United States District Court, D. Idaho
MARISA D. PAGANO, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant,
MEMORANDUM DECISION & ORDER
Lynn Winmill U.S. District Court Judge
before the Court is Petitioner Marisa D. Pagano's
Complaint/Petition for Review (Dkt. 2), seeking review of the
Social Security Administration's decision denying her
application for disability insurance benefits under Title II
of the Social Security Act for lack of disability. See
generally Compl./Pet. for Review (Dkt. 2). This action
is brought pursuant to 42 U.S.C. § 405(g). Having
carefully considered the record and otherwise being fully
advised, the Court enters the following decision:
August 8, 2013, Petitioner Marisa D. Pagano
(“Petitioner”) filed a Title II application for a
period of disability and disability insurance benefits,
alleging disability beginning November 5, 2012 (later amended
to July 15, 2013). The claim was denied on November 27, 2013
and, again, on reconsideration on May 30, 2014. On June 3,
2014, Petitioner timely filed a Request for Hearing. On
February 11, 2016, Administrative Law Judge Larry Kennedy
held a video hearing from Seattle, Washington, at which time
Petitioner, represented by her then-attorney Jeffrey Ratliff
(Petitioner is now pro se), appeared and testified
from Kennewick, Washington. Impartial vocational expert,
Michael W. Swanson, also appeared and testified.
16, 2016, the ALJ issued a Decision denying Petitioner's
claim, finding that she was not disabled within the meaning
of the Social Security Act. Petitioner timely requested a
review from the Appeals Council and, on July 18, 2017, the
Appeals Council denied Petitioner's Request for Review,
making final the ALJ's decision.
exhausted her administrative remedies, Petitioner timely
filed the instant action, arguing that the ALJ's findings
were not supported by substantial evidence in the record
because “medical evidence showed and states that [she]
[has] been unable to work due to multiple autoimmune diseases
that have been unresponsive to medication along with mental
health issues.” Compl./Pet. for Review, p. 3 (Dkt. 2);
see also generally Pet.'s Brief ISO Pet. for
Review (Dkt. 16). In this respect, Petitioner's briefing
is broad and encompassing, representing a hodgepodge of
arguments that generally attack certain of the ALJ's
conclusions (and even observations) at various steps of the
sequential process and, naturally, the ALJ's ultimate
conclusion that Petitioner is not disabled. Suffice it to
say, the overall balance of Petitioner's arguments
reflect claims that (1) the ALJ failed to properly develop
the medical evidence in the record, (2) the ALJ failed to
recognize the totality of Petitioner's impairments, and
(3) the ALJ improperly evaluated the medical opinion
evidence. See Pet.'s Brief, pp. 2-7 (Dkt. 16).
Petitioner therefore requests that the Court either reverse
the ALJ's Decision and find that she is entitled to
disability benefits or, alternatively, remand the case for
further proceedings and award attorneys' fees.
See Compl./Pet. for Review, at p. 3 (Dkt. 2).
STANDARD OF REVIEW
upheld, the Commissioner's decision must be supported by
substantial evidence and based on proper legal standards.
See 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. See 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.
See Hall v. Sec'y of Health, Educ. &
Welfare, 602 F.2d 1372, 1374 (9th Cir. 1979).
evidence” is defined as such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion. See Richardson v. Perales, 402 U.S. 389,
401 (1971); Tylitzki v. Shalala, 999 F.2d 1411, 1413
(9th Cir. 1993); Flaten 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,
questions of fact, the Court's role is to review the
record as a whole to determine whether it contains evidence
allowing a reasonable mind to accept the conclusions reached
by the ALJ. See Richardson, 402 U.S. at 401. The ALJ
is responsible for determining credibility and resolving
conflicts within the medical testimony (see Allen v.
Heckler, 749 F.2d 577, 579 (9th Cir. 1984)), resolving
any 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
contained in the record (see Sample v. Schweiker,
694 F.2d 639, 642 (9th Cir. 1982)). Where the evidence is
susceptible to more than one rational interpretation, the
reviewing court may not substitute its judgment or
interpretation of the record for that of the ALJ. See
Flaten, 44 F.3d at 1457; Key v. Heckler, 754
F.2d 1545, 1549 (9th Cir. 1985).
questions of law, the ALJ's decision must be based on
proper legal standards and will be reversed for legal error.
See Matney, 981 F.2d at 1019. At the same time, 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.” See
Smith v. Heckler, 820 F.2d 1093, 1094 (9th Cir. 1987).
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
first step requires the ALJ to determine whether the claimant
is engaged in substantial gainful activity
(“SGA”). See 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.
See 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.
See 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. See 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 “has not engaged in substantial
gainful activity since July 15, 2013, the amended alleged
onset date.” (AR 23).
second step requires a determination of whether the claimant
has a medically determinable impairment, or combination of
impairments, that is severe and meets the duration
requirement. See 20 C.F.R. §
404.1520(a)(4)(ii), 416.920(a)(4)(ii). An impairment or
combination of impairments is “severe” 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. See
20 C.F.R. §§ 404.1521, 416.921. If there is no
severe medically determinable impairment or combination of
impairments, benefits are denied. See 20 C.F.R.
§§ 404.1520(c), 416.920(c). Here, the ALJ found
that Petitioner has the following severe impairments:
“rheumatoid arthritis; syrinx of the spine; right
carpal tunnel syndrome; headaches; infraspinatus tendon tear
of the right shoulder; [and] hypothyroidism.” (AR 23).
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. See 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. See 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. See 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. See (AR 27).
fourth step of the evaluation process requires the ALJ to
determine whether the claimant's residual functional
capacity (“RFC”) is sufficient for the claimant
to perform past relevant work. See 20 C.F.R.
§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv). An
individual's RFC is her ability to do physical and mental
work activities on a sustained basis despite limitations from
her impairments. See 20 C.F.R. §§
404.1545, 416.945. On this point, the ALJ concluded:
After careful consideration of the entire record, I find that
the claimant has the residual functional capacity to perform
light work as defined in 20 CFR 404.1567(b). The claimant can
occasionally balance, stoop, kneel, and crouch. The claimant
cannot climb or crawl. The claimant can frequently handle,
finger, and reach. The claimant should avoid concentrated
exposure to extreme cold, extreme heat, humidity, vibrations,
pulmonary irritants, and hazards. The claimant can work in
very quiet to moderate noise intensity levels, as those terms
are defined in the Selected Characteristics of Occupations
Defined in the Revised Dictionary of Occupational Titles
(SCO). The claimant can perform simple, routine tasks and
follow short, simple instructions. The claimant can do work
that needs little or no judgment and can perform simple
duties that can be learned on-the-job in a short period.
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. See 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). Here, the ALJ
found that Petitioner is unable to perform any past relevant
work but that, considering her age, education, work
experience, and RFC, there are jobs that exist in significant
numbers in the national economy that she can perform,
including barista, storage rental clerk, final assembler, and
document preparer. See (AR 35-36). Therefore, the
ALJ concluded that Petitioner “has not been under a
disability, as defined by the Social Security Act, from July
15, 2013, through the date of this decision.” (AR 36).
The ALJ Fulfilled His Duty to Develop the Record
Social Security cases, the ALJ has a special duty to fully
and fairly develop the record and to assume that the
claimant's interests are considered.” Brown v.
Heckler, 713 F.2d 441, 443 (9th Cir. 1983).
This duty exists when the claimant is represented by counsel,
or when appearing pro se. See Smolen v.
Chater, 80 F.3d 1273, 1288 (9th Cir. 1996).
Such a duty is only triggered when there is “ambiguous
evidence” or the ALJ has found “the record
inadequate to allow for proper evaluation of the
evidence.” Tonapetyan v. Halter, 242 F.3d
1144, 1150 (9th Cir. 2001) (quoting
Smolen, 80 F.3d at 1288). Here, Petitioner suggests
that the ALJ's Decision was unreasonable, in part,
because he did not have the opportunity to review all of the
medical evidence prior to the February 11, 2016 hearing.
See Pet.'s Brief, pp. 1-2 (Dkt. 16)
(“Brief in Support of Petition will show cause as to
why Judge Kennedy's judgment should not be upheld and
that based on medical evidence, clarification of medical
records, and lack of records that the judge had
before the hearing give reason to not uphold his
Unfavorable decision ..... [Attorney Ratliff] was scolded by
Judge Kennedy for failure to have all my medical records sent
to him for review before the hearing. Judging/Hearing
proceedings without prior review of medical records would be
difficult and I find the ruling of Judge Kennedy unreasonable
..... Medical records were not reviewed by the judge before
the hearing.”) (emphasis added). This argument does not
supply a basis for remanding the action.
beginning of the hearing, the ALJ carefully discussed the
state of the existing administrative record with
Petitioner's attorney, engaging in the following
ALJ: Good afternoon. Let's take a look at our record and
see what we have in the file so far. 1-A to 4-A, 1-B to 10-B,
1-D to 5-D, 1-E to 15-E, 1-F to 29-F.
Have you had an opportunity to examine these exhibits?
ATTY: Yes, Judge.
ALJ: Are there any ...