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Joan L. Conatser v. Michael J. Astrue Commissioner of Social Security

March 28, 2012

JOAN L. CONATSER, PLAINTIFF,
v.
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for a Period of Disability and Disability Insurance Benefits ("DIB") under Title II of the Social Security Act. The parties' cross-motions for summary judgment are pending. For the reasons discussed below, the court grants the Commissioner's motion and denies plaintiff's motion.

I. BACKGROUND

Plaintiff Joan Conatser formally applied for a Period of Disability and DIB on February 7, 2007, alleging that she had been disabled since January 1, 2005.*fn1 Administrative Record ("AR") 49, 77. Plaintiff's application was initially denied on July 3, 2007, and upon reconsideration on November 2, 2007. Id. at 51, 56. On June 9, 2009, a hearing was held before administrative law judge ("ALJ") Robert C. Tronvig, Jr. Id. at 21. Plaintiff, who was unrepresented, testified at the hearing. Id. at 21-48.

On September 3, 2009, the ALJ issued a decision finding that plaintiff was not disabled under sections 216(I) and 223(d) of the Act.*fn2 Id. at 20. The ALJ made the following specific No. 17 at 1-2. Plaintiff correctly notes that an Abbreviated DIB Review Sheet provides two onset dates, January 1, 2005 and January 12, 2007. AR 77. Plaintiff's application also states that she was unable to work due to her alleged disability beginning January 12, 2007. Id. at 72. Plaintiff argues that the ALJ erred by not asking plaintiff to clarify this discrepancy at her administrative hearing. Dckt. No. 17 at 2. The court is not required to address this argument, as plaintiff initially raised it in her reply brief. See Zamani v. Carnes, 491 F.3d 990, 997 (9th Cir. 2007) ("[A] district court need not consider arguments raised for the first time in a reply brief."). Notwithstanding plaintiff's failure to properly raise the argument, the undersigned finds that the ALJ's failure to ascertain the exact onset date was harmless because the ALJ concluded that plaintiff was not disabled at any time between January 1, 2005 and September 30, 2009. Id. at

20. Since January 12, 2007, the other potential onset date, fell between January 1, 2005 and September 30, 2009, the ALJ did not fail to consider a time period in which plaintiff may have been disabled.

findings:

1. The claimant last met the insured status requirements of the Social Security Act on September 30, 2009 (Exhibit 3D). She must establish disability prior to or on that date.

2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of January 1, 2005 through her date last insured of September 30, 2009 (20 CFR 404.1571 et seq.). Her earnings record shows that she reported being self-employed from 2006 through 2008. She earned $3,510 in 2006, $3,695 in 2007, and $3,879 in 2008 (See: DEQY). This work did not constitute substantial gainful activity under any of the three tests of substantial gainful activity for self-employed individuals. ...

3. Through the date last insured, the claimant had the following severe impairments: Degenerative disc disease of the cervical and lumbar spine, a sleep disorder, myofascial pain syndrome, consistent with fibromyalgia, and medial and lateral epicondylitis of the left elbow (20 CFR 404. 1520(c)). ...

[4]. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled one of the listed impairment in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526). ...

[5]. After careful consideration of the entire record, the undersigned finds that, through the date last insured, the claimant had the residual functional capacity to perform the full range of light work as defined in 20 CFR 404.1567(b). Dr. Mitchell found that the claimant was capable of sitting, standing, and walking for about 6 hours. She could lift and carry 20 pounds occasionally and 10 pounds frequently. She would have frequent postural limitations on bending, stooping, crouching, and climbing because of her low back pain. She might also have frequent manipulative limitations because of the carpal tunnel syndrome in her right wrist (Exhibits 12F/5-6, and 13F). ...

Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.

Lester v. Chater, 81 F.3d 821, 828 n.5 (9th Cir. 1995).

The claimant bears the burden of proof in the first four steps of the sequential evaluation process. Bowen, 482 U.S. at 146 n.5. The Commissioner bears the burden if the sequential evaluation process proceeds to step five. Id.

6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565). ...

[7]. The claimant was born [in] 1955 and was 49 years old (younger individual) on her alleged onset date of disability, January 1, 2005. At the age of 50 years, her age category changed to an individual closely approaching advanced age (20 CFR 404.1563).

[8]. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564).

[9]. The claimant has acquired skills from past relevant work (20 CFR 404.1568). ...

[10]. Considering the claimant's age, education, work experience, and residual functional capacity, the claimant had acquired work skills from past relevant work that were transferable to other occupations with jobs existing in significant numbers in the ...


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