Arthur Lopez Jr v. Michael J. Astrue, No. 5:2007cv00383 - Document 19 (C.D. Cal. 2008)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Patrick J. Walsh (see attached order for further details) (es)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 ARTHUR LOPEZ, JR., Plaintiff, 11 12 13 v. 14 MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, 15 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) Case No. ED CV 07-383-PJW MEMORANDUM OPINION AND ORDER 16 17 Before the Court is Plaintiff s appeal of a decision by Defendant 18 Social Security Administration ( the Agency ), denying his application 19 for disability insurance benefits. 20 Plaintiff was not disabled within the meaning of the Social Security 21 Act at any time during the period at issue is supported by substantial 22 evidence, it is affirmed. 23 Because the Agency s decision that Plaintiff applied for disability benefits on September 30, 2003, 24 alleging that he had been disabled since November 3, 1994. 25 (Administrative Record ( AR ) 65, 85.) 26 denied initially and on reconsideration, Plaintiff requested and was 27 granted a hearing before an administrative law judge ( ALJ ). 28 Plaintiff appeared with counsel and testified at the hearing on After his application was 1 October 12, 2005. (AR 680-743.) Plaintiff told the ALJ, among other 2 things, that he first became disabled on March 3, 1995. On May 26, 2006, the ALJ denied the application. 3 (AR 685.) (AR 13-22.) 4 First, he found that Plaintiff had engaged in substantial gainful 5 activity for much of the time that he alleged that he was disabled 6 and, thus, did not qualify for benefits. 7 he found that Plaintiff retained the residual functional capacity to 8 work. 9 commenced this action. 10 (AR 19-22.) (AR 15-18.) Alternatively, After the Appeals Council denied review, Plaintiff Plaintiff claims that the ALJ failed to properly evaluate the 11 medical evidence and wrongly concluded that he was not credible. 12 (Joint Stip. at 3-8, 13-15.) 13 the ALJ s finding that he was working almost continuously during the 14 entire period he claims that he was disabled, a finding which is 15 dispositive as to that period of time, even if Plaintiff s other 16 arguments were meritorious.1 17 rejects Plaintiff s claims in this appeal. 18 Plaintiff does not, however, challenge For the following reasons, the Court An individual is not disabled if he can work, i.e., engage in 19 substantial gainful activity. 20 C.F.R. § 404.1571. In addition, to 20 be disabled, a clamant must establish that his impairment precluded 21 work (or will preclude work in the future) for at least 12 months. 42 22 23 24 25 26 27 28 1 Nor has Plaintiff attempted to argue that work-related expenses would bring his earnings below the statutory presumption or that he worked in a special environment. See, e.g., Katz v. Sec y of Health & Human Servs., 972 F.2d 290, 293-94 (9th Cir. 1992). In fact, Plaintiff stated in his initial disability report that, although he became unable to work because of his condition on November 3, 1994, he continued to work the same number of hours, and with no change in job-related duties, through July 12, 2003. (AR 85-86.) 2 1 U.S.C. § 1382c(a)(3)(A). 2 proof that he has engaged in substantial gainful activity. 3 § 404.1574(a)(1). 4 The Agency may use a claimant s earnings as 20 C.F.R. Here, relying on Plaintiff s earnings statements, the ALJ made 5 uncontroverted findings that Plaintiff was working from January 1996 6 to December 2004, and from June to October 2005. 7 disability onset date of March 3, 1995, the ALJ found that the only 8 periods when Plaintiff was not engaged in substantial gainful activity 9 were March 3 through December 31, 1995; January 1 through May 31, (AR 18.) Based on a 10 2005; and November 1, 2005 through May 26, 2006, the date of the ALJ s 11 decision. 12 exceeds the required 12-month period, the ALJ found that Plaintiff s 13 periods of alleged disability do not satisfy the duration 14 requirement. 15 evidence in the record and is affirmed.2 (AR 13, 18.) (AR 22.) Because none of these periods meets or This finding is supported by substantial 16 Plaintiff claims that the ALJ made a mistake of fact in finding 17 that he had amended his disability onset date from November 3, 1994 to 18 March 3, 1995. 19 because, if Plaintiff s onset date was November 3, 1994, as alleged in 20 his application, (AR 65, 85), he could be eligible for disability 21 benefits for the 14-month period between November 3, 1994 and December (Joint Stip. at 2.) The difference is important 22 23 2 24 25 26 27 28 The record demonstrates that Plaintiff earned between $10,461.58 and $28,960.49 every year from 1996 to 2004, making his monthly income average between approximately $871 (in 2003) and $2,413 (in 2002), (AR 76), amounts which exceeded the substantial gainful activity earnings levels provided in the governing regulations. See 20 C.F.R. § 404.1574(a),(b). Additionally, Plaintiff reported $6,538.10 in earnings in 2005, (AR 83), an amount which the ALJ found exceeded the substantial gainful activity level for that year. (AR 17.) Plaintiff has not challenged these findings. 3 1 31, 1995. 2 disability onset date was March 3, 1995, is supported by substantial 3 evidence in the record. 4 But, as explained below, the ALJ s finding that Plaintiff s At the hearing, the ALJ asked Plaintiff when he first became 5 disabled. (AR 685.) 6 the date. It was March, I believe, the 3rd. 7 this conflicted with the onset date alleged in Plaintiff s 8 application, (AR 65, 85), neither Plaintiff nor his counsel, who was 9 present at the hearing, raised any issue about the new date. Plaintiff responded: 1995. I don t remember (AR 685.) Although In his 10 decision, the ALJ adopted the March 3rd date as the onset date. 11 Plaintiff claims that this was error. 12 The ALJ was entitled to rely on Plaintiff s testimony in finding 13 that March 3, 1995, was the onset date. 14 Sec. Admin., 172 F.3d 690, 694 (9th Cir. 1999) ( Although [claimant] 15 alleged a date of onset of June 1, 1991 in his application for 16 benefits, he agreed at oral argument to accept the earliest onset date 17 supported by the medical evidence ... September 29, 1993. ) Moreover, 18 the medical evidence does not support an earlier onset date. For the 19 period from November 1994 through March 1995, the record contains only 20 one note, dated December 6, 1994, outlining a complaint of rectal 21 bleeding and internal fissures and Plaintiff s request for surgical 22 intervention, with the added notation that Plaintiff was followed in 23 general surgery for this problem, last appt 2/94, missed last 2 24 appts. (AR 348, 586-87.) See Gatliff v. Comm r of Soc. Plaintiff did not allege in his 25 26 27 28 4 1 application that rectal bleeding or internal fissures limited his 2 ability to work, (AR 85), nor did he do so at any time during the 3 hearing. 4 Thus, an earlier onset date was not warranted.3 There remains, however, an issue as to disability for the 12- 5 month period following November 1, 2005 (the last date Plaintiff was 6 gainfully employed). 7 work during this period (even though a portion of it extended beyond 8 the date of the ALJ s decision), he would have been eligible for 9 benefits. Had Plaintiff established that he was unable to There is, however, very little evidence in the record 10 supporting any such argument. 11 primarily from Plaintiff s submissions and his testimony. 12 with this evidence is that the ALJ found that Plaintiff was not 13 credible. 14 the Court concludes that the ALJ s credibility finding is fully 15 supported by the record. 16 allegations and testimony are marked by inconsistency and self- 17 contradiction. 18 medical evidence with the ALJ s finding that Plaintiff was not 19 credible, you arrive at only one conclusion: the evidence does not And the evidence that is there comes The problem Though Plaintiff challenges that finding in this appeal, (AR 20.) As the ALJ observed, [Plaintiff s] When you combine the dearth of objective 20 21 22 23 24 25 26 27 28 3 Although neither party has raised the issue, this Court also finds that Plaintiff s situation is distinguishable from that presented in Gatliff, 172 F.3d at 692-93, where the Ninth Circuit held that a claimant who can hold a job for only a short period of time is not capable of substantial gainful activity. Here, unlike the claimant in Gatliff, who could perform a job for only two months at a time, Plaintiff testified that he regularly worked as a carpet installer until approximately July of 2003. (AR 692.) 5 1 establish that Plaintiff would have been disabled for a 12-month 2 period beginning November 1, 2005. 3 decision is affirmed. For these reasons, the ALJ s 4 5 IT IS SO ORDERED. 6 DATED: September 23 , 2008. 7 8 9 PATRICK J. WALSH UNITED STATES MAGISTRATE JUDGE 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 S:\PJW\Cases-Soc Sec\LOPEZ, A 383\Memo_Opinion.wpd 6
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