Page v. Social Security Administration
Filing
20
ORDER AND OPINION: For the reasons stated, I find substantial evidence in the record supports the ALJ' s decision. Accordingly, I AFFIRM the decision. I DISMISS this action with prejudice. Signed on 4/18/2018 by Judge Michael W. Mosman. (kms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
JUNE AMO ROSA PAGE,
No. 6:17-CV-00444-MO
Plaintiffs,
ORDER AND OPINION
v.
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
MOSMAN,J.,
Plaintiff June Amorosa Page challenges the Commissioner's decision denying her claim for
disability insurance benefits. I have jurisdiction under 42 U.S.C. § 405(g) to review the Administrative
Law Judge's ("ALJ'') decision. For the reasons stated below I AFFIRM the ALJ's decision.
PROCEDURAL BACKGROUND
Ms. Page filed her first application for Title II Disability Insurance Benefits on February 20,
2014, alleging disability beginning January 1, 1993. This application received an unfavorable initial
review on March 8, 2014. Instead of appealing, Ms. Page filed a new application for benefits on April 1,
2014. The Commissioner denied the application initially on May 9, 2014, and on reconsideration on
July 14, 2014. Ms. Page filed a timely request for a hearing on July 31, 2014. An ALJ held a hearing on
May 3, 2016. Although the ALJ informed her of her right to representation, Ms. Page appeared and
testified without the assistance of an attorney or other representative. The ALJ issued a decision on
August 3, 2016, denying Ms. Page's application on the basis that she was not under a disability, as
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defined by the Social Security Act, at any time from January 1, 1993, the alleged onset date, through
September 30, 1998, her date last insured. In February 2017, the Appeals Council denied Ms. Page's
request for review, making the decision to deny benefits the Commissioner's final decision.
THE ALJ'S FINDINGS
The ALJ made his decision based upon step one of the five-step sequential evaluation process
established by the Secretary of Health and Human Services. Bowen v. Yuckert, 482 U.S. 137, 140-42
(1987); 20 C.F.R. § 416.920 (establishing the five-step evaluative process for SSI claims).
At Step One, the ALJ determined that Ms. Page engaged in substantial gainful activity in the
period 2000-2003, after her date last insured of September 30, 1998. Because the ALJ found Ms. Page
to have performed substantial gainful activity after her insured status for disability income benefits had
expired, he could not find her disabled for the period while she was still insured. Accordingly, the ALJ
ended his analysis at step one.
STANDARD OF REVIEW
I review the ALJ' s decision to ensure the ALJ applied proper legal standards and that the ALJ' s
findings are supported by substantial evidence in the record. 42 U.S.C. § 405(g); Bray v. Comm 'r of
Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (explaining that the ALJ's decision must be
supported by substantial evidence and not based on legal error). "'Substantial evidence' means more
than a mere scintilla, but less than a preponderance; it is such relevant evidence as a reasonable person
might accept as adequate to support a conclusion." Lingenfelter v. Astrue, 504 F.3d 1028, 1035 (9th Cir.
2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006)). A judge must uphold
the Commissioner's decision if it is a rational interpretation of the evidence, even if there are other
possible rational interpretations. Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). The
reviewing court may not substitute its judgment for that of the Commissioner. Robbins, 466 F.3d at 882.
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DISCUSSION
The overriding issue Ms. Page raises in her briefing is that the denial of her application for
disability income benefits because she attempted to go back to work is not fair and that she is being
punished for attempting to return to work. Ms. Page also raises five specific claims of error: (1) the
ALJ abused his discretion when he found that she engaged in substantial gainful activity; (2) the ALJ
erred when he declined to discuss the statements from Ms. Page's family, friends, administrative
assistant, and treating Naturopath; (3) the ALJ gave Ms. Page no choice but to go forward with her
hearing without an attorney or other representative; (4) the ALJ erred in finding she did not have
sufficient quarters of coverage to extend her date last insured; and (5) the Appeals Council improperly
declined to review the ALJ's decision. Despite these claims of error, I find substantial evidence in the
record supports the ALJ' s decision.
I.
The ALJ's Finding that Ms. Page Engaged in Substantial Gainful Activity.
Ms. Page argues substantial evidence does not support the ALJ's determination that she engaged
in substantial gainful activity between 2000 and 2003 1 when she worked as a senior engineer because
she only returned to work intermittently from spring 1999 through the fall of 2003. Ms. Page claims that
when she was working she often had accommodations. "The concept of substantial gainful activity
involves the amount of compensation and the substantiality and gainfulness of the activity itself. Keyes
v. Sullivan, 894 F.2d 1053, 1056 (9th Cir. 1990) (citing 20 C.F.R. 404.1532(b)). While not dispositive,
earnings over the amount specified in the guidelines create the presumption of substantial gainful
employment. Id. An applicant can rebut a presumption based on earnings with evidence of her
"inability to perform the job well, without special assistance, or for only brief periods of time." Id.
1
Ms. Page asserts she "worked off and on from 1999 through 2003." (Resp. to Def.'s Br. at 1, dkt. no.
19).
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Here, Ms. Page earned well over the amount specified in the guidelines, this creating the
presumption that she engaged in substantial gainful activity. The guidelines presume substantial work
activity for a non-blind individual earning over $700 a month in 2000, over $740 a month in 2001, over
$780 a month in 2002, and over $800 a month in 2003. 20 C.F.R. § 404.1574;
http://www.socialsecurity.gov/OACT/COLA/sga.html (listing monthly earnings presumptive of
substantial gainful activity) (last visited March 12, 2018). Ms. Page earned at least $3,000 a month
from 2000 to 2003: $45,304.82 in 2000, $54,128.76 in 2001, and $28,881 in 2003 before she stopped
working in September of that year. (Tr. 43, 81). I find substantial evidence supports the ALJ's finding
that Ms. Page engaged in substantial gainful activity.
Ms. Page contends that the accommodations she received when she was working from 19992003 rebuts the presumption that she engaged in substantial gainful activity. Ms. Page lists her
accommodations as: intermittent work; her husband taking care of everything at home including her
meals; and resting during her lunch hour (Resp. to Def.'s Br. at 4-5, dkt no. 19; Pl.'s Opening Br.at 16,
dkt. no. 16). To rebut the presumption of substantial gainful employment, a claimant must show she
worked under special conditions. 20 C.F .R. § 404.1573(c). Relatively minor accommodations by an
employer do not constitute such; instead, to establish that she worked under special conditions, a
claimant must show that her "work environment was the equivalent of a sheltered workshop." Katz v.
Sec '.Y ofHealth and Human Serv., 972 F .2d 290, 294 (9th Cir. 1992). Ms. Page has not overcome the
presumption of substantial gainful activity even though she apparently worked intermittently, relied on
her husband to take care of their household, and rested during her lunch hour. Accordingly, I find Ms.
Page has not rebutted the presumption that she engaged in substantial gainful activity from 1999-2003.
The ALJ reasonably determined that Ms. Page engaged in substantial gainful activity after her
date last insured. Because an individual who engages in substantial gainful activity cannot be disabled
4 -OPINION AND ORDER
under the relevant regulations, the ALJ correctly found that Ms. Page did not establish disability
beginning on or before her date last insured and existing until at least one year before she filed
applications for disability income benefits in 2014.
II.
Statements from Ms. Page's Friends, Family, Co-Worker, and Naturopath.
Ms. Page asserts the ALJ erred by not considering the letters from her administrative assistant,
friends, family, and naturopath attesting to her "character, condition, actions and health." (Pl.' s Opening
Br. at 5, dkt. no. 16). ALJs must only discuss evidence that is significant and probative. Vincent on
Behalf of Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984). The statements from Ms. Page's
family, friends, former co-worker, and naturopath were neither significant nor probative of whether she
engaged in substantial gainful activity. Katz, 972 F.2d at 293. None of the letters are relevant to
whether Ms. Page engaged in substantial gainful activity or had accommodations to do so. Even the
letter from her former administrative assistant only discusses Ms. Page's deteriorating health and does
not discuss any workplace accommodations made for Ms. Page. (Tr. 74). I find the ALJ did not err by
not discussing these statements.
III.
Ms. Page's Right to Representation.
Ms. Page asserts the ALJ gave her no choice but to appear and testify without the assistance of
an attorney or other representative. (Pl.'s Opening Br. at 16, dkt. no. 16). Ms. Page, however, has
provided no evidence to suggest that she did not understand, or did not voluntarily waive her right to
counsel. Moreover, the transcript of the hearing belies her claim that her waiver was involuntary.
After the ALJ informed her of her right to representation, he and Ms. Page engaged in a lengthy
discussion of her efforts to obtain an attorney. (Tr. 116-122). The ALJ expressed concern that one of
the attorneys Ms. Page attempted to retain refused to represent her because the attorney did not have her
entire file. (Tr. 119). Ms. Page explained, however, that this attorney told her he could not represent
5 -OPINION AND ORDER
her because her date last insured was September 30, 1998, not because he did not have her entire file.
(Id.). After additional discussion, during which Ms. Page began to discuss the specifics of her appeal,
the ALJ reminded her that before "you tell me any of that we still have to resolve the issue of whether
you want to waiver your right to representation today." (Tr. 122). Ms. Page replied, "Oh, thank you.
Okay. Yes. Let's get on with it." (Id.). Based on the record, I find Ms. Page voluntarily waived her
right to counsel.
IV.
Ms. Page's Lack of Sufficient Quarters of Coverage.
Ms. Page appears to concede that she did not have sufficient quarters of coverage to reset her
date last insured. Nonetheless, she suggests averaging her income for the five years between 1999 and
2003. (Pl. Resp. to Def.'s Br. at 7, dkt. no. 19). She asserts this would "be enough to reset [the] last
date insured." (Id.). Ms. Page's suggestion is not possible as determination of coverage is set by
Congress. To have disability insurance coverage for a disability beginning after age thirty, a claimant
must have at least 20 quarters of coverage in the previous forty quarters. 42 U.S.C. § 416(i)(3)(i). There
are four quarters in a calendar year. 42 U.S.C. § 413(a)(l). A claimant's wages in a calendar year
determine how many quarters of coverage she earned that year. 42 U.S.C. § 413(a)(2)(A).
V.
Review of the Appeals Council's Action.
Ms. Page asserts that the language from the notice of the Appeals Council Action "implies that
[she] can get relief ifthe Appeals Council did not fully apply their rules." (Pl.'s Resp. to Def.'s Br. at 9,
dkt. no. 19). The notice says: "If you disagree with our action, you may ask for court review of the
Administrative Law Judge's Decision by filing a civil action." (Id.; Tr. at 4 (emphasis added to both)).
In other words, if a claimant disagrees with the Appeals Council's decision to deny a claimant's request
for review of the ALJ's decision, the claimant may file a civil action seeking review of the ALJ's
decision, not of the Appeals Council's decision. The decisions of the Appeals Council are discretionary,
6 -OPINION AND ORDER
and discretionary actions by an agency are not reviewable. Krumpelman v. Heckler, 767 F.2d 586, 588
(9th Cir. 1985). Accordingly, Ms. Page's argument fails.
CONCLUSION
For the reasons stated, I find substantial evidence in the record supports the ALJ' s decision.
Accordingly, I AFFIRM the decision. I DISMISS this action with prejudice.
IT IS SO ORDERED.
DATED this
day of April, 2018.
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