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Fagundes v. Berryhill

United States District Court, N.D. California

November 17, 2017

NANCY BERRYHILL, [1] Defendant.



         Plaintiff Patrick Fagundes appeals Defendant Social Security Commissioner Nancy Berryhill's final decision denying his application for disability insurance benefits. Before the Court are the parties' cross-motions for summary judgment. ECF Nos. 14, 19. The matter is deemed fully briefed and submitted without oral argument pursuant to Civil Local Rule 16-5. The Court will deny Fagundes's motion and grant the Commissioner's cross-motion.

         I. BACKGROUND

         Plaintiff Patrick Fagundes is a resident of Brisbane, California. Administrative Record (“AR”) 253. He was born on May 16, 1970, and claims he became disabled on March 30, 2009, based on stage 3 chronic obstructive pulmonary disorder (“COPD”), seizures, depression, and alcohol abuse disorder. AR 252, 285.

         Fagundes applied for Supplemental Security Income (“SSI”) disability benefits and Supplemental Security Income Disability Insurance (“SSDI”) on June 20, 2012. AR 252-64. The Commissioner denied his application on February 15, 2013, AR 159, and denied his request for reconsideration on October 18, 2013, AR 171. Fagundes appealed the denial and appeared before Administrative Law Judge (“ALJ”) Judson Scott for a hearing on December 10, 2014. AR 22. The ALJ denied Fagundes's appeal on January 26, 2015. AR 19-32.

         In making his disability determination, the ALJ followed the five-step process set out by the Social Security Act.[2] First, the ALJ found that Fagundes had not engaged in substantial gainful activity since March 30, 2009. AR 25. Second, the ALJ found that Fagundes suffered from COPD, personality disorder, mood disorder, posttraumatic stress disorder (“PTSD”), and alcohol abuse disorder, and that these impairments were severe. Id. Third, the ALJ found that Fagundes's impairments met the criteria for Listings 12.08 (Personality Disorders) and 12.09 (Substance Addiction Disorders) included in the regulations, 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 26. As required by 20 C.F.R. § 404.1535, the ALJ further found that if Fagundes stopped his substance use, he would continue to have a severe impairment or combination of impairments, but that he would not meet any Listings for disabilities and would have the residual functional capacity to perform a full range of work at all exertional levels with some non-exertional limitations. AR 27-31. Fourth, the ALJ found that Fagundes would be unable to perform his past relevant work. AR 31. Fifth, the ALJ found that even though Fagundes could not complete his past work, there would be a significant number of jobs in the national economy that Fagundes could perform. AR 31-32. The ALJ ultimately found that, “[b]ecause the substance use disorder is a contributing factor material to the determination of disability, [Fagundes] has not been disabled within the meaning of the Social Security Act at any time from the alleged onset date through the date of this decision.” AR 32.

         Fagundes filed a request for review of the ALJ decision, but the Appeals Council denied his request on April 29, 2016. AR 1-3. On June 21, 2016, Fagundes filed his appeal before this Court, asking that the ALJ's decision be set aside and the case remanded for another hearing. ECF No. 1. The parties have filed cross-motions for summary judgment. ECF Nos. 14, 19.

         Of relevance to the parties' current dispute, the ALJ heard testimony from Dr. Daniel Wiseman, a pulmonologist who reviewed the record as a medical expert but did not personally examine Fagundes.[3] When the ALJ asked Dr. Wiseman if there was a “pulmonary function test” in the record, Dr. Wiseman replied, “I couldn't find any, no.” AR 44. But the record did contain an arterial blood gas test from Fagundes's June 21, 2012 hospital admission, as well as the results of an office spirometry. AR 362, 384. The ALJ did not ask Dr. Wiseman about either of these tests, nor did he mention the arterial blood gas test in his decision. Fagundes contends that the ALJ's decision was therefore erroneous and not supported by substantial evidence.


         A district court has jurisdiction to review final decisions of the Commissioner pursuant to 42 U.S.C. § 405(g).

         “The Court may set aside a denial of benefits only if [it is] not supported by substantial evidence in the record or if it is based on legal error.” Merrill ex rel. Merrill v. Apfel, 224 F.3d 1083, 1084-85 (9th Cir. 2000). The court “review[s] the administrative record in its entirety to decide whether substantial evidence to support the ALJ's decision exists, weighing evidence that supports and evidence that detracts from the ALJ's determination.” Drouin v. Sullivan, 966 F.2d 1255, 1257 (9th Cir. 1992). “Substantial evidence is relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion.” Flaten v. Sec'y of Health & Human Servs., 44 F.3d 1453, 1457 (9th Cir. 1995). It is “more than a scintilla but less than a preponderance.” Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). “Where evidence exists to support more than one rational interpretation, the Court must defer to the decision of the ALJ.” Drouin, 966 F.2d at 1258. “[T]he key question is not whether there is substantial evidence that could support a finding of disability, but whether there is substantial evidence to support the Commissioner's actual finding that claimant is not disabled.” Jamerson, 112 F.3d at 1067.

         In evaluating a disability claim, the ALJ must “consider all of the available evidence, including [the claimant's] medical history, the medical signs and laboratory findings, and statements about [the claimant's] symptoms.” 20 C.F.R. §§ 404.1529 (a), 416.929 (a). “[T]he ALJ must develop the record and interpret the medical evidence, ” Howard ex rel. Wolff v. Barnhart, 341 F.3d 1006, 1012 (9th Cir. 2003), and is responsible for determining credibility, resolving conflicts in medical testimony, and resolving all other ambiguities, Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). However, the ALJ need not “discuss every piece of evidence” and, in particular, “is not required to discuss evidence that is neither significant or probative.” Id.; see also Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984) (noting that “[a]n ALJ must explain why he has rejected uncontroverted medical evidence” but finding no error where the ALJ failed to discuss a psychiatric diagnosis that was controverted by other medical evidence).

         Moreover, even if the ALJ erred, any error “is harmless where it is inconsequential to the ultimate nondisability determination. In other words, in each case we look at the record as a whole to determine whether the error alters the outcome of the case.” Molina v. Astrue, 674 F.3d 1104, 1115 (9th Cir. 2012) (citations and internal quotation marks omitted). Thus, for example, “where the ALJ's error lies in a failure to properly discuss competent lay testimony favorable to the claimant, a reviewing court cannot consider the error harmless unless it can confidently conclude that no reasonable ALJ, when fully crediting the testimony, could have reached a different disability determination.” Stout v. Comm'r, Soc. Sec. Admin., 454 F.3d 1050, 1056 (9th Cir. 2006).

         III. ...

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