity is obviously to be avoided.”].) Respondent’s argument is unpersuasive because section 5.38.020(D) may be reasonably reconciled with the court’s interpretation of the County LTD Plan.

Section 5.38.020(D) addresses the denial or cessation of LTD benefits and states, in pertinent part: “Payment of the basic monthly benefit shall cease or not commence upon the occurrence of the first of the following events: … Cessation of total disability, including denial, or termination of, Federal Social Security disability benefits at any time after 24 consecutive months of eligibility for benefit payments.”

Respondent seems to contend that, under section 5.38.020(D), the “denial” or “termination” of federal disability benefits occurs upon an initial determination by the SSA that a claimant is disabled under the Act. However, section 5.38.020(D) does not include such language. When interpreting a statute, the court must construe the statute, if possible to achieve harmony among its parts. (People v. Hull (1991) 1 Cal. 4th 266, 272.) “When interpreting statutory language, we may neither insert language which has been omitted nor ignore language which has been inserted.” (See People v. National Auto. and Cas. Ins. Co. (2002) 98 Cal.App.4th 277, 282.)

As discussed, other parts of the County LTD Plan, including section 5.38.010(Q), strongly suggest that a “final determination regarding disability under the Act” refers to a final decision of the SSA after all administrative appeals are exhausted. (See e.g. § 5.38.010(Q), § 5.38.030(D)(2).) Harmonizing the entire statutory scheme, section 5.38.020(D) is reasonably interpreted such that only a denial or termination of federal disability benefits in a “final” decision” of the SSA, after all administrative remedies are exhausted, will cause monthly benefits to cease or not commence under the County LTD Plan.

Respondent contends that “[u]nder the Court’s interpretation, the County would have to continue to pay LTD benefits beyond the 24-month period while the administrative appeal of the SSA’s earlier decisions are pending beyond the 24-month period.” (Resp. Suppl. Br. 4.) Relatedly, Respondent asserts that “if Section 5.38.020(D) is rendered ineffective until the SSA’s final administrative decision’ (regardless of the outcome), this will incentivize individuals to delay and prolong their SSA administrative appeals in order to continue receiving LTD benefits.” (Ibid.) These arguments are not persuasive because section 5.38.010(Q) provides an alternative method for determining “total disability” after the 24-month period when an SSA determination is not final. While an administrative appeal of an SSA decision is pending, County may still deny benefits if it finds that the employee did not make a timely application for Social Security benefits or does not have a “complete and continuous inability and incapacity … to perform the duties of his or her position with the county.” (§ 5.38.010(Q).) Furthermore, there are time restrictions on the applicant seeking reconsideration or review by an ALJ or the Appeals Council. (See e.g. 20 Code of Fed. Regs §§ 404.909, 404.933, 404.968.) Thus, Respondent’s concerns about an applicant unduly delaying or prolonging the administrative process seem overstated.

For the reasons stated, the court interprets “final determination regarding disability under that Act” and “final decision of the Social Security Administration concerning a claim for disability benefits,” in sections 5.38.010(Q) and 5.38.030(D)(2), to mean the final administrative decision of the SSA, including any decision of the Appeals Council, after all administrative remedies are exhausted.

Thus, under the facts here presented, there was not a “final determination” at the end of the 24-month period. On that date, December 22, 2019, Petitioner’s administrative appeal of her claim with the SSA was still pending. The hearing officer found that the SSA partially granted Petitioner’s appeal on May 26, 2020, and the SSA Appeals Council issued a decision upholding the May 2020 determination on October 26, 2020. (AR 14.)

Because there was not a final determination at the end of the 24-month period, the following provision of the LTD becomes applicable: “[A]n employee who makes timely application for disability benefits under the Federal Social Security Act and who has not received a final determination regarding disability under that Act, total disability (for the period prior to the date on which a final determination is made regarding disability) shall mean the complete and continuous inability and incapacity of the employee to perform the duties of his or her position with the county.” (§ 5.38.010(Q).)

Because the hearing officer interpreted the LTD differently, he made no determination whether, as of December 22, 2019, Petitioner suffered a “complete and continuous inability and incapacity” to “perform the duties of her position with the county.”

In her supplemental brief, Petitioner argues that she meets all criteria of section 5.38.010(Q) for “total disability” through October 20, 2020, when the Appeals Council issued its final decision. (Pet. Suppl. Brief. 4-5.) Petitioner contends that the relevant facts establishing her entitlement to benefits through October 20, 2020 – specifically, her timely application for federal disability benefits and “complete and continuous inability and incapacity” to perform her duties as a court reporter – are “undisputed.” (Ibid.) Petitioner requests a writ directing Respondent to pay disability benefits to Petitioner “for the period between December 22, 2019 and the October 20, 2020 decision of the Appeals Council.” (Ibid.)[1] Such a writ falls within the scope of the prayer for relief in the petition, which sought a writ directing payment for a longer period of time, i.e., “until such time as her federal court lawsuit … is resolved.” (Pet. Prayer ¶ 1.) However, because Petitioner first raised her request for a writ directing payment through October 2020 in her supplemental brief, Respondent has not yet asserted its position on whether a remand for further proceedings is required. Respondent’s counsel should address that issue at the hearing.

Subject to oral argument, it appears undisputed that Petitioner made a timely application for disability benefits under the Federal Social Security Act during her 24-month benefit period. (AR 3, 13, 17.) The hearing officer also found in his December 12, 2020, decision that “[b]oth Suttle and the County agree that Suttle was disabled from her County position as a court reporter on and after December 22, 2019 (Anselmo and Suttle hearing testimony).” (AR 13 [bold italics added].) The hearing officer refers to County’s testimony given at a hearing on November 2, 2020, after the Appeals Council issued the final administrative decision on or about October 20 or 26, 2020. (AR 4.) Accordingly, based on the hearing officer’s decision, it appears undisputed that Petitioner suffered a “complete and continuous inability and incapacity … to perform the duties of … her position with the county” through October 20 or 26, 2020, as required for payment of disability after the 24-month period pending a “final determination” of the SSA. (§ 5.38.010(Q).) Subject to argument, the court tentatively concludes based on these undisputed facts that the requirements of section 5.38.010(Q) for payment of disability pending a “final determination” of the SSA are met.

Because the relevant facts appear undisputed, Petitioner’s entitlement to County disability benefits through October 2020, presents a pure question of law that may be decided by this court on writ review. In such circumstances, it is appropriate for the court to issue a writ directing Respondent to pay Petitioner disability benefits through October 2020. (See CCP § 1094.5(f) [“Where the judgment commands that the order or decision be set aside, it … may order respondent to take such further action as is specially enjoined upon it by law.”]; see Pacific Home v Los Angeles County (1953) 41 Cal.2d 844, 854 [“Since the facts are undisputed and the parties agree that a question of law only is presented, it is appropriate to reverse the judgments with directions.”]; Conley v. Matthes (1997) 56 Cal.App.4th 1453, 1459, fn. 7 [“where it appears from the record as a matter of law there is only one proper judgment on undisputed facts, we may direct the trial court to enter that judgment”].)

In her supplemental brief, Petitioner contends that payment of County disability benefits should include “ancillary benefits linked to the LTD benefits,” including medical benefits. (Pet. Suppl. Br. 5, fn. 4.) Petitioner does not sufficiently brief the issue, including with discussion of relevant provisions of the County LTD Plan. The court tentatively denies this request but Counsel may further address this issue at the hearing.

Finally, the court notes that its interpretation of the County LTD plan does necessarily mean that Petitioner’s subsequent court challenges of the SSA decision are irrelevant. If the federal court reverses the SSA decision and finds Petitioner was totally disabled as of December 22, 2019, there may be a different result. At least the County’s claims administrator implied that a reversal of the determination might require reopening of the case. (AR 63.) However, that scenario is not now before the court, and the court does not decide it.

Petitioner requests that the court “remand the claim to the County and its Claims Administrator for further proceedings consistent with the Court’s decision,” apparently to consider disability payments owed beyond October 2020. (Pet. Suppl. Br. 5 and fn. 5.) The court’s writ review is limited to the administrative record and the facts presented to the hearing officer. The “final decision” of the SSA at the time of the hearing officer’s decision was the denial of Petitioner’s appeal by the Appeals Council in October 2020. (AR 14.) However, Respondent must comply with this court’s decision, including the court’s interpretation of the County LTD Plan set forth above, should Petitioner file a claim for benefits after the Appeals Council’s first decision issued in October 2020.

As an alternative argument, Petitioner contends that she was deprived a fair trial because Respondent and Sedgwick did not alert her, during the administrative proceedings, to language in the “County/Sedgwick booklet” and information suggesting that Petitioner “returned to work under circumstances that potentially suspended the running of her ‘Qualifying Period.’” (OB 13-14.) Petitioner further contends that if her “six-month waiting period had in fact started over in mid-January 2018, then she would not have begun receiving long-term disability benefits until mid-July 2018, and her 24-month own-occupation period would not have ended until mid-July 2020, after receipt of the SSA decision finding her disabled as of May 14, 2020.” (OB 9.) Petitioner states that “[t]his would satisfy the County LTD Plan’s requirement for payment of benefits subsequent to the 24-month own-occupation period and would completely moot the issue being litigated in the lawsuit.” (Ibid.; see also Reply 5-8.)

“Generally, a fair procedure requires ‘notice reasonably calculated to apprise interested parties of the pendency of the action ... and an opportunity to present their objections.’” (Doe v. University of Southern California (2016) 246 Cal.App.4th 221, 240.) “Fair hearing requirements are ‘flexible’ and entail no ‘rigid procedure.’” (Doe v. Allee (2019) 30 Cal.App.5th 1036, 1062.) Procedural errors, “even if proved, are subject to a harmless error analysis.” (Hinrichs v. County of Orange (2004) 125 Cal.App.4th 921, 928.) “The question is whether the violation resulted in unfairness, in some way depriving [Petitioner] of adequate notice or an opportunity to be heard before impartial judges.” (Rhee v. El Camino Hosp. Dist. (1988) 201 Cal.App.3d 477, 497; see also Thornbrough v. Western Placer Unified School Dist. (2013) 223 Cal.App.4th 169, 200.)

Here, Petitioner had a reasonable opportunity to present her case and to be heard. Petitioner had the LTD Booklet in her possession and was represented by counsel in the administrative proceedings. (See AR 37-59.) Petitioner does not show that any evidence was improperly excluded from the record or that she was prevented from raising any argument about a partial return to work. Petitioner makes no argument that the hearing officer was biased.

Petitioner cites no authority that Sedgwick or County had any obligation to raise the issue of her alleged partial return to work. It was Petitioner’s burden to raise this issue because she was appealing the County’s decision to deny her LTD benefits. Placing the burden on the County to raise this issue unfairly transfers the burden of proof to the County.

Respondent contends that Petitioner waived or forfeited the partial-return-to-work argument because it was not raised in the administrative proceedings. (Oppo. 15.) The court agrees.

Exhaustion of administrative remedies is “a jurisdictional prerequisite to judicial review.” (Cal. Water Impact Network v. Newhall County Water Dist. (2008) 161 Cal.App.4^th 1464, 1489.) “Before seeking judicial review a party must show that he has made a full presentation to the administrative agency upon all issues of the case and at all prescribed stages of the administrative proceedings.” (Edgren v. Regents of University of California (1984) 158 Cal.App.3d 515, 520.) “The exhaustion doctrine operates as a defense to litigation commenced by persons who have been aggrieved by action but who have failed to exhaust the administrative remedy available to them.” (Los Globos Corp. v. City of Los Angeles (2017) 17 Cal.App.5th 627, 633.)

The exhaustion doctrine bars individual arguments that could have, but were not, made in administrative proceedings. “Judicial review in an administrative mandamus action brought pursuant to Code of Civil Procedure section 1094.5 is limited to issues raised in the proceedings before the administrative agency…. Therefore, a trial court cannot properly grant relief based on a legal theory not presented at the administrative proceeding.” (Dobos v. Voluntary Plan Administrators, Inc. (2008) 166 Cal.App.4th 678, 688; see also Niles Freeman Equipment v. Joseph (2008) 161 Cal.App.4th 765, 787; Bohn v. Watson (1954) 130 Cal.App.2d 24, 37.)

There are exceptions to the exhaustion requirement, including “when the subject of the controversy lies outside the administrative agency's jurisdiction, when pursuit of an administrative remedy would result in irreparable harm, when the administrative agency cannot grant an adequate remedy, and when the aggrieved party can positively state what the administrative agency's decision in his particular case would be.” (Edgren, supra, 158 Cal.App.3d at 520 [citations omitted].) “The lack of jurisdiction exception contemplates situations in which the agency lacks authority, statutory or otherwise, to resolve the underlying dispute between the parties.” (Id. at 521.)

“The petitioner bears the burden of demonstrating that the issues raised in the judicial proceeding were first raised at the administrative level.” (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 536.)

Petitioner concedes she failed to raise the partial-return-to-work argument in the administrative proceedings. In reply, she only raises one exception – that exhaustion may be excused “where to do so would serve the interests of justice.” (Reply 7, citing Greenblatt v. Munro (1958) 161 Cal.App.2d 596, 605-607.) Here, Petitioner does not show unique circumstances that would justify an excuse from the exhaustion doctrine. While represented by counsel, Petitioner neglected to raise a factual and legal claim that could plausibly support her appeal of the denial of disability benefits. Because Petitioner did not raise the issue, neither the County nor the hearing officer addressed it. These are circumstances in which the exhaustion doctrine is usually applied. While Petitioner could possibly lose out on disability benefits, that was the result of her counsel’s failure to raise the claim below.

Because Petitioner failed to exhaust her administrative remedies, the court does not reach the parties’ arguments, on the merits, as to whether Petitioner’s partial return to work restarted the qualifying period. (Oppo. 16-17.)

Petitioner submitted a declaration and timesheets with her Opening Brief in support of her argument that her return to work should have restarted the qualifying period. Petitioner makes an incomplete motion to augment the record. (OB 14, fn. 11.) Respondent objects. (Oppo. 17-18.)

“As a general rule, a hearing on a writ of administrative mandamus is conducted solely on the record of the proceeding before the administrative agency.” (Richardson v. City and County of San Francisco (2013) 214 Cal.App.4th 671, 702.) However, “[w]here the court finds that there is relevant evidence that, in the exercise of reasonable diligence, could not have been produced or that was improperly excluded at the hearing before respondent, it may enter judgment … remanding the case to be reconsidered in the light of that evidence; or, in cases in which the court is authorized by law to exercise its independent judgment on the evidence, the court may admit the evidence at the hearing on the writ without remanding the case.” (CCP § 1094.5(e).)

“The stringent requirements set forth in section 1094.5, subdivision (e) require the moving party to identify what evidence is sought to be [added] to the record; to establish the relevancy of the evidence; and to show that either (a) any such relevant, additional evidence was improperly excluded at the administrative hearing, or (b) it could not have been produced at the hearing with the exercise of reasonable diligence. (§ 1094.5, subd. (e).) If the moving party fails to make the required showing, it is an abuse of the court's discretion to allow posthearing discovery [or augment the record].” (Pomona Valley Hospital Medical Center v. Sup. Ct. (1997) 55 Cal.App.4^th 93, 102.)

As discussed above, Petitioner cites no authority that Sedgwick or County had any obligation to raise the issue of her alleged partial return to work. Her declaration and time sheets are not relevant to her claim that she did not receive a fair trial or that Respondent engaged in “agency misconduct.” (OB 14, fn. 11.) Petitioner does not otherwise address the requirements of CCP section 1094.5(e) or show they are satisfied. Petitioner’s request to augment the record with her declaration and time sheets is DENIED. Respondent’s objection is SUSTAINED.

Respondent also objects to statements Petitioner made about the amount of time it takes to litigate a case before the Ninth Circuit, and to Petitioner’s reference to a FAQ section of the Ninth Circuit website. (See OB 13 and Oppo. 18.) The first objection is overruled and the second sustained.

The petition for writ of mandate is GRANTED IN PART and DENIED IN PART. Subject to oral argument on the issues outlined above, the court concludes, as a matter of law based on the undisputed facts as stated in the hearing officer’s decision, that Petitioner is entitled to payment of County disability benefits from December 23, 2019, through either October 20, 2020, or October 26, 2020. Accordingly, the court will issue a writ directing Respondent to set aside the hearing officer’s December 12, 2020, decision and to pay Petitioner County disability benefits under the County LTD Plan from December 23, 2019, through October 20, 2020, or October 26, 2020.

At the hearing, Counsel should clarify whether the Appeals Council denied Petitioner’s administrative appeal on October 20 or October 26, 2020. (Compare AR 14; OB 7; Pet. Suppl. Br. 5-6.)

[1] The hearing officer stated that Petitioner’s final administrative appeal was denied on October 26, 2020, and not October 20, 2020, as stated by Petitioner in her briefs. (Compare AR 14; OB 7; Pet. Suppl. Br. 5-6.) Petitioner’s counsel should clarify this discrepancy in dates at the hearing.