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Chris E. v. Berryhill

United States District Court, D. Utah, Central Division

February 5, 2019

Chris E., Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security Defendant.

          MEMORANDUM DECISION AND ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          Brooke C. Wells United States Magistrate Judge.

         Plaintiff, Chris E, appeals the Commissioner's denial of his application for disability benefits under Title II of the Social Security Act.[1] The court determines the decision of the Commissioner is supported by substantial evidence and the law was properly applied. Therefore, discerning no reversible error, the court affirms the Commissioner's decision.

         I

         Mr. E, [2] filed for benefits alleging disability beginning on January 12, 2012, [3] due to depression, anxiety and pain in his back and legs.[4] Plaintiff's last insured date is December 31, 2013. Under the regulations Plaintiff must establish disability on or before that date to get benefits.[5] To establish disability, Mr. E must show that he has an

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months ….”[6]

         Following an initial denial of benefits, Plaintiff requested and received a hearing before an administrative law judge (ALJ). The ALJ followed the five-step sequential evaluation process[7] and found Mr. E had the severe impairments of lumbar degenerative disc disease and depressive disorder.[8] The ALJ next found that Mr. E had the residual functional capacity (RFC) to perform light work with certain modifications.[9] Plaintiff's prior work experience includes work as a maintenance mechanic. At step five, the ALJ found that Plaintiff could perform other jobs such as marker, housekeeping cleaner or cafeteria attendant.[10] So, he was not disabled.

         After the Appeals Council denied review, the ALJ's decision became the final decision of the Commissioner for review.[11] Mr. E seeks review of the Commissioner's decision and raises two issue on appeal: 1) did the ALJ fail to correctly consider and evaluate the combined and cumulative effects of all the physical and mental impairments in determining Claimant's RFC?; and 2) did the ALJ err by not taking into consideration Plaintiff's own testimony and failing to adopt the limitations of the vocational expert in two of the hypotheticals?

         II.

         The court reviews the Commissioner's “decision only to determine whether the correct legal standards were applied and whether the factual findings are supported by substantial evidence in the record.”[12] Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. It requires more than a scintilla, but less than a preponderance.”[13] “The possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's findings from being supported by substantial evidence.”[14] Thus, the court may not “'displace the agenc[y's] choice between two fairly conflicting views, even though the court would justifiably have made a different choice had the matter been before it de novo.'”[15]

         III

         Plaintiff first challenges the ALJ's RFC assessment attacking the ALJ's “specific findings that [he] was capable of performing a range of light work, ….”[16] Plaintiff argues the ALJ failed to correctly consider and evaluate the combined and cumulative effects of the entirety of his physical and mental impairments. Further, Plaintiff asserts the ALJ's RFC assessment is not supported by substantial evidence in the record. These arguments are without merit and not supported by the record.

         Here the ALJ carefully set forth reasons supporting the finding of an RFC for light work with additional limitations. The ALJ noted inconsistencies in Plaintiff's own testimony about driving a car and trips to and from Oregon.[17] The ALJ also cited to findings by state agency medical professionals, Dr. David Peterson, Dr. Ralph McKay, Dr. Joshua Clauson and Dr. Kenneth Wallis, that supported the RFC of light work with additional limitations.[18] In addition, the ALJ considered the opinions of Plaintiff's primary care provider, Jonathan Atkins, and Dr. Timothy Grange, his orthopedic pain specialist. The ALJ discounted their opinions noting their diagnosis of cervical arthritis and a torn biceps tendon were not established until 2015 and 2016, which is after the insured period.[19] Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”[20] The evidence cited to by the ALJ is certainly more than the required scintilla[21] and supports the RFC determination.[22]

         Next, Claimant challenges the evaluation of his own testimony and that of the vocational expert (VE). The VE was presented with three hypotheticals. In one hypothetical Plaintiff was found to be capable of other work. In the other two, including one with alterations made by Plaintiff's counsel at the hearing before the ALJ, Plaintiff would have been precluded from any work. Plaintiff argues the ALJ erred by not taking into consideration his own testimony and by failing to adopt the VE's findings in the second or third hypotheticals. The court finds these arguments unpersuasive.

         Much of Plaintiff's argument centers on the ALJ's decision to discount his subjective complaints. Plaintiff argues the ALJ's decision “does not seem to address how Mr. [E's] physical, mental and social impairments impact the competitive realities of working in the modern workplace.”[23] Plaintiff, however, fails to cite to portions in the record, other than his own subjective testimony, that support the alleged severity and negative impact these impairments had upon his ...


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