Ferrari v. Colvin

Filing 18

ORDER: Ms. Ferrari's Motion for Summary Judgment is DENIED. The Commissioner's Motion for Summary Judgment is GRANTED. Signed by Magistrate Judge John Johnston on 8/17/2017. (MMS)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
GREAT FALLS DIVISION
LAURI A. FERARRI,

CV 16-81-JTJ

Plaintiff,
ORDER
vs.
NANCY BERRYHILL, Commissioner of
Social Security Administration,
Defendant.
I. SYNOPSIS
On November 3, 2014, the ALJ determined that Ms. Ferrari was not under a
disability as defined in the Social Security Act. She appealed the ALJ’s decision.
On May 20, 2016, the Appeals Council denied her request for review, making the
ALJ’s determination the final decision of the Commissioner of the Social Security
Administration. The Commissioner determined Ms. Ferrari has the residual
functional capacity to perform past relevant work and other work that exists in
significant numbers in the national economy, despite severe impairments, and,
therefore, is not disabled and not entitled to SSI benefits. The Commissioner’s
determination is supported by substantial evidence and is not based on legal error.
Thus, the Court denies Mr. Ferrari’s Motion for Summary Judgment and enters
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judgment in favor of the Commissioner.
II. JURISDICTION
Although Ms. Ferrari’s opening brief failed to include a statement indicating
that the Great Falls Division of the District of Montana is the proper venue for this
action, the record indicates when she commenced this action, she was a resident of
Sun River, Montana, which is in the Great Falls Division. 42 U.S.C. 405(g); Local
Rule 1.2(c)(3). The parties consented to the undersigned entering judgment in this
matter under 28 U.S.C. § 636(c). Fed R. Civ. P 73.
III. STANDARDS
A.

Court’s role

Review in this case is limited. The Court may set aside the Commissioner’s
decision only when substantial evidence does not support the decision or the when
the decision is based on legal error. Maounis v. Heckler, 738 F.2d 1032, 1034 (9th
Cir. 1984). Substantial evidence is “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Richardson v. Perales, 402
U.S. 389, 401 (1971). Substantial evidence has also been described as “more than
a mere scintilla” but “less than a preponderance.” Desrosiers v. Sec. of Health and
Hum. Services, 846 F.2d 573, 576 (9th Cir. 1988).
The district court must consider the record as a whole, weighing both the
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evidence that supports and detracts from the Commissioner’s conclusion. Green v.
Heckler, 803 F.2d 528, 530 (9th Cir. 1986). The Court may reject the findings not
supported by the record, but it may not substitute its findings for those of the
Commissioner. Tackett v. Apfel, 180 F.3d 1094, 1098 (9th Cir. 1999).
B.

Disability criteria

A claimant is disabled for purposes of the Social Security Act if the claimant
demonstrates by a preponderance of the evidence that (1) the claimant has a
“medically determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months”; and (2) the impairment or impairments are
of such severity that, considering the claimant’s age, education, and work
experience, the claimant is not only unable to perform previous work but also
cannot “engage in any other kind of substantial gainful work which exists in the
national economy.” Schneider v. Comm’r of Soc. Sec. Admin., 223 F.3d 968, 974
(9th Cir. 2000) (citing 42 U.S.C. §1382(a)(3)(A)-(B)).
The Social Security Administration regulations provide a five-step
sequential evaluation process for determining whether a claimant is disabled.
Bustamante v. Massanari, 262 F.3d 949, 953 (9th Cir. 2001); 20 C.F.R. §§
404.1520, 416.920. The claimant bears the burden of proof for steps one through
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four, and the Commissioner bears the burden of proof for step five. Id. at 954.
The five steps of the inquiry are:
1.

Is the claimant presently working in a substantially gainful
activity? If so, the claimant is not disabled within the meaning
of the Social Security Act. If not, proceed to step two. See 20
C.F.R. §§ 404.1520(b), 416.920(b).

2.

Is the claimant’s impairment severe? If so, proceed to step
three. If not, the claimant is not disabled. See 20 C.F.R. §§
404.1520(c), 416.920(c).

3.

Does the impairment “meet or equal” one of a list of specific
impairments described in 20 C.F.R. Part 220, Appendix 1? If
so, the claimant is disabled. If not, proceed to step four. See 20
C.F.R. §§ 404.1520(d), 416.920(d).

4.

Is the claimant able to do any work that he or she has done in the past?
If so, the claimant is not disabled. If not, proceed to step five. See 20
C.F.R. §§ 404.1520(e), 416.920(e).

5.

Is the claimant able to do any other work? If so, the claimant is not
disabled. If not, the claimant is disabled. See 20 C.F.R. §§
404.1520(f), 416.920(f).

Id.
IV. BACKGROUND
A.

Procedural history

Ms. Ferrari, who was born on May 8, 1972, first applied for disability
benefits on June 6, 2013. (Doc. 8 at 18.) She alleged her disability began the same
day. (Id.) On August 7, 2013, her claims were denied. (Id.) Her claims were denied
again upon reconsideration on October 24, 2013. (Id.) Ms. Ferrari then filed a
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written request for a hearing before an ALJ. (Id.) She appeared with counsel and
testified at a hearing on July 15, 2014. (Id.)
B.

ALJ’s determination

At step one, the ALJ determined that MS. Ferrari had not engaged in
substantial gainful activity since her alleged onset date of June 6, 2013. (Id. at 24.)
At step two, the ALJ determined that as Ms. Ferrari has the following severe
impairments that have a significant effect on her ability to perform basic work
activities: polyarthralgia and minimal degenerative disc disease of the lumbar
spine. (Id.) The ALJ acknowledged that she also has diverticulitis and dyspareunia.
(Id.) The ALJ, however, did not find that these impairments have a significant
impact on Ms. Ferrari’s ability to perform basic work activities. (Id.)
At step three, the ALJ evaluated Ms. Ferrari’s impairments and determined
that she does not have an impairment or combination of impairments that meets or
equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, or Appendix
1. (Id. at 23.)
Before considering step four, the ALJ determined that Ms. Ferrari has the
residual functional capacity to perform only light work with the following
exceptions: “she can frequently climb ramps, stairs, ladders, ropes, and scaffolds”
and can “frequently balance, stoop, kneel, crawl, and crouch. (Id.) The ALJ also
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noted that Ms. Ferrari “must avoid concentrated exposure to extreme cold and
vibrations.” (Id.)
At step four the ALJ then determined that Ms. Ferrari’s residual functional
capacity did not preclude her from performing past relevant work as a medical
transcriber. (Id. at 27.) The ALJ also noted that with this residual functional
capacity Ms. Ferrari could also perform the following jobs that exist in significant
numbers in the national economy: office helper, housekeeper, and cashier. (Id. at
28.) These findings led the ALJ to conclude that she did not meet the Social
Security Act’s definition of disabled. (Id.)
C.

Ms. Ferrari’s Position

Ms. Ferrari argues that the ALJ erred in determining that she did not meet
the Social Security Act’s definition of disabled. She argues that (1) the ALJ erred
at Step 2 by failing to categorize her diverticulitis and anxiety/depression as severe
impairments; (2) the ALJ’s residual functional capacity assessment is not
supported by substantial evidence and is also contrary to law; and (3) remand is
appropriate to consider new and material evidence, which is retrospective as to her
medical conditions. (Doc. 12 at 2.)
D.

The Commissioner’s Position

The Commissioner argues that (1) the ALJ properly assessed Mr. Ferrari’s
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severe impairments, (2) the ALJ’s determination of Ms. Ferrari’s residual
functional capacity is supported by substantial evidence and not based on legal
error, and (3) the Court should not consider Ms. Ferrari’s extra-record evidence, or
if it does, should consider the extra-record evidence under the standards for new
evidence and not as if it were part of the original record.
V. ANALYSIS
The Court determines that (1) the ALJ properly determined Ms. Ferrari’s
severe impairments; (2) the ALJ’s assessment of Ms. Ferrari’s residual functional
capacity is supported but substantial evidence and not based on legal error; and (3)
the evidence Ms. Ferrari submitted along with her briefs in this matter are not a
part of the administrative record before the Court.
A.

The ALJ’s determination of Ms. Ferrari’s severe impairments
1.

Legal Standards

The Social Security Act requires the ALJ to determine whether the claimant
has a severe medically determinable impairment at step two of the evaluation
process. 20 C.F.R. § 404.1520(a)(4)(ii). The Act defines a severe impairment as an
impairment, or combination of impairments, that significantly limits a claimant’s
ability to perform basic work activities for at least a twelve month period. Id. §§
404.1520(c), 404.1521. A medically determinable impairment is one that is
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“established by medical evidence consisting of signs, symptoms, and laboratory
findings.” Id. § 404.1508. A “non-severe” impairment must be only a slight
abnormality that has no more than a minimal effect on the ability to do basic work
activities. Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).
2.

Analysis

The ALJ determined that Ms. Ferrari had the following severe impairments
at Step 2 of the evaluation process: polyarthralgia and minimal degenerative disc
disease of the lumbar spine. (Doc. 8 at 23.) Ms. Ferrari argues that the ALJ
improperly omitted her diverticulitis and anxiety/depression. The Court disagrees.
The ALJ noted that the medical record indicated that Ms. Ferrari reported
experiencing diverticulitis symptoms. (Id. at 21.) The ALJ, however, also noted
that Ms. Ferrari responded well to prescription medication, and that she reported to
her treating physician that her pain was “nearly completely gone” in September
2013. (Id.) Ms. Ferrari sought treatment for her diverticulitis four days later, and
following an examination, her doctor stated that he thought Ms. Ferrari would
benefit from a laparoscopic extended left hemicolectemy, which is an outpatient
procedure. Given that pain associated with Ms. Ferrari’s diverticulitis has
responded well to prescription medication and according to her physician can be
treated with a simple outpatient procedure, the Court determines that the ALJ did
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not commit legal error in determining that her diverticulitis was not a severe
impairment, and that this conclusion is supported by substantial evidence.
Ms. Ferrari also argues the ALJ erred by not categorizing her
anxiety/depression as a severe impairment. The Court disagrees.
The ALJ acknowledged Ms. Ferrari had been treated for anxiety and
depression. (Doc. 8 at 22.) Yet, the ALJ noted that in January 2013, Ms. Ferrari
reported that her symptoms were under control and asked to be cleared to return to
full-time work, which she was. (Id.) Thus, the Court finds that the ALJ’s
determination that Ms. Ferrari’s anxiety and depression was not a severe
impairment is not based on legal error and is supported by substantial evidence.
B. The ALJ’s assessment of Mr. Ferrari’s residual functional capacity.
1.

Legal Standards

A claimant’s residual functional capacity is the type of work related
activities a claimant can still perform despite her limitations. 20 C.F.R. §
404.1545(a). The ALJ must consider all relevant evidence in the record when
determining a claimant’s residual functional capacity. Id. The ALJ then determines
a claimant’s ability to perform the “physical, mental, sensory, and other
requirements of work.” Id. at (a)(4).
Commonly, the medical records will provide conflicting opinions and

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evidence regarding a claimant’s residual functional capacity. Richardson v.
Perales, 402 U.S. 389, 399 (1971). It is the ALJ’s duty to resolve these conflicts.
Id. The ALJ must resolve any conflicts in the testimony and decide any questions
of credibility. Morgan, 169 F.3d at 599. When a claimant has an impairment that
could be expected to cause the symptoms she alleges and there is no evidence that
the claimant is malingering, the ALJ must provide “specific, clear, and convincing
reasons” for discrediting the claimant’s testimony about the pain she suffers.
Garrison v. Colvin, 759 F.3d 995, 1014-15 (9th Cir. 2014). A general credibility
finding will not suffice. Brown-Hunter v. Colvin, 8006 F.3d 487, 490 (9th Cir.
2015). If the ALJ’s findings are supported by reasonable inferences of the
conflicting evidence in the record, a court must uphold them. Molina v. Asture, 674
F.3d 1104, 1111 (2012).
2. Analysis
Ms. Ferrari argues that the ALJ’s residual functional capacity assessment is
not supported by substantial evidence and is based on legal error because the ALJ
improperly discounted Ms. Ferrari’s subjective complaints. (Doc. 12 at 17.) The
Court disagrees.
Ms. Ferrari’s subjective complaints
Ms. Ferrari testified that (1) she is always tired, and that her day typically

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alternates between periods of napping and being awake; (2) she experiences
muscle pain and stiffness that prevent her from working; and (3) she has a social
phobia that interferes with her ability to be around others.
i.

Ms. Ferrari’s daily activities

An ALJ must consider a claimant’s daily activities when determining her
residual functional capacity. 20 C.F.R. § 404.1529(c)(3)(I). An ALJ may
reasonably discount a claimant’s subjective complaints when the claimant’s daily
activities are inconsistent with his alleged symptoms. Garrison, 759 F.3d at 1016.
If the record is ambiguous or incomplete, a court has a duty to conduct an
appropriate inquiry. Tonapetyan v. Halter, 242 F.3d 1144, 1150 (9th Cir. 2001).
The Ninth Circuit does not require, however, that the ALJ give the claimant a
chance during a hearing to explain inconsistent statements or other factors that lead
to a finding that a claimant is not credible. Tonapetyan v. Halter, 242 F.3d 1144,
1148 (9th Cir. 2001).
Here, the ALJ found that despite Ms. Ferrari’s complaints regarding her
mental and physical limitations, she routinely socializes at friends’ homes and less
frequently goes to bars. (Doc. 8 at 26.) The ALJ also noted that despite Ms.
Ferrari’s claim that her physical pain prevents her from working, she applied for
several jobs and was approved for unemployment to work fewer than full-time

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hours. (Id.) The ALJ determined that these activities showed that she could do
more than she alleged. (Id.)
Ms. Ferrari argues that although she applied for unemployment benefits,
applied for other jobs, and socialized with her friends, these were not major
physical activities and have no bearing on her ability to work. (Doc. 17 at 14.)
The Court finds that the ALJ’s determination that Ms. Ferrari’s daily
activities contradict her subjective complaints is not based on legal error and is
supported by substantial evidence. Ms. Ferrari’s arguments are merely an
alternative interpretation of the evidence in the record. Because the Court finds that
the ALJ’s interpretation of the facts is not based on legal error and is supported by
substantial evidence, it must be affirmed. Molina, 674 F.3d at 1111.
ii.

The medical record concerning Ms. Ferrari’s
complaints.

An ALJ must consider the objective medical evidence in the record when
assessing a claimant’s subjective complaints. 20 C.F.R. § 404.1529(c)(2). The ALJ
may not rely solely on the fact that the medical evidence does not fully corroborate
a claimant’s subjective complaints to discount a claimant’s testimony. Rollins, 261
F.3d at 857. Any inconsistences between the claimant’s complaints, however, may
be a relevant factor in the ALJ’s decision. Id.
Here, the ALJ determined that the medical evidence was not consistent with
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Ms. Ferrari’s subjective complaints. (Doc. at 26.) The ALJ found that her
subjective complaints conflicted with the finding of Dr. Adams, who found Ms.
Ferrari’s muscle twitches and tremors were treatable with over-the-counter
medication and Dr. Klawiter, who found that Ms. Ferrari had “no abnormal
movements,” and “had full strength in the bilateral arms and legs, including the
biceps, triceps, deltoids, hip flexion, knee extension and flexion, dorsiflexion and
plantar flexion.” (Id.) The ALJ also noted that Dr. Klawiter found that Ms. Ferrari
had “normal gait and station . . . and was able to heel-to and tandem walk.” (Id.)
The ALJ further noted found that EMG and nerve condition studies “were normal
and showed no evidence of polyneuropathy, mononeuropathy, radiculopathy, or
myopathy.” (Id.) Finally, the ALJ noted that in October 2012, Ms. Ferrari denied
any joint pain or muscle weakness while she was treated for an ovarian cyst, that a
lumbar spine X-ray taken in August 2012 showed minimal degenerative changes in
the lower lumbar spine, and that a X-ray of her hip was negative. (Doc. 8 at 366411.)
An ALJ is required to provide a “thorough discussion and analysis of the
objective medical and other evidence in assessing a claimant’s subjective
complaints.” SSR 96-8p, 1996 WL 374184, at *7. Yet, an ALJ is not required to
“discuss all evidence presented to her” but instead must simply “explain why

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significant probative evidence has been rejected.” Vincent ex rel. Vincent v.
Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). Here, the ALJ noted specific
examples where he found the medical record to contradict Ms. Ferrari’s subjective
complaints, including that she was able to do normal daily activities and that she
reported no joint or muscle pain on at least one occasion. (Doc. 8 at 26.) The Court
finds that this was sufficient to explain why the ALJ rejected Ms. Ferrari’s
complaints.
Finally, it is the ALJ’s responsibility to determine the credibility of a
claimant’s subjective complaints and to resolve conflicts in the medical record.
Magallanes v. Bowman, 881 F.2d 747, 750 (9th Cir. 1989). Substantial evidence
review does not allow a court to reweigh evidence or substitute its judgment for the
ALJ’s. Winans v. Bowen, 843 F.2d 643, 644-45 (9th Cir. 1987). Although Ms.
Ferrari argues that the ALJ erred by relying on reports that indicated her condition
had improved, the regulatory scheme requires the ALJ to consider such evidence in
making her determination. The Court, therefore, finds that the ALJ’s determination
that the medical record did not corroborate Ms. Ferrari’s subjective complaints is
supported by substantial evidence and not based on legal error.
C.

Ms. Ferrari’s extra-record evidence

Ms. Ferrari submitted evidence that post-dated the ALJ’s decision to the

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Appeals Council. She argues that the Appeal Council erred by failing to review the
ALJ’s decision in light of this evidence. (Doc. 12 at 25.) Ms. Ferrari attached
copies of this evidence to her brief in this matter. (Doc. 12 Ex. A, Ex. B.) The
Commissioner moved to strike this evidence. (Doc. 13 at 17.) The Court
determines that this evidence is not part of the administrative record in this matter,
and therefore the Court may not consider it in its review of the ALJ’s decision. The
Court grants the Commissioner’s motion to strike this evidence.
1.

Legal standards

When a claimant submits new and material evidence to the Appeals Council,
the Council may consider the evidence the new evidence “only where it relates to
the period on or before the date of the [ALJ’s] hearing decision.” 20 C.F.R. §
404.970(b)(1). The regulations require the Appeal Council to return to the claimant
any additional evidence that does not relate to the period on or before the date of
the ALJ’s decision. 20 C.F.R. §§ 404.976(b)(1); 416.1576(b)(1). If the Appeal
Council considers new evidence when determining whether to review an ALJ’s
decision, “the new evidence becomes part of the administrative record, and the
district court must consider when reviewing the Commissioner’s final decision.
Brewes v. Comm’r of Soc. Sec. Admin., 682 F.3d 1157, 1163 (9th Cir. 2012). The
Commissioner is required to file a certified copy of the record upon which the

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decision of the ALJ is based. 42 U.S.C. § 405(g). A reviewing court may base its
decision only on the pleadings and transcript of the record. Id. A reviewing court
may only review an agency’s final decision. Id. When the Appeal Council denies a
claimant’s request for review, the ALJ’s decision becomes the final decision of the
agency. 20 C.F.R. § 404.981. The Appeal Council’s denial of a claimant’s request
for review is not subject to the Court’s review. Id.
Here, Ms. Ferrari submitted to the Appeals Council evidence dated one year
after the ALJ’s decision. (Doc. 13 at 24.) The Council refused to consider this
evidence because it was about a later time and did not have any bearing on whether
she was disabled on or before the date of the ALJ’s decision. (Doc. 8 at 2.) The
Appeals Council informed Ms. Ferrari that she may file a new application for
benefits based on this new evidence. (Id.) Ms. Ferrari argues that the ALJ
considered the evidence in denying to review the ALJ’s decision and thus, the
evidence must be included in the record for the Court’s review. The Court
disagrees. The record indicated that the Appeal Council looked at the dates of the
new evidence and determined that the evidence did not pertain to the time period
covered by the ALJ’s decision. The Court determines that this cursory review of
the evidence does not rise to the level of consideration that would require the
evidence to be included in the record before the Court. Thus, the Court grants the

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Commissioner’s motion to strike this evidence and will not consider it in its review
of the ALJ’s decision.
Ms. Ferrari argues that the Court found similar evidence warranted remand
in a previous case–Clark v. Colvin, CV 15-34-GF-BMM-JTJ. (Doc. 17 at 9.) Yet,
in Clark the Court found that the newly presented evidence was material to the
ALJ’s disability determination for the relevant time period. Clark, CV 15-34-GFBMM-JTJ at 15. Here, Ms. Ferrari’s newly presented evidence involves a time
period that was not under consideration when the ALJ issued his decision.
In determining whether to remand a case in light of new
evidence, a court examines both whether the new evidence is material to a
disability determination and whether a claimant has shown good cause for failing
to present the new evidence to the ALJ earlier. Mayes v. Massanari, 276 F.3d 453,
462 (9th Cir. 2001). To be material, “new evidence must bear directly and
substantially on the matter in dispute.” Id. (quoting Ward v. Schweiker, 686 F.2d
762, 764 (9th Cir. 1982)) (internal quotation marks omitted). Because Ms. Ferrari’s
newly presented evidence involves a time period that was not under consideration
in the ALJ’s decision, the Court determines that it is not material to the disability
determination under review here.
For the reasons stated above, the Court issues the following order:

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1.

Ms. Ferrari’s Motion for Summary Judgement is DENIED.

2.

The Commissioner’s Motion for Summary Judgement is GRANTED.

DATED this 17th day of August, 2017.

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