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Tarr v. Berryhill

United States District Court, E.D. California

May 15, 2017

CHRISTOPHER TARR, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          FINDINGS AND RECOMMENDATIONS

          CAROLYN K. DELANEY UNITED STATES MAGISTRATE JUDGE.

         Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (“Commissioner”) finding plaintiff was not disabled for purposes of receiving Disability Insurance Benefits (“DIB”) under Title II of the Social Security Act (“Act”). For the reasons discussed below, the court will recommend that plaintiff's motion for summary judgment be denied and the Commissioner's cross-motion for summary judgment be granted.

         I. BACKGROUND

         Plaintiff, born March 30, 1965, applied on March 3, 2015 for DIB, alleging disability beginning June 30, 2013. Administrative Transcript (“AT”) 159-62. Plaintiff alleged he was unable to work due to attention deficit hyperactivity disorder (“ADHD”), anxiety, degenerative disc disease, degenerative joint disease, lumbar spine impairment, and cervical spine impairment. AT 180. In a decision dated February 24, 2016, the ALJ determined that plaintiff was not disabled.[1] AT 11-21. The ALJ made the following findings (citations to 20 C.F.R. omitted):

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2018.
2. The claimant has not engaged in substantial gainful activity since June 30, 2013, the alleged onset date.
3. The claimant has the following severe impairments: attention deficit hyperactivity disorder (ADHD), right elbow epicondylitis, bilateral flat feet and cervical radiculopathy.
4. The claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1.
5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) except the claimant can sit, stand and/or walk for six hours in an eight-hour day, must alternate sitting and standing in one hour intervals, can frequently reach with the right upper extremity, cannot perform fast-paced work, cannot sustain intense concentration for more than thirty minutes without a five minute change of focus and may be absent or off task five percent of the time.
6. The claimant is unable to perform any past relevant work.
7. The claimant was born on March 30, 1965 and was 48 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date.
8. The claimant has at least a high school education and is able to communicate in English.
9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is “not disabled, ” whether or not the claimant has transferrable job skills.
10. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.
11. The claimant has not been under a disability, as defined in the Social Security Act, from June 30, 2013, through the date of this decision.

AT 13-20.

         II. ISSUES PRESENTED

         Plaintiff argues that the ALJ committed the following errors in finding plaintiff not disabled: (1) improperly considered and weighed the opinions of treating physicians Dr. Copeland and Dr. Reza when determining plaintiff's residual functional capacity (“RFC”); and (2) improperly found plaintiff's testimony regarding the disabling nature of the symptoms arising from his functional limitations less than fully credible.

         III. LEGAL STANDARDS

         The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007) (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th ...


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