United States District Court, W.D. Washington, Seattle
Michelle L. Peterson United States Magistrate Judge.
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.
was born in July 1957, is 61 years old 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.
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.
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.
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).
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.
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 ...