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ZIFF v. CHATER

March 28, 1996

STEVE L. ZIFF, Plaintiff,
v.
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.



The opinion of the court was delivered by: WALKER

 Plaintiff has filed this action under 42 USC § 405(g) seeking judicial review of defendant's denial of his application for social security disability insurance ("SSDI"). Pending before the court are cross-motions for summary judgment. For the reasons described below, the court GRANTS defendant's motion and DENIES plaintiff's motion.

 I

 A

 On January 27, 1992, plaintiff filed an application for SSDI benefits under Title II of the Social Security Act. Plaintiff's application was denied, denied again upon reconsideration and denied once again by an administrative law judge ("ALJ") in a decision dated March 25, 1994. The ALJ's decision became the final decision of the Commissioner when the Appeals Council declined to review it on September 16, 1994.

  B

 The Commissioner's determination that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record as a whole and if the Commissioner applied the proper legal standards. Curry v Sullivan, 925 F.2d 1127, 1129 (9th Cir 1990). "Substantial evidence means more than a mere scintilla, but less than a preponderance." Magallanes v Bowen, 881 F.2d 747, 750 (9th Cir 1989). It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id; Richardson v Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971). Such inferences and conclusions as the Commissioner may reasonably draw from the evidence will also be upheld. Mark v Celebrezze, 348 F.2d 289, 293 (9th Cir 1965).

 On review, the court considers the record as a whole, not just the evidence supporting the decision of the Commissioner. Weetman v Sullivan, 877 F.2d 20 (9th Cir 1989). It is the role of the trier of fact, not this court to resolve conflicts in evidence. Richardson, 402 U.S. at 400. If the evidence supports more than one rational interpretation, the court must uphold the decision of the ALJ. A decision supported by substantial evidence, however, will still be set aside if the proper legal standards were not applied in weighing the evidence and making the decision. Brawner v Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir 1987).

 C

 1

 In order to be eligible for SSDI benefits, plaintiff must establish that he became disabled prior to the expiration date of his insured status. 42 USC §§ 416(i)(2)(C), 416(i)(3)(A); 20 CFR § 404.131; Flaten v Secretary of Health and Human Services, 44 F.3d 1453, 1459 (9th Cir 1995). In this case, it is undisputed that plaintiff's insured status expired on September 30, 1985. The parties dispute whether plaintiff became disabled before this date. The court need not resolve this dispute, however, because, as discussed below, plaintiff fails to meet other dispositive requirements for receiving SSDI benefits. The court therefore assumes for purposes of this motion that plaintiff was in fact disabled prior to September 30, 1985. The court therefore need not address plaintiff's contention that the ALJ's conclusions in this regard were not supported by substantial evidence.

 2

 Plaintiff must show that his disability incapacitated him from performing substantial gainful activity continuously from the date last insured through at least 12 months prior to the date he filed his application. 42 USC § 416(i)(2)(F); 20 CFR § 404.320(b)(3); Flaten, 44 F.3d at 1462. Plaintiff in this case must therefore demonstrate continuous disability from September 30, 1985, to January 27, 1991, the date one year prior to his application for benefits.

 The ALJ found that plaintiff's employment and earnings in 1988-1990 as an automobile salesman and an electrical estimator constituted substantial gainful activity during the September 30, 1985, to January 27, 1991, period, and thus denied plaintiff's application. Plaintiff argues that the ALJ erred in this conclusion, not because of any alleged inadequacy in the evidence, but instead because of alleged errors of law. Specifically, plaintiff contends that the ALJ misapplied the law regarding two alleged exclusions to the substantial gainful employment limitation: the "trial work period" exclusion and ...


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