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Montgomery v. Berryhill

United States District Court, S.D. California

June 27, 2017

SEAN E. MONTGOMERY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE RE: PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT [DOC. 25]; AND DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT [DOC. 26]

          Hon. Peter C. Lewis United States Magistrate Judge.

         I. INTRODUCTION

         Plaintiff Sean E. Montgomery has filed a pro se complaint seeking judicial review of Defendant Social Security commissioner Nancy A. Berryhill's denial of his application for Supplemental Security Income and for Disability Insurance Benefits under the Social Security Act. (Doc. 1.) Plaintiff has filed a Motion for Summary Judgment (Doc. 25), and Defendant filed a Cross-Motion for Summary Judgment and Opposition to Plaintiff's Motion for Summary Judgment (Doc. 26-1.) For the reasons set forth below, the Court RECOMMENDS that Plaintiff's motion be DENIED and that Defendant's motion be GRANTED.

         II. PROCEDURAL HISTORY

         On June 5, 2007, Plaintiff filed an application for Disability Insurance and Supplemental Security Income pursuant to Titles II and XIV of the Social Security Act, alleging bipolar disorder, phobias, depression, paranoia, suicidal thoughts, insomnia, and physical impairments beginning January 1, 1993. (A.R 256, 322.) Plaintiff's disability onset date was later amended to June 5, 2007. (A.R. 36.) Plaintiff's applications were denied initially and upon reconsideration. (A.R 126-29.) Thereafter, Plaintiff filed a written request for a hearing. (A.R. 140-50.) An Administrative Law Judge (“ALJ”) held a hearing on May 26, 2011. (A.R. 49-113.) On July 6, 2011, the ALJ issued a written decision finding Plaintiff not disabled because he could perform a significant number of jobs in the national economy. (A.R. 32-48.) After considering all the evidence in the record as a whole, the ALJ found:

1. Plaintiff's disability onset date was amended to June 5, 2007. (A.R. 36.)
2. Amendment of Plaintiff's disability onset date was appropriate in light of Title XVI eligibility. (A.R. 36.)
3. Plaintiff had not engaged in substantial gainful activity since the alleged disability onset date of June 5, 2007. (A.R. 36.)
4. Plaintiff had the following severe impairments: back pain; right elbow, hand, and wrist impairment; nerve damage in the right elbow; gastroesophageal reflux disease (“GERD”); status post right foot fracture; dysthymia or mood disorder NOS; and substance abuse (drugs), by history. (A.R. 36.)
5. Plaintiff's impairments did not meet or medically equal one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. (A.R. 37.)
6. Plaintiff retained the residual functional capacity (“RFC”) to lift or carry twenty-five pounds frequently and fifty pounds occasionally; stand and/or walk for a total of about six hours out of an eight-hour workday; sit for a total of about six hours out of an eight-hour workday; is restricted to frequent climbing, balancing, stooping, kneeling, crouching, and crawling; and mentally limited to work with no public contact and minimal contact with co-workers. (A.R. 38.)
7. Plaintiff has no past relevant work. (A.R. 39.)
8. Plaintiff was 41 years old when the application was filed, which is defined as a younger individual age 18-49. (A.R. 39.)
9. Plaintiff has a high school education and is able to communicate in English. (A.R. 39.)
10. Plaintiff's education and training do not permit direct entry into skilled work. (A.R. 40.)
11. Transferability of job skills is not an issue because Plaintiff does not have past relevant work. (A.R. 40.)
12. In light of Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (A.R. 40.)
13. Plaintiff had not been under a disability, as defined in the Social Security Act, from June 5, 2007, through the date of his decision on July 6, 2011. (A.R. 41.)

         On January 29, 2013, the Appeals Council denied Plaintiff's request to review the ALJ decision, making the ALJ's decision the Commissioner's final decision. (A.R. 26-29.) Plaintiff then filed a federal complaint on July 1, 2016, seeking judicial review of the Commissioner's decision. (Doc. 1.)

         III. ADMINISTRATIVE RECORD

         A. Psychological Evidence

         1. Prison and Parole Records

         Chronological Interdisciplinary Progress Notes (“chronos”) from August 9, 2008 to May 8, 2007, detail Plaintiff's treatment while incarcerated before the alleged onset date of Plaintiff's disability. (A.R. 437-63.) These treatment notes contain summaries of brief interactions with Plaintiff on a semi-regular basis. Plaintiff had a consistently moderate treatment plan throughout this time and the records show no significant increase in either treatment frequency or medication. (Id.)

         Frequently, these treatment notes tie Plaintiff's mood and affect to the prison's efforts to move Plaintiff out of his secure housing unit, where he lived alone, and into housing with a cellmate. (A.R. 442, 447-48, 453-55, 457-63.) Plaintiff indicated that he had a previous experience with a “cellie” where the individual attacked him in his sleep and he had to “beat him down badly” in an effort to defend himself. (A.R. 454.) Plaintiff worried that having to live with a cellie again would create a potential conflict that Plaintiff wanted to avoid given that he already had two strikes and a third would ...


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