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Jean P. v. Commissioner of Social Security Administration

United States District Court, D. Oregon

December 11, 2019

SOPHIE JEAN P., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINSTRATION, Defendant.

          OPINION AND ORDER

          JOLIE A. RUSSO, UNITED STATES MAGISTRATE JUDGE

         Plaintiff Sophie P. brings this action for judicial review of the final decision of the Commissioner of Social Security (“Commissioner”) denying her applications for Title II Disability Insurance Benefits (“DIB”) and Title XVI Social Security Income (“SSI”). All parties have consented to allow a Magistrate Judge enter final orders and judgment in this case in accordance with Fed.R.Civ.P. 73 and 28 U.S.C. § 636(c). For the reasons set forth below, the Commissioner's decision is affirmed and this case is dismissed.

         BACKGROUND

         Born in 1960, plaintiff alleges disability beginning December 25, 2009, due to widespread body pain, hypertension, depression, anxiety, sleep apnea, and right ear deafness.[2] Tr. 251, 280, 288. On June 12, 2017, a hearing was held before an Administrative Law Judge (“ALJ”), wherein plaintiff was represented by counsel and testified, as did a vocational expert. Tr. 77-113. On October 27, 2017, the ALJ issued a decision finding plaintiff not disabled. Tr. 63-71. After the Appeals Council denied her request for review, plaintiff filed a complaint in this Court. Tr. 1-7.

         THE ALJ'S FINDINGS

         At step one of the five step sequential evaluation process, the ALJ found that plaintiff had not engaged in substantial gainful activity since alleged onset date. Tr. 65. At step two, the ALJ determined plaintiff's bilateral knee osteoarthritis and “right side hearing loss” were medically determinable and severe. Tr. 66. At step three, the ALJ found plaintiff's impairments, either singly or in combination, did not meet or equal the requirements of a listed impairment. Tr. 67.

         Because plaintiff did not establish presumptive disability at step three, the ALJ continued to evaluate how plaintiff's impairments affected her ability to work. The ALJ resolved that plaintiff had the residual functional capacity (“RFC”) to perform light work as defined by 20 C.F.R. § 404.1567(b) and 20 C.F.R. § 416.967(b) except:

she can tolerate no more than moderate levels of noise[.] She can perform tasks that require frequent hearing, but she cannot perform tasks requiring sensitive hearing and/or detection of quiet sounds. She can tolerate occasional exposure to vibration and occasional exposure to workplace hazards such as unprotected heights and exposed moving machinery.

Tr. 67.

         At step four, the ALJ concluded plaintiff was able to perform her past relevant work as an automobile salesperson and membership solicitor, and therefore was not disabled. Tr. 71.

         DISCUSSION

         Plaintiff argues that the ALJ erred by: (1) discrediting her subjective symptom testimony; (2) failing to account for the limitations assessed by examining source Scott Alvord, Psy.D.; and (3) rejecting the medical opinion of physical therapist Patricia Brattain. Pl.'s Opening Br. 8-18 (doc. 16).

         I. Preliminary Matters

         Before reaching the substantive merits of plaintiff's appeal, the Court must address two preliminary matters. First, plaintiff's DIB and SSI claims concern different timeframes, despite the fact that plaintiff applied for benefits on the same date. Specifically, in order to be entitled to DIB, plaintiff must establish disability between the alleged onset date (i.e., December 25, 2009) and the date last insured (i.e., December 31, 2014), whereas plaintiff's SSI claim runs from the application date (i.e., October 21, 2014) through the date of the ALJ's decision. Tr. 65, 288; Price v. Massanari, 2001 WL 34047104, *5 (D. Or. Aug. 20, 2001). Because each of plaintiff's challenges inheres to non-retrospective evidence generated in 2017, well-after the date last insured, the Court finds that only plaintiff's SSI claim is at issue on appeal. See Morgan v. Colvin, 2013 WL 6074119, *10 (D. Or. Nov. 13, 2013) (medical evidence that “was completed years after claimant's date last insured and was not offered as retrospective analysis” is insufficient to establish disability within the DIB period) (citations and internal quotations and ellipses omitted).

         Second, plaintiff's counsel failed to raise any issues in relation to the ALJ's step two finding, or to otherwise argue that plaintiff was incapable of her past relevant work due to recently diagnosed impairments. See generally Pl.'s Opening Br. (doc. 16). This is significant because the ALJ wholly overlooked plaintiff's March 2017 spinal imaging study revealing significant degenerative changes. Compare Tr. 864 (March 2017 imaging study showing mild “sacroiliac osteoarthritis” and “[a]dvanced degenerative changes [in] the lower lumbar spine”), with Tr. 744 (December 2012 imaging study showing an “[u]nremarkable lumbar spine”); see also Case v. Astrue, 425 Fed.Appx. 565, 566 (9th Cir. 2011) (“ALJ must consider impairments even if they were diagnosed after the alleged date of disability onset”) (citation omitted). In addition, although plaintiff was observed with 11 tender points (only seven of which were “really tender”) in January 2013, she was not formally diagnosed with fibromyalgia until after the ALJ's decision. Tr. 23, 66, 575; see also Tr. 83 (plaintiff's counsel conceding at the hearing that there was nothing “in the record [suggesting] that the fibromyalgia has satisfactorily met the Social Security ruling”).[3]

         Plaintiff was 57 years old as of date of the ALJ's decision and did not graduate from high school, such that a finding of disability is directed by the Medical Vocational Guidelines if she is unable to return to her past relevant work and has no transferrable skills. 20 C.F.R. §§ 404.1563(e), 416.963(e); 20 C.F.R. Pt. 404, Subpt. P, Appx. 2. Stated differently, had plaintiff's counsel raised any step two and/or contingent challenge on appeal, or amended the alleged onset date as was contemplated at the hearing, plaintiff would have likely been entitled to SSI. Tr. 82-83, 111-12; see also Dahl v. Comm'r of Soc. Sec., 2015 WL 5772060, *5 (D. Or. Sept. 30, 2015) (even mild degenerative disc disease can be disabling) (collecting cases).

         However, because these issues are not currently before the Court and, as discussed below, the purported errors raised by plaintiff's counsel do not warrant remand, no recourse is available on the bases of plaintiff's current applications. See Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008) (court “will not consider matters on appeal that are not specifically and distinctly argued in an appellant's opening brief) (citation and internal quotations omitted); see also McLeod v. Astrue, 640 F.3d 881, 887-88 (9th Cir. 2011) (as amended) (party seeking reversal bears the burden of establishing harmful error). Indeed, defendant's opposition, which addresses each of plaintiff's allegations and explains why no error occurred, is essentially unopposed because plaintiff neglected to file a reply brief. See Justice v. Rockwell Collins. Inc., 117 F.Supp.3d 1119, 1134 (D. Or. 2015), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017) (“if a party fails to counter an argument that the opposing party makes . . . the court may treat that argument as conceded”) (citation and internal quotations and brackets omitted).

         Regardless, nothing prevents plaintiff from filing a new SSI application based on the impairments diagnosed in 2017. SeeEpperson-Nordland v. Colvin, 2013 WL 5774110, *3 (D. Or. Oct. 22, 2013) (res judicata applies to bar reconsideration of prior claims only if “the Commissioner has previously made a final decision premised on the ...


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