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Gregory J. M. v. Saul

United States District Court, D. Montana, Missoula Division

August 26, 2019

GREGORY J. M., Plaintiff,
v.
ANDREW M. SAUL, Commissioner of Social Security, Defendant.

          ORDER

          Kathleen L. DeSoto United States Magistrate Judge.

         Plaintiff 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 seq.

         I. Procedural Background

         Plaintiff 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).

         In the 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.

         On 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.

         II. Legal Standards

         A. Standard of Review

         42 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)).

         B. Disability Determination

         To 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).

         In 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 Cir. 2005).

         At step 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 Security Act.

         At step 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.

         At step 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).

         If the 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 evaluation process.

         At step 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.

         III. Discussion

         The ALJ 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).

         At step 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).

         At 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.[1] 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 limitations:

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 work tasks.

         Based 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.

         For 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.[2] 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 ...


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