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Dittler v. Berryhill

United States District Court, D. Oregon, Portland Division

January 30, 2018

SHALON E. DITTLER, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          OPINION AND ORDER

          Robert E. Jones Senior Judge United States District Court.

         Plaintiff Shalon Dittler appeals the Commissioner's decision denying her application for disability insurance benefits under Title II of the Social Security Act. The court has jurisdiction under 42 U.S.C. § 405(g). I AFFIRM the Commissioner's decision.

         PRIOR PROCEEDINGS

         Dittler filed a previous claim alleging disability due to migraines, asthma, and depression. Admin. R. 234. In a decision dated January 22, 2013, the Commissioner determined that Dittler was not disabled at any time up to and including that date. Admin. R. 96. In her present claim, Dittler alleges she became disabled on January 23, 2013, the day after the previous determination that she was not disabled. Admin. R. 16, 35. She alleges disability due to an increase in the severity of the impairments alleged in her previous claim. Admin. R. 16-17, 234. Dittler's insured status under the Social Security Act expired on December 31, 2016. Admin. R. 16. She must establish that she became disabled on or before that date to prevail on her claim. 42 U.S.C. § 423(a)(1)(A). Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). Accordingly, the relevant period for the claim now on appeal runs from January 22, 2013 through December 31, 2016.

         The ALJ applied the five-step disability determination process described in 20 C.F, R. § 404.1520. See Bowen v. Yuckert, 482 U.S. 137, 140(1987). Admin. R. 19-25. The ALJ found that, during the relevant period, Dittler's ability to perform basic work activities was limited by asthma, migraines, depression, and PTSD. Admin. R. 19. She found that, despite these impairments, Dittler retained the residual functional capacity ("RFC") to perform work requiring light exertion with limited postural activities such as crouching, stooping, climbing and so forth, limited exposure to respiratory irritants, and no exposure to extreme cold, loud noise, or workplace hazards. The ALJ found Dittler retained the capacity to perform tasks and work with instructions consistent with unskilled and entry level semiskilled jobs. Admin, R. 20.

         The vocational expert ("VE") testified that a person with Dittler's vocational, factors and RFC could perform the activities required for a number of light, entry level occupations, such as sales clerk, gate guard, and merchandise marker, which together represent over one million jobs in the national economy. Admin. R. 24-25, 71 -72. The ALJ concluded that Dittler had not shown she was disabled within the meaning of the Social Security Act during the period that is relevant for her claim. Admin. R. 25.

         STANDARD OF REVIEW

         The district court must affirm the Commissioner's decision if it is based on proper legal standards and the findings of fact are supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004). Substantial evidence need riot be a preponderance; it is such relevant evidence that a reasonable person might accept as adequate to support a conclusion. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006). The Commissioner's factual findings must be upheld if supported by inferences reasonably drawn from the record, even if another rational interpretation is also supported. Batson, 359 F.3d at 1193; Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

         ASSIGNMENTS OF ERROR

         The plaintiff bears the burden of showing that the ALJ erred and that any error was harmful. McLeod v. Astrue, 640 F.3d 881, 886-87 (9th Cir. 2011). Dirtier contends the ALJ erroneously discounted the opinion of her treating physician, Daniel Constien, M.D., and failed to give proper weight to a rating decision by the Department of Veterans Affairs ("VA").

         DISCUSSION

         For further background, the record reflects that Dirtier began to exp erience migraines in about 2006 and that her symptoms have been consistent since 2007. Admin. R. 86-87, 310. Dr. Constien has been Dittler's family physician since 2007 and has treated her for migraines with medications, including Maxalt, Reglan, Motrin, and Vicodin. Admin. R. 21, 86-87, 1163, 1166.

         The previous ALJ found no record of urgent care treatment for migraine symptoms and no provider had observed Dirtier while she experienced migraine symptoms; the evidence supporting a migraine condition during the previous claim consisted primarily of Dittler's subjective statements. Admin. R. 87. The previous ALJ found that Dittler's migraines were not disabling at any time up to the date of the previous decision, January 22, 2013. Admin. R. 86-87, 96. That decision created a presumption of continuing nondisability which Dittler must overcome by demonstrating a material change in circumstances after that decision. Chavez v. Bowen, 844 F.2d 691, 693 (9th Cir. 1988).

         Dittler has not shown a material change in her migraine symptoms. As in the previous claim, no provider has observed her experiencing a migraine and she has not required urgent care for migraine symptoms since the previous decision. She has not reported an increase in the severity or frequency of her migraine symptoms since the previous decision. Admin. R. 21, 398-399, 436, 470, 483. Indeed, in ...


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