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Pagano v. Berryhill

United States District Court, D. Idaho

September 12, 2019

MARISA D. PAGANO, Petitioner,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant,


          B. Lynn Winmill U.S. District Court Judge

         Pending 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:


         On 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.

         On May 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.

         Having 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).


         To be 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).

         “Substantial 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, 565 (1988).

         As to 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).

         As to 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).


         A. Sequential Process

         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”). 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).

         The 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).

         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. 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).

         The 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.

(AR 28).

         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. 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).

         B. Analysis

         1. The ALJ Fulfilled His Duty to Develop the Record

         “In 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.

         At the beginning of the hearing, the ALJ carefully discussed the state of the existing administrative record with Petitioner's attorney, engaging in the following back-and-forth:

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 ...

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