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Chilcoat v. Astrue

November 16, 2010

JAMES T. CHILCOAT, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

(Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issue:

1. The Commissioner's decision is not based on substantial evidence.*fn1

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I. SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSIONER'S DECISION

The Court must affirm if the ALJ's decision is based on substantial evidence in the record. Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

In his portion of the JS, Plaintiff asserts he is disabled due to continuing abdominal pain, nausea, heartburn, vomiting blood on several occasions, severe reflux, anxiety, and depression.

The Administrative Law Judge's ("ALJ") decision (AR 11-20) follows the familiar five-step sequential evaluation process set forth in 20 C.F.R. §404.1520(a). (See JS at 12-13.) In Plaintiff's case, after determining Plaintiff's residual functional capacity ("RFC"), the ALJ made a Step Five determination that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform, and he was therefore found not disabled under the Social Security Act. (AR 19-20.)

Critical to the Court's analysis in this case is the date his disability insurance expired, which is September 30, 2006. (AR 96.) Consequently, it is Plaintiff's burden to demonstrate that he became disabled on or before this date. See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998).

The ALJ based his determination on evidence in the record, and also received on June 5, 2008 at a hearing, at which time Plaintiff was represented by counsel, and testimony was taken from Plaintiff, a medical expert ("ME") and a vocational expert ("VE"). (AR 21-54.)

At the hearing before the ALJ, the ME testified that he reviewed relevant evidence of Plaintiff's treating physicians. The ALJ noted that Plaintiff underwent a ventral hernia repair operation on May 2, 2006 (AR 247), but as of August 2006, Plaintiff's wound was healing well, his staples were removed, and he was advised that he could resume normal activities. (AR 218.) In the opinion of the ME, based upon his review of the records, Plaintiff's RFC would include the ability to lift and/or carry 50 pounds occasionally, and 25 pounds frequently; to sit for six hours; stand and/or walk for six hours; posturing limited to occasional; avoidance of unprotected heights and hazardous machinery; and no climbing of ladders, ropes or scaffolds. (AR 41-42.) Utilizing this RFC in a hypothetical question, the VE testified that at the Step Four level of the sequential evaluation, Plaintiff would not be capable of performing his past relevant work; however, the VE identified various jobs within Plaintiff's RFC that he could perform. (AR 31-32.)

Plaintiff understandably objects to the ALJ's evaluation of his non-disability status; however, much of his argument focuses on his descriptions of subjective symptoms following the September 30, 2006 date when his disability insurance expired. Nor has Plaintiff made a persuasive or credible argument that the ALJ's decision that he was not disabled before that date was not based on substantial evidence in the record. For example, while Plaintiff now asserts that his abdominal pain has only increased and become worse, the evidence ...


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