United States District Court, D. Montana, Missoula Division
GREGORY J. M., Plaintiff,
ANDREW M. SAUL, Commissioner of Social Security, Defendant.
Kathleen L. DeSoto United States Magistrate Judge.
brings this action under 42 U.S.C. § 405(g) seeking
judicial review of a partially favorable decision by the
Commissioner of Social Security on his applications for
disability insurance benefits and supplemental security
income benefits under Titles II and XVI of the Social
Security Act, 42 U.S.C. §§ 401 et seq., 1381 et
protectively filed an application for Title II disability
insurance benefits in April 2014, alleging disability since
July 6, 2006. (Doc. 4, at 192). Plaintiff later amended his
onset date to May 7, 2009 (doc. 4, at 50), and he was last
insured for Title II disability benefits on September 30,
2011. (Doc. 4, at 1013). Plaintiff's claim was denied
initially and on reconsideration, and by an ALJ after an
administrative hearing. (Doc. 4, at 145-47). The Appeals
Council denied Plaintiff's request for review of the
ALJ's decision, and Plaintiff appealed. (Doc. 4, at
8-12). On November 9, 2017, this Court reversed the
Commissioner's final decision and remanded the matter for
further administrative proceedings. (Doc. 4, at 1149-1166).
meantime, on November 7, 2016, Plaintiff filed an application
for Title XVI supplemental security income benefits. (Doc. 4,
at 1040). That application was combined with Plaintiff's
Title II application, and on September 25, 2018, the ALJ
issued a partially favorable decision. (Doc. 4, at 1013-26).
For purposes of Plaintiff's application for Title II
disability insurance benefits, the ALJ found he was not
disabled through September 30, 2011, the date last insured.
But with respect to supplemental security income benefits,
the ALJ found Plaintiff disabled as of November 7, 2016, the
date he filed his Title XVI application.
January 7, 2019, Plaintiff filed this action pursuant to 42
U.S.C. § 405(g) seeking judicial review of the ALJ's
decision to the extent he concluded Plaintiff was not
disabled prior to his date last insured and denied his
application for Title II disability insurance benefits.
Standard of Review
U.S.C. § 405(g) provides a limited waiver of sovereign
immunity, allowing for judicial review of social security
benefit determinations after a final decision of the
Commissioner made after a hearing. See Treichler v.
Commissioner of Social Sec. Admin., 775 F.3d 1090, 1098
(9th Cir. 2014). A court may set aside the
Commissioner's decision “only if it is not
supported by substantial evidence or is based on legal
error.” Treichler, 775 F.3d at 1098 (quoting
Andrews v. Shalala, 53 F.3d 1035, 1039
(9th Cir. 1995). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Widmark v. Barnhart, 454 F.3d 1063, 1070
(9th Cir. 2006). “The ALJ is responsible for
determining credibility, resolving conflicts in medical
testimony, and resolving ambiguities.” Edlund v.
Massanari, 253 F.3d 1152, 1156 (9th Cir.
2001). “Where evidence is susceptible for more than one
rational interpretation, ” the court must uphold the
ALJ's decision. Burch v. Barnhart, 400 F.3d 676,
679 (9th Cir. 2005). “Finally, the court
will not reverse an ALJ's decision for harmless error,
which exists when it is clear from the record that ‘the
ALJ's error was inconsequential to the ultimate
nondisability determination.'” Tommasetti v.
Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008)
(quoting Robbins v. Soc. Sec. Admin., 466 F.3d 880,
885 (9thCir. 2006)).
qualify for disability benefits under the Social Security
Act, a claimant bears the burden of proving that (1) he
suffers from a medically determinable physical or mental
impairment that has lasted or can be expected to last for a
continuous period of twelve months or more; and (2) the
impairment renders the claimant incapable of performing past
relevant work or any other substantial gainful employment
that exists in the national economy. 42 U.S.C. §§
423(d)(1)(A), 423(d)(2)(A). See also Batson v.
Commissioner of Soc. Sec. Admin., 359 F.3d 1190, 1193-94
(9th Cir. 2004).
determining whether a claimant is disabled, the Commissioner
follows a five-step sequential evaluation process. 20 C.F.R.
§§ 404.1520 and 416.920. If a claimant is found to
be “disabled” or “not disabled” at
any step, the ALJ need not proceed further. Ukolov v.
Barnhart, 420 F.3d 1002, 1003 (9th Cir.
2005). The claimant bears the burden of establishing
disability at steps one through four of this process.
Burch v. Barnhart, 400 F.3d 676, 679 (9th
one, the ALJ considers whether the claimant is engaged in
substantial gainful activity. 20 C.F.R. §§
404.1520(a)(4)(i) and 416.920(a)(4)(i). If so, then the
claimant is not disabled within the meaning of the Social
two, the ALJ must determine whether the claimant has any
impairments, singly or in combination, that qualify as severe
under the regulations. 20 C.F.R. §§
404.1520(a)(4)(ii) and 416.920(a)(4)(ii). If the ALJ finds
that the claimant does have one or more severe impairments,
the ALJ will proceed to step three.
three the ALJ compares the claimant's impairments to the
impairments listed in the regulations. 20 C.F.R. §§
404.1520(a)(4)(iii) and 416.920(a)(4)(iii). If the ALJ finds
at step three that the claimant's impairments meet or
equal the criteria of a listed impairment, then the claimant
is considered disabled. 20 C.F.R. §§
404.1520(a)(4)(iii) and 416.920(a)(4)(iii).
ALJ proceeds beyond step three, he must assess the
claimant's residual functional capacity. The
claimant's residual functional capacity is an assessment
of the work-related physical and mental activities the
claimant can still do on a regular and continuing basis
despite his limitations. 20 C.F.R. §§ 404.1545(a),
416.945(a); Social Security Ruling (SSR) 96-8p. The
assessment of a claimant's residual functional capacity
is a critical part of steps four and five of the sequential
four, the ALJ considers whether the claimant retains the
residual functional capacity to perform his past relevant
work. 20 C.F.R. §§ 404.1520(a)(4)(iv) and
416.920(a)(4)(iv). If the claimant establishes an inability
to engage in past work, the burden shifts to the Commissioner
at step five to establish that the claimant can perform other
work that exists in significant numbers in the national
economy, taking into consideration claimant's residual
functional capacity, age, education, and work experience. 20
C.F.R. §§ 404.1520(a)(4)(v) and 416.920(4)(v). The
ALJ may satisfy this burden through the testimony of a
vocational expert or by referring to the Medical-Vocational
Guidelines set forth in the regulations at 20 C.F.R. part
404, subpart P, appendix 2. If the ALJ meets this burden, the
claimant is not disabled.
followed the five-step sequential evaluation process in
evaluating Plaintiff's claim. At step one, the ALJ found
that Plaintiff met the insured status requirements of the
Social Security Act through September 30, 2011. The ALJ
further found that Plaintiff had engaged in substantial
gainful activity after the original alleged onset date of
July 7, 2006. As the ALJ noted, however, Plaintiff had
amended his onset date to May 7, 2009, to coincide with the
date he stopped working. (Doc. 4, at 1015-16).
two, the ALJ found that since the May 7, 2009 amended alleged
onset date, Plaintiff has had the following severe
impairments: major depressive disorder, personality disorder,
post-traumatic stress disorder (PTSD), and ventricular
tachycardia. (Doc. 4, at 1016). At step three, the ALJ found
that Plaintiff does not have an impairment or combination of
impairments that met or medically equaled any impairment
described in the Listing of Impairments, 20 C.F.R.
§§ 404.1520(d), 416.920(d); 20 C.F.R. pt. 404,
subpt. P, app. 1. (Doc. 4, at 1016-17).
steps four and five, the ALJ made two different residual
functional capacity assessments. For purposes of
Plaintiff's application for Title II disability insurance
benefits, the ALJ focused on Plaintiff's residual
functional capacity for the period between his amended
alleged onset date of May 7, 2009 and the expiration of his
insured status on September 30, 2011. The ALJ found that
Plaintiff's statements as to the severity of his symptoms
during this period were not fully supported, and determined
that he had the residual functional capacity to perform a
reduced range of light work. (Doc. 4, at 1017-18). The
ALJ's residual functional capacity assessment included
several exertional and non-exertional limitations. Relevant
here, the ALJ incorporated the following non-exertional
He could tolerate brief and superficial contact with one
member of the public on an occasional basis. He could
tolerate occasional contact with coworkers at a work site
with six or fewer workers, or with separate cubicles. He
could understand, carry out, and remember simple tasks and
instructions provided work did not require constant focus or
stress. He could tolerate occasional new learning of simple
on this residual functional capacity, the ALJ found at step
four that Plaintiff could not perform his past relevant work
as a custodian and salesperson. (Doc. 4, 1024). Proceeding to
step five, the ALJ found based on the vocational expert's
testimony that there were other jobs existing in significant
numbers in the national economy that Plaintiff could have
performed. (Doc. 4, at 1024-1025). Thus, the ALJ found that
Plaintiff was not disabled within the meaning of the Social
Security Act at any time prior to the expiration of his
insured status on September 30, 2011.
purposes of Plaintiff application for Title XVI supplemental
security income benefits, however, the ALJ assessed
Plaintiff's residual functional capacity beginning on
November 7, 2016, the date of his application. The ALJ observed
that Plaintiff's psychological symptoms had gotten worse
after the date last insured and found that his allegations
regarding his symptoms and limitations during this period
were consistent with the evidence. As a result, the ALJ found
that beginning on November 7, 2016, Plaintiff's residual
functional capacity for light work was subject to two
additional non-exertional limitations: “He is expected
to be off task more than 15% of the workday and will miss
work more than two days per month.” (Doc. 4, at 1023).
Based on this residual functional capacity, the ALJ again
found at step four that Plaintiff could not perform any past
relevant work. (Doc. 4, 1024). Proceeding to step five, the
ALJ found based on the vocational expert's testimony