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Michael A. v. Berryhill

United States District Court, D. Oregon, Portland Division

November 30, 2018

MICHAEL A., [1] Plaintiff,
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff Michael A. ("Plaintiff) seeks judicial review of the Commissioner of Social Security's decision denying his application for Disability Insurance Benefits. I have jurisdiction under 42 U.S.C. § 405(g) to review the decision of the Administrative Law Judge (ALJ). For the reasons stated below, I AFFIRM the ALJ's decision.


         Plaintiff filed his application for Title II Disability Insurance Benefits (DIB) with the Commissioner on July 31, 2013, alleging a disability onset date of January 1, 2010. He also filed a claim for Title XVI Supplemental Security Income (SSI), which was approved. Plaintiff was found eligible for SSI beginning in August 2013. The DIB claim was initially denied on March 27, 2014, and again upon reconsideration on August 5, 2014. Plaintiff then filed a timely request for a hearing on August 22, 2014. An ALJ held a hearing on March 17, 2016, in which Plaintiff was represented by council and testified, as did a Vocational Expert. The ALJ issued a decision on May 31, 2016, denying Plaintiffs application for DIB on the basis that he was not disabled, as defined by the Social Security Act ("the Act"), during the period from January 1, 2010 until the date he last qualified for disability insurance benefits ("date last insured"). The Appeals Council denied review and Plaintiff appealed to this Court.


         The ALJ made her decision based upon the five-step sequential evaluation process established by the Secretary of Health and Human Services. See Tackett v. Apfel, 180 F.3d 1094, 1098-99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520. At the first four steps of the process, the burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift to the Commissioner. Tackett, 180 F.3d at 1098.

         At Step One, the ALJ determined that Plaintiff did not engage in substantial gainful activity during the period from his alleged onset date of January 1, 2010, through his date last insured of March 31, 2012.

         At Step Two, the ALJ determined that Plaintiffs migraines and avascular necrosis were severe impairments between January 1, 2010, and March 31, 2012.

         At Step Three, the ALJ determined that, as of his date last insured, Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.

         Next, the ALJ determined that Plaintiff had the residual functional capacity (RFC) to perform light work, with the restrictions that he could never climb ladders, ropes, or scaffolds and that he could not be exposed to vibration or to hazards such as unprotected heights and moving mechanical parts.

         At Step Four, the ALJ determined that Plaintiff was capable of performing past relevant work as a sales representative, sales manager, telemarketer, and front desk clerk. Because the ALJ determined that Plaintiff had the RFC to do his past relevant work, Plaintiff was not disabled under the Act and the ALJ was not required to engage in the fifth step of the analysis.


         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 V 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)). The Commissioner's decision must be upheld 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). Where the evidence can support affirming the ALJ's decision, the reviewing court may not substitute its judgment for that of the ALJ. Robbins, 466 F.3d at 882.


         Plaintiff argues the ALJ erred as a matter of law in denying his claim for DIB because the ALJ's decision was not supported by substantial evidence in the record. Specifically, he alleges the ALJ failed to (1) provide clear4 and convincing reasons for discounting Plaintiffs testimony regarding his symptoms; (2) provide germane reasons for discounting the testimony of a lay witness, Ms. Laura Tenny; (3) demonstrate through clear and convincing evidence that Plaintiff did not meet or equal the requirements for Listing 12.04 in 20 C.F.R. Part 404, Subpart P, Appendix 1; and (4) incorporate all of the medical findings into the determination of Plaintiff s RFC. Because a claimant can qualify for DIB only if his "disability begins by [the] date last insured," Wellington v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017), Plaintiff must show that the ALJ erred in determining that he was not disabled prior to March 31, 2012.

         I. The ALJ's Assessment of Plaintiff s Testimony

         Plaintiff argues that the ALJ erred in failing to give adequate reasons for discrediting his account of his symptoms prior to the date last insured. The ALJ determined that Plaintiffs testimony about the intensity, persistence, and limiting effects of the symptoms from his impairments was not consistent with the medical evidence and other evidence in the record. Therefore, after accounting for all of Plaintiff s symptoms, ...

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