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Cory C. v. Commissioner of Social Security

United States District Court, W.D. Washington, Seattle

June 11, 2019

ALLEN CORY C., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          Michelle L. Peterson United States Magistrate Judge.

         I. INTRODUCTION

         Plaintiff seeks review of the denial of his application for Disability Insurance Benefits. Plaintiff contends the administrative law judge (“ALJ”) erred by rejecting the medical opinions of John Jiganti, MD and adversely assessing Plaintiff's symptom testimony. (Dkt. # 10 at 1.) As discussed below, the Court AFFIRMS the Commissioner's final decision and DISMISSES the case with prejudice.

         II. BACKGROUND

         Plaintiff was born in July 1957, is 61 years old[1] and has worked as the owner and manager of a mini-storage business that closed in July 2008 due to the economic downturn (AR at 52-63), and the owner and manager of an engraving business that closed in December 2012 due to losing money during a snowstorm (id. at 48-49). See Id. at 914. Plaintiff earned no income operating either of these businesses. Plaintiff's date last insured was December 31, 2007. Plaintiff was last gainfully employed in July 2007. Id. at 912.

         On December 2, 2009, Plaintiff applied for benefits, alleging disability as of July 9, 2007. AR at 42, 114, 251-52. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing. Id. at 132. After the ALJ conducted a hearing on June 23, 2011, the ALJ issued a decision finding that Plaintiff had engaged in substantial gainful activity from the alleged onset date through the date last insured and was therefore not disabled. Id. at 132, 137.

         Plaintiff appealed that decision and the Appeals Council remanded the case with instructions to obtain additional evidence regarding Plaintiff's self-employment, specifically the comparability and worth of the Plaintiff's work activity. Id. at 146-47. The ALJ conducted a subsequent hearing on April 30, 2015, consistent with the order on remand. As part of the review, the ALJ sent interrogatories to a vocational expert to obtain additional information regarding salary or wage data related to Plaintiff's work. Id. at 11 n.1. The vocational expert also testified at the hearing. Id. During the hearing, Plaintiff's counsel requested that the ALJ disqualify himself from Plaintiff's case. Id. at 12. The ALJ denied the request. Id. The ALJ again found that the Plaintiff had engaged in substantial gainful activity from the alleged onset date through the date of last insured. Id. at 16.

         Plaintiff subsequently appealed the ALJ's second decision to this Court. On December 19, 2016, this Court reversed and remanded the case for another hearing before the ALJ to determine whether Plaintiff was an “impaired individual” within the meaning of the Social Security regulations due to his self-employment activities. See Allen Cory C. v. Colvin, C16-05386 JRC (dkt. # 12 at 2).

         On remand, another ALJ, consistent with the directions provided by this Court in its December 19, 2016 Order, considered whether there was sufficient evidence to determine whether Plaintiff was an impaired individual and whether his self-employment work activity rose to the level of substantial gainful activity. AR at 912. On this issue, the ALJ determined that since the information necessary to make this conclusion was solely within the control of the Plaintiff, and not readily available to the ALJ, the ALJ was unable to make such a determination. Id. Accordingly, the ALJ found that Plaintiff had not engaged in substantial gainful employment and proceeded with the sequential evaluation process to allow for a discussion of the medical evidence rather than focus on the self-employment aspect of Plaintiff's claim. Id. On April 4, 2018, the ALJ conducted a hearing. Id. at 910. The ALJ then issued an order finding:

Step one: Plaintiff has not engaged in substantial gainful activity since the alleged onset date of July 9, 2007.
Step two: Plaintiff has the following severe impairments: osteoarthritis of the hips; degenerative joint disease of the right knee; back pain injuries status-post motor vehicle accident in August 2006; and obesity.
Step three: These impairments do not meet or equal the requirements of a listed impairment.[2]
Residual Functional Capacity: Plaintiff can perform light work expect that he can stand and walk for two hours in an eight-hour workday and sit for up to six hours in an eight-hour workday; can never climb ladders, ropes, or scaffolds; can occasionally balance, stoop, kneel, crouch, crawl, and climb ramps and stairs; and must avoid concentrated exposure to vibrations, hazards, moving machinery, and heights.
Step four: Plaintiff can perform past relevant work as a retail store manager of both an engraving business and of ...

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