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Atsu O. Acolatse v. Michael J. Astrue

September 26, 2011


The opinion of the court was delivered by: Lucy H. Koh United States District Judge


Plaintiff Atsu O. Acolatse ("Plaintiff") brings this action pursuant to 42 U.S.C. Sections 405(g) and 1383(c) to obtain review of Defendant Social Security Administration‟s ("Defendant" 19 or "SSA") final decision denying his claim for disability insurance benefits. Plaintiff seeks an 20 order reversing the SSA‟s final decision and awarding benefits, or alternatively remanding for a 21 new hearing. Presently before the Court are the parties‟ cross-motions for summary judgment. 22

Having considered the parties‟ papers and the administrative record, the Court DENIES Plaintiff‟s 23 motion for summary judgment, ECF No. 31, and GRANTS Defendant‟s cross-motion for summary 24 judgment. ECF No. 38.


A. Factual History

Plaintiff alleges he suffered from kidney disease, which began in 1991, deteriorated to the point of kidney failure, and necessitated a kidney transplant on January 22, 2008. Administrative Transcript ("Tr.") 75, 476; Pl.‟s Mot. 7. His symptoms, which included high blood pressure, back 3 and flank pain, swelling, dizziness, shortness of breath, and fatigue, caused him trouble lifting, 4 moving, standing, and sitting for extended lengths of time. Tr. 75, 105, 109, 476. Plaintiff ceased 5 work as a warehouse clerk on July 15, 1992, allegedly due to these symptoms. See Tr. 75, 94; Pl.‟s 6

Mot. at 4. 7

Plaintiff pursued medical treatment for his kidney disease in the United States until 1994, 8 when he returned to the country of his birth, Ghana. Tr. 476. During his time in Ghana, from 1994 9 to 2000, Plaintiff was treated by "traditional practitioners," who prescribed "herbs and dietary 10 supplements." Pl.‟s Mot. at 5. According to Plaintiff, these traditional practitioners repeatedly tested his blood, and the results of those tests are part of the record. Pl.‟s Mot. at 6; Tr. 324-52.

Plaintiff returned to the United States in 2000. Pl‟s Mot. 5. From 2000 to 2002, he was 13 treated for kidney disease at Santa Clara Valley Medical Center. Tr. 133-213. Santa Clara Valley 14 Medical Center performed several tests on Plaintiff, including: blood tests, see, e.g., id. at 197, 209; 15 a CT-guided biopsy, id. at 141, 209; and an exercise tolerance test on June 2, 2000, indicating that Plaintiff had "good functional capacity." Id. at 213. From 2002 to 2004, Plaintiff was treated at the 17 U.S. Medical Center for Federal Prisoners, in Springfield, Missouri. Id. at 355-58, 388-414. The 18 U.S. Medical Center also performed tests on Plaintiff‟s blood, and began dialysis treatment for 19 Plaintiff‟s kidney disease in February or March 2003. Id. at 353, 357, 588. Since 2004, Plaintiff 20 has been treated at El Camino Renal Group, where he has primarily seen Dr. Cynthia Lin. Id. at 21 214-320.

B. Procedural History

On May 24, 2004, Plaintiff applied for disability insurance benefits based on his kidney 24 disease. See Tr. 58-60, 75. Following the application‟s initial denial, id. at 41, Plaintiff filed a 25 request for reconsideration on August 26, 2004. See id. at 46, 105. This request was also denied 26 on October 15, 2004. Id. at 47. Plaintiff‟s request for a hearing before an ALJ was granted, id. at 52-54, and on November 22, 2005, ALJ Hannon issued a decision denying disability insurance benefits. Id. at 23-25. ALJ Hannon concluded that, while Plaintiff was currently disabled, there 2 was no evidence showing Plaintiff was disabled on or before December 31, 1997, his date last 3 insured. Id. at 25. Plaintiff filed a complaint requesting judicial review of ALJ Hannon‟s decision on October 20, 2007, Acolatse v. Astrue, 7-CV-04262-PVT (N.D. Cal. Oct. 29, 2007), ECF No. 1. On April 6 16, 2009, Magistrate Judge Trumbull concluded that ALJ Hannon had "committed legal error in 7 not considering all of the pertinent medical evidence presented and for failing to appoint a medical 8 expert to help ascertain [a disability] onset date. . . ." Tr. at 484. 9 Plaintiff received a new hearing on September 29, 2009, before ALJ Rogozen. Id. at 647- 93. The SSA retained a medical expert ("ME"), Dr. Gerber, to assess Plaintiff‟s testimony and the medical evidence in the record. See id at 649, 653-54. Relying on the ME‟s opinion and on the 12 record, ALJ Rogozen found that Plaintiff was not disabled on or before December 31, 1997, and 13 again denied disability insurance benefits. Id. at 455-67.

On May 11, 2010, Plaintiff filed the present complaint requesting judicial review of ALJ Rogozen‟s decision. See ECF No. 1. Plaintiff filed a motion for summary judgment ("Plaintiff‟s Motion") on March 24, 2011. See ECF No. 31. Defendant Michael J. Astrue, Commissioner of 17 the Social Security Administration ("Defendant"), filed a motion for summary judgment 18 ("Defendant‟s Motion") on April 13, 2011. See ECF No. 38. Plaintiff filed his reply to 19 Defendant‟s motion on April 27, 2011. ECF No. 39.


A.Standard for Reviewing the ALJ Decision

The Court has authority to review the ALJ decision pursuant to 42 U.S.C. § 405(g). The Court may only disturb the ALJ decision if it is unsupported by substantial evidence in the record 24 as a whole or if it did not apply the proper legal standard. Vertigan v. Halter, 260 F.3d 1044, 1049 25 (9th Cir. 2001). "Substantial evidence is such relevant evidence as a reasonable mind might accept 26 as adequate to support a conclusion." Id. at 1049 (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Even if the evidence supports more than one rational interpretation, the Court must still uphold the ALJ‟s conclusion. See Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

B.Standard for Determining Disability

The Social Security Act defines disability as the "inability to engage in any substantial 4 gainful activity by reason of any medically determinable physical or mental impairment which can 5 be expected to result in death or which has lasted or can be expected to last for a continuous period 6 of not less than 12 months . . . ." 42 U.S.C. § 423(d)(1)(A) (2006). The SSA regulations list 7 certain impairments that meet the definitional requirements of disability. 20 C.F.R. § 404, Subpart 8 P, App. 1 (2011). To qualify for disability insurance benefits, a claimant must show that his 9 impairment or combination of impairments met or medically equaled these requirements, id. § 10 404.1525(d), on or before the date he was last insured. Social Security Regulation 83-20, 1983 SSR LEXIS 25, at *1 (SSR 1983). An impairment which does not reach disabling ...

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