United States District Court, N.D. California
ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY
JUDGMENT AND GRANTING DEFENDANT'S CROSS-MOTION FOR
SUMMARY JUDGMENT RE: ECF NOS. 14, 19
TIGAR UNITED STATES DISTRICT JUDGE
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.
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.
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.
making his disability determination, the ALJ followed the
five-step process set out by the Social Security
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.
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,
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. 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
district court has jurisdiction to review final decisions of
the Commissioner pursuant to 42 U.S.C. § 405(g).
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.
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).
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).