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Marsha Daulton v. Michael J. Astrue

September 28, 2011


The opinion of the court was delivered by: Honorable Ronald E. Bush U. S. Magistrate Judge


Currently pending before the Court is Marsha Daulton's Motion for Summary Judgment (Docket No. 19), seeking review of the Social Security Administration's decision to deny her claim for disability insurance benefits and supplemental security benefits. This action is brought pursuant to 42 U.S.C. § 405(g). Having carefully reviewed the record and otherwise being fully advised, the court enters the following Memorandum Decision and Order:


Marsha Daulton ("Petitioner") applied for disability insurance benefits on June 19, 2006, alleging disability beginning September 15, 1997 (later amended to November 30, 2005). Petitioner's claim was initially denied on October 4, 2006 and, again, on reconsideration on March 16, 2007. On April 12, 2007, Petitioner timely filed a Request for Hearing before an Administrative Law Judge ("ALJ"). On April 15, 2008, ALJ Lloyd E. Hartford held a hearing in Missoula, Montana, at which time Petitioner, represented by attorney Thomas Bulman, appeared and testified. A medical expert, Paul J. Bach, Ph.D., and a vocational expert, Karen S. Black, also appeared and testified during the same April 15, 2008 hearing.

On December 24, 2008, the ALJ issued a decision denying Petitioner's claims, finding that Petitioner was not disabled within the meaning of the Social Security Act. On February 23, 2009, Petitioner requested a review of the ALJ's December 24, 2008 decision and, on May 11, 2010, the Appeals Council denied Petitioner's request for review, making the ALJ's decision the final decision of the Commissioner of Social Security.

Having exhausted her administrative remedies, Petitioner timely files the instant action, arguing that the "[d]enial of [her] claim is neither in accordance with the law nor supported by substantial evidence." See Pet.'s Compl., p. 2 (Docket No. 1). Specifically, Petitioner asserts that (1) the ALJ erred by giving evidentiary weight to a non-examining source; (2) the ALJ failed to give Petitioner a full and fair hearing; (3) the ALJ erred in finding that Petitioner could do no other work in the national economy; and (4) the ALJ failed to adequately assess the nature and extent of Petitioner's alleged impairments. See Pet.'s Brief, p. 2 (Docket No. 21). Petitioner requests that this Court "remand[ ] this case to the ALJ with benefits." See id. at p. 10.


To be upheld, the Commissioner's decision must be supported by substantial evidence and based on proper legal standards. 42 U.S.C. § 405(g); Matney ex. rel. Matney v. Sullivan, 981 F.2d 1016, 1019 (9th Cir. 1992); Gonzalez v. Sullivan, 914 F.2d 1197, 1200 (9th Cir. 1990). Findings as to any question of fact, if supported by substantial evidence, are conclusive. 42 U.S.C. § 405(g). In other words, if there is substantial evidence to support the ALJ's factual decisions, they must be upheld, even when there is conflicting evidence. Hall v. Sec'y of Health, Educ. & Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).

"Substantial evidence" is defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993); Flatten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). The standard requires more than a scintilla but less than a preponderance (see Sorenson v. Weinberger, 514 F.2d 1112, 1119 n. 10 (9th Cir. 1975); Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989)), and "does not mean a large or considerable amount of evidence." Pierce v. Underwood, 487 U.S. 552, 565 (1988).

With respect to questions of fact, the role of the Court is to review the record as a whole to determine whether it contains evidence that would allow a reasonable mind to accept the conclusions of the ALJ. See Richardson, 402 U.S. at 401; see also Matney, 981 F.2d at 1019. The ALJ is responsible for determining credibility and resolving conflicts in medical testimony (see Allen v. Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving ambiguities (see Vincent ex. rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)), and drawing inferences logically flowing from the evidence (see Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982)). Where the evidence is susceptible to more than one rational interpretation in a disability proceeding, the reviewing court may not substitute its judgment or interpretation of the record for that of the ALJ. Flatten, 44 F.3d at 1457; Key v. Heckler, 754 F.2d 1545, 1549 (9th Cir. 1985).

With respect to questions of law, the ALJ's decision must be based on proper legal standards and will be reversed for legal error. Matney, 981 F.2d at 1019. The ALJ's construction of the Social Security Act is entitled to deference if it has a reasonable basis in law. See id. However, reviewing federal courts "will not rubber-stamp an administrative decision that is inconsistent with the statutory mandate or that frustrates the congressional purpose underlying the statute." Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).


A. Sequential Processes

In evaluating the evidence presented at an administrative hearing, the ALJ must follow a sequential process in determining whether a person is disabled in general (see 20 C.F.R. §§ 404.1520, 416.920) - or continues to be disabled (see 20 C.F.R. §§ 404.1594, 416.994) - within the meaning of the Social Security Act.

The first step requires the ALJ to determine whether the claimant is engaged in substantial gainful activity ("SGA"). 20 C.F.R. §§ 404.1520(a)(4)(I), 416.920(a)(4)(I). SGA is defined as work activity that is both substantial and gainful. "Substantial work activity" is work activity that involves doing significant physical or mental activities. 20 C.F.R. §§ 404.1572(a), 416.972(a). "Gainful work activity" is work that is usually done for pay or profit, whether or not a profit is realized. 20 C.F.R. §§ 404.1572(b), 416.972(b). If the claimant has engaged in SGA, disability benefits are denied, regardless of how severe her physical/mental impairments are and regardless of her age, education, and work experience. 20 C.F.R. §§ 404.1520(b), 416.920(b). If the claimant is not engaged in SGA, the analysis proceeds to the second step. Here, the ALJ found that Petitioner did not engage in substantial gainful activity during the period from her alleged onset date of November 30, 2005, through her date last insured of September 30, 2006. (AR 12).

The second step requires the ALJ to determine whether the claimant has a medically determinable impairment, or combination of impairments, that is severe and meets the duration requirement. 20 C.F.R. § 404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or combination of impairments is "severe" within the meaning of the Social Security Act if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. §§ 404.1520(c), 416.920(c). An impairment or combination of impairments is "not severe" when medical and other evidence establish only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual's ability to work. 20 C.F.R. §§ 404.1521, 416.921. If the claimant does not have a severe medically determinable impairment or combination of impairments, disability benefits are denied. 20 C.F.R. §§ 404.1520(c), 416.920(c). Here, the ALJ found that Petitioner had the following severe impairments: (1) impingement right shoulder status post rotator cuff repair; (2) impingement left shoulder with AC joint arthritis; and (3) anxiety with agoraphobia. (AR 12-13).

The third step requires the ALJ to determine the medical severity of any impairments; that is, whether the claimant's impairments meet or equal a listed impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1. 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the answer is yes, the claimant is considered disabled under the Social Security Act and benefits are awarded. 20 C.F.R. §§ 404.1520(d), 416.920(d). If the claimant's impairments neither meet nor equal one of the listed impairments, the claimant's case cannot be resolved at step three and the evaluation proceeds to step four. Id. Here, the ALJ concluded that Petitioner's above-listed impairments, while severe, do not meet or medically equal, either singly or in combination, the criteria established for any of the qualifying impairments. (AR 13-15).

The fourth step of the evaluation process requires the ALJ to determine whether the claimant's residual functional capacity is sufficient for the claimant to perform past relevant work. 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An individual's residual functional capacity is her ability to do physical and mental work activities on a sustained basis despite limitations from her impairments. 20 C.F.R. §§ 404.1545, 416.945. Likewise, an individual's past relevant work is work performed within the last 15 years or 15 years prior to the date that disability must be established; also, the work must have lasted long enough for the claimant to learn to do the job and be engaged in substantial gainful activity. 20 C.F.R. §§ 404.1560(b), 404.1565, 416.960(b), 416.965. Here, the ALJ determined that Petitioner has the residual functional capacity to perform a generally full range of (unskilled) light work, with the following limitations: (1) lift/carry 20 pounds occasionally, 10 pounds frequently; (2) stand and/or walk (with normal breaks) for a total of about six hours in an eight-hour day; (3) sit (with normal breaks) for a total of about six hours in an eight-hour workday; (4) climb ladders, ropes, and scaffolds on only an occasional basis; (5) avoid repetitive overhead reaching; and (6) avoid concentrated exposure to extreme cold, vibration, and hazards. (AR 15-18).

In the fifth and final step, if it has been established that a claimant can no longer perform past relevant work because of her impairments, the burden shifts to the Commissioner to show that the claimant retains the ability to do alternate work and to demonstrate that such alternate work exists in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), 404.1520(f), 416.920(f); see also Matthews v. Shalala, 10 F.3d 678, 681 (9th Cir. 1993). If the claimant is able to do other work, she is not disabled; if the claimant is not able to do other work and meets the duration requirement, she is disabled. Here, the ALJ found that, through the date last insured, Petitioner was unable to perform any past relevant work. (AR 18) However, considering Petitioner's age, education, work experience, and residual functional capacity, the ALJ concluded that "there were jobs that existed in significant numbers in the national economy that [Petitioner] could have performed." (AR 18-19).

B. Analysis

Petitioner challenges the denial of disability benefits in four separate ways, arguing that the ALJ erred, first, by giving evidentiary weight to a non-examining medical source; second, by not giving Petitioner a full and fair hearing; third, in finding that Petitioner could do other work in the national economy; and fourth, by not adequately assessing the nature and extent of Petitioner's impairments.

1. Non-Examining Medical Sources v. Single Decisionmakers Relying exclusively upon a May 19, 2010 memorandum from Chief Administrative Law Judge Frank A. Cristaudo, Petitioner argues that the ALJ's reliance upon Gary Rapaport, M.D., "is in direct opposition to the Social Security Administration's own policy and procedures." See Pet.'s Brief, pp. 3-4 (Docket No. 21).*fn2 The Court disagrees.

The referenced May 19, 2010 memorandum details "how ALJs . . . should evaluate RFC assessments from State agency Single Decisionmakers ("SDM")," stating in no uncertain terms that "agency policy requires ALJs . . . to evaluate SDM RFC assessments as adjudicatory documents only, and not accord them any evidentiary weight when deciding cases at the hearing level." See Social Security Mem. from F. Cristaudo to Regional Chief Administrative Law Judges, dated 5/19/10, attached as Ex. 1 to Pet.'s Stmt. of Material Facts (Docket No. 20). However, as Respondent correctly points out, SDMs are not medical professionals. See Resp.'s Brief, p. 7 (Docket No. 26). In contrast, Dr. Rapaport is a medical professional, whose October 1, 2006 "Physical Residual Functional Capacity Assessment" (AR 370-377) stands beyond the scope of the May 19, 2010 memorandum's caution against relying upon SDMs. Indeed, in her reply briefing, Petitioner notes that "Respondent's arguments regarding the opinions of Gary Rapaport, M.D., . . . are well taken." See Pet.'s Reply Brief, p. 2 (Docket No. 29).*fn3

In short, the ALJ properly gave evidentiary weight to Dr. Rapaport and appropriately considered Dr. Rapaport's findings in addressing Petitioner's disability claim. See, e.g., SSR 96-6P, 1996 WL 374180, *2 ("Administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they may not ignore these opinions and must explain the weight given to the opinions in their decisions.").

2. Full and Fair Hearing

An ALJ in a social security case has an independent "'duty to fully and fairly develop the record and to assure that the claimant's interests are considered.'" Smolen v. Chater, 80 F.3d 1273, 1288 (9th Cir. 1996) (quoting Brown v. Heckler, 713 F.2d 441, 443 (9th Cir. 1983)). "Ambiguous evidence, or the ALJ's own finding that the record is inadequate to allow for proper evaluation of the evidence, triggers the ALJ's duty to 'conduct an appropriate inquiry.'" Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001) (quoting Smolen, 80 F.3d at 1288; Armstrong v. Comm'r of Soc. Sec. Admin., 160 F.3d 587, 590 (9th Cir. 1998)). "The ALJ may discharge this duty in several ways, including: subpoenaing the claimant's physicians, submitting questions to the claimant's physicians, continuing the hearing, or keeping the record open after the hearing to allow supplementation of the record." Tonapetyan, 242 F.3d at 1150 (citing Tidwell v. Apfel, 161 F.3d 599, 602 (9th Cir. 1998); Smolen, 80 F.3d at 1288)).

Petitioner argues that, at the conclusion of the April 15, 2008 hearing, the ALJ agreed to conduct a supplementary hearing after receiving additional medical evidence. See Pet.'s Brief, p. 4 (Docket No. 21). However, after receiving the requested medical evidence, the ALJ issued his December 24, 2008 decision denying disability benefits without conducting any supplemental hearing; according to Petitioner, the ALJ's failure to conduct a supplemental hearing significantly impaired her ability to comprehensively present her case. See id.; see also Pet.'s Reply Brief, p. 2 (Docket No. 29) ("Another way of saying this is that Petitioner would have presented and argued her case differently if she would have ...

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