Adkins v. Commissioner Social Security Administration

Filing 21

OPINION AND ORDER: For the reasons stated, I find the ALJ's decision was supported by substantial evidence. Accordingly, I AFFIRM the decision. This case is DISMISSED with prejudice. Signed on 11/30/2018 by Judge Michael W. Mosman. (kms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

MICHAELA.,1
Plaintiff,

No. 3:17-cv-01659-MO

v.

OPINION AND ORDER

NANCY BERRYHILL, Acting
Commissioner of Social Security,
Defendant.

MOSMAN,J.,
Plaintiff Michael A. ("Plaintiff') seeks judicial review of the Commissioner of Social
Security's decision denying his application for Disability Insurance Benefits. I have jurisdiction
under 42 U.S.C. § 405(g) to review the decision of the Administrative Law Judge (ALJ). For the
reasons stated below, I AFFIRM the ALJ' s decision.

PROCEDURAL BACKGROUND
Plaintiff filed his application for Title II Disability Insurance Benefits (DIB) with the
Commissioner on July 31, 2013, alleging a disability onset date of January 1, 2010. He also filed
a claim for Title XVI Supplemental Security Income (SSI), which was approved. Plaintiff was

1

In the interest of privacy, this opinion uses only the first name and the initial of the last name of
the nongovernmental party in this case.
1 - OPINION AND ORDER

found eligible for SSI beginning in August 2013. The DIB claim was initially denied on March
27, 2014, and again upon reconsideration on August 5, 2014. Plaintiff then filed a timely request
for a hearing on August 22, 2014. An ALJ held a hearing on March 17, 2016, in which Plaintiff
was represented by council and testified, as did a Vocational Expert. The ALJ issued a decision
on May 31, 2016, denying Plaintiffs application for DIB on the basis that he was not disabled,
as defined by the Social Security Act ("the Act"), during the period from January 1, 2010 until
the date he last qualified for disability insurance benefits ("date last insured"). The Appeals
Council denied review and Plaintiff appealed to this Comi.

THE ALJ'S FINDINGS
The ALJ made her decision based upon the five-step sequential evaluation process
established by the Secretary of Health and Human Services. See Tackett v. Apfel, 180 F.3d 1094,
1098-99 (9th Cir. 1999); 20 C.F.R. §§ 404.1520. At the first four steps of the process, the
burden of proof is on the claimant; only at the fifth and final step does the burden of proof shift
to the Commissioner. Tackett, 180 F.3d at 1098.
At Step One, the ALJ determined that Plaintiff did not engage in substantial gainful
activity during the period from his alleged onset date of January 1, 2010, through his date last
insured of March 31, 2012.
At Step Two, the ALJ determined that Plaintiffs migraines and avascular necrosis were
severe impaim1ents between January 1, 2010, and March 31, 2012.
At Step Three, the ALJ dete1mined that, as of his date last insured, Plaintiff did not have
an impahment or combination of impairments that met or medically equaled the severity of an
impairment listed in 20 C.F .R. Part 404, Subpart P, Appendix 1.

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Next, the ALJ determined that Plaintiff had the residual functional capacity (RFC) to
perform light work, with the restrictions that he could never climb ladders, ropes, or scaffolds
and that he could not be exposed to vibration or to hazards such as unprotected heights and
moving mechanical parts.
At Step Four, the ALJ determined that Plaintiff was capable of performing past relevant
work as a sales representative, sales manager, telemarketer, and front desk clerk. Because the
ALJ determined that Plaintiff had the RFC to do his past relevant work, Plaintiff was not
disabled under the Act and the ALJ was not required to engage in the fifth step of the analysis.
STANDARD OF REVIEW
I review the ALJ' s decision to ensure the ALJ applied proper legal standards and that the
ALJ's findings are suppmied by substantial evidence in the record. 42 U.S.C. § 405(g); Bray v.
Comm 'r ofSoc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (explaining that the ALJ's
decision must be suppmied by substantial evidence and not based on legal error). " 'Substantial
evidence' means more than a mere scintilla, but less than a preponderance; it is such relevant
evidence as a reasonable person might accept as adequate to support a conclusion." Lingenfelter
v. Astrue, 504 F.3d 1028, 1035 (9th Cir. 2007) (quoting Robbins v. Soc. Sec. Admin., 466 F.3d
880, 882 (9th Cir. 2006)). The Commissioner's decision must be upheld if it is a rational
interpretation of the evidence, even if there are other possible rational interpretations.
Magallanes v. Bowen, 881 F.2d 747, 750 (9th Cir. 1989). Where the evidence can support
affirming the ALJ's decision, the reviewing court may not substitute its judgment for that of the
ALJ. Robbins, 466 F.3d at 882.

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DISCUSSION
Plaintiff argues the ALJ en-ed as a matter of law in denying his claim for DIB because the
ALJ's decision was not supported by substantial evidence in the record. Specifically, he alleges
the ALJ failed to (1) provide clear and convincing reasons for discounting Plaintiff's testimony
regarding his symptoms; (2) provide germane reasons for discounting the testimony of a lay
witness, Ms. Laura Tenny; (3) demonstrate through clear and convincing evidence that Plaintiff
did not meet or equal the requirements for Listing 12.04 in 20 C.F.R. Part 404, Subpart P,
Appendix 1; and (4) incorporate all of the medical findings into the determination of Plaintiff's
RFC. Because a claimant can qualify for DIB only if his "disability begins by [the] date last
insured," Wellington v. Berryhill, 878 F.3d 867, 872 (9th Cir. 2017), Plaintiff must show that the
ALJ erred in determining that he was not disabled prior to March 31, 2012.

I.

The ALJ's Assessment of Plaintiff's Testimony
Plaintiff argues that the ALJ e1Ted in failing to give adequate reasons for discrediting his

account of his symptoms prior to the date last insured. The ALJ determined that Plaintiff's
testimony about the intensity, persistence, and limiting effects of the symptoms from his
impairments was not consistent with the medical evidence and other evidence in the record.
Therefore, after accounting for all of Plaintiff's symptoms, the ALJ found that Plaintiff had the
RFC to perfo1m light work during the period from January 1, 2010 to March 31, 2012.
When a claimant has medically documented impai1ments that could reasonably be
expected to produce some degree of the symptoms complained of, and the record contains no
affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the
severity of ... symptoms only by offering specific, clear and convincing reasons for doing so."

Smolen v. Chafer, 80 F.3d 1273, 1281 (9th Cir. 1996). A general assertion that the claimant is

4 - OPINION AND ORDER

not credible is insufficient; the ALJ must "state which ... testimony is not credible and what
evidence suggests the complaints are not credible." Dodrill v. Shalala, 12 F.3d 915, 918 (9th
Cir. 1993). The reasons proffered must be "sufficiently specific to permit the reviewing court to
conclude that the ALJ did not arbitrarily discredit the claimant's testimony." Orteza v. Shalala,
50 F.3d 748, 750 (9th Cir. 1995). "If the ALJ's credibility finding is supported by substantial
evidence in the record, [the court] may not engage in second-guessing." Thomas v. Barnhart,
278 F.3d 947, 959 (9th Cir. 2002).
In assessing a claimant's credibility, the ALJ may consider objective medical evidence
and the claimant's treatment history, as well as any unexplained failure to seek treatment or
follow a prescribed course of treatment. Smolen, 80 F.3d at 1284. The ALJ may also consider
the claimant's daily activities, work record, and the observations of physicians and third parties
with personal knowledge about the claimant's functional limitations. Id. Specifically, when a
claimant's work history undercuts his assertions, the ALJ may rely on that contradiction to
discredit the claimant. See Greger v. Barnhart, 464 F.3d 968, 972 (9th Cir. 2006).
The ALJ's assessment of Plaintiffs credibility is supported by substantial evidence in the
record. The ALJ determined that Plaintiffs medically determinable impailments could
reasonably be expected to cause some of the symptoms he alleged. But, for several reasons, the
ALJ found that Plaintiffs testimony was not a reliable source for determining the severity of his
symptoms and their limiting effect during the period from the alleged date of onset until the date
last insured.
First, the ALJ found that Plaintiffs symptoms prior to the date last insured were largely
controlled by medication or other treatment. Surveying medical reports from 2011 and 2012, the
ALJ described a pattern of diminishing symptoms that resulted from managing Plaintiffs

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medications. Tr. 30. This was contrary to Plaintiffs statements that his symptoms prior to
March 31, 2012, were as disabling as those he experienced at the time of the administrative
hearing. Tr. 54. Although Plaintiff argues that the ALJ misinterpreted the record, many of the
repmis he cites in support of his argument were based on observations of his symptoms after the
date last insured. See, e.g., Pl.'s Br. [13] at 21. Second, the ALJ cited numerous instances in the
record where Plaintiffs treating physicians described him as "healthy appearing" and repmied
normal physical and neurological examinations. Tr. 32-33. This is contrary to Plaintiffs
testimony that he lost a significant amount of weight prior to the date last insured and that he
experienced cognitive difficulties. Third, the ALJ found that Plaintiffs testimony about
extensive limitations resulting from depression was contradicted by his history of voluntarily
stopping mental health treatment. Tr. 33. Additionally, the ALJ noted that, prior to his date last
insured, Plaintiff paiiicipated in activities of daily life that were inconsistent with his claims of
disabling symptoms and limitations: Plaintiff made contemporaneous reports that he lived alone,
was able to drive independently, exercised, socialized with friends, and went to church. Tr. 28,
34. Finally, the ALJ noted that Plaintiff had not accurately represented the extent of his work
activities during the relevant time period. Although Plaintiff testified at the administrative
hearing that he had not sought work since 2008, the record reflected that he ran a small
marketing firm in 2011, working less than seventeen hours per week. Tr. 34. Although the ALJ
did not find that this work constituted substantial gainful activity, the ALJ found that the
inconsistency diminished the reliability of Plaintiffs testimony about his symptoms prior to the
date last insured.
The ALJ's reasons for finding Plaintiffs testimony unreliable are clear, convincing, and
sufficiently specific for me to determine that her decision was not arbitrary. The inconsistencies

6 - OPINION AND ORDER

between the record and Plaintiffs testimony about his symptoms supports the ALJ's finding that
the testimony was not a reliable source for determining the limitations imposed by Plaintiffs
symptoms. Plaintiff conceded that his testimony at the hearing was subject to his "faulty
memory." PL 's Br. [13] at 25. Although it is possible to offer alternate interpretations of some
of the evidence in the record, the ALJ' s determination was based on substantial evidence and it
must be upheld. See Batson v. Comm 'r ofSoc. Sec. Admin., 359 F.3d 1190, 1198 (9th Cir.
2004).

II.

The ALJ's Evaluation of Lay Witness Testimony
Plaintiff argues that the ALJ e11'ed in discounting the testimony of a lay witness, Laura

Tenny, who provided a written statement detailing her observations of Plaintiffs symptoms. Ms.
Tenny was a friend of Plaintiff before the date of alleged onset. She was also paid by the Oregon
Department of Human Services to care for Plaintiff starting in 2014, after his date last insured.
Ms. Tenny stated that she had witnessed Plaintiffs poor health in March 2012: she saw him
experience a seizure and noticed his depression and cognitive difficulties. Tr. 292. Ms. Tenny
also listed some of Plaintiffs other symptoms, although not necessarily on the basis of firsthand
knowledge. Ms. Tenny relayed that Plaintiff suffered fainting spells caused by standing up,
frequent migraines, twenty-eight blackouts in May 2011 caused by "[o]ne of his doctors
mismanag[ing] his medications," and that Plaintiff lost eighty-four pounds between 2011 and
2012. Id
Lay witness testimony as to a claimant's symptoms is competent testimony that an ALJ
must consider. Dodrill, 12 F.3d at 918-19 (citing Sprague v. Bowen, 812 F.3d 1226, 1232 (9th
Cir. 1987)). Therefore, an ALJ may only discount lay witness testimony by providing reasons
that are germane to each witness. Dodrill, 12 F.3d at 919. A germane reason to discredit lay

7 - OPINION AND ORDER

testimony is that it is substantially similar to a claimant's validly discredited allegations.

Valentine v. Comm 'r Soc. Sec. Admin., 574 F.3d 685, 694 (9th Cir. 2009). An ALJ need not
"discuss every witness's testimony on an individualized, witness-by-witness basis. Rather, if the
ALJ gives germane reasons for rejecting testimony by one witness, the ALJ need only point to
those reasons when rejecting similar testimony by a different witness." Molina v. Astrue, 674
F.3d 1104, 1114 (9th Cir. 2012) (citing Valentine, 574 F.3d at 694).
The ALJ in this case gave a germane and specific reason for discounting Ms. Tenny's
written statement: her statement repeated Plaintiff's testimony about the symptoms he suffered
prior to his date last insured. Tr. 34. Because the ALJ provided clear and convincing reasons for
rejecting Plaintiffs testimony about the intensity, persistence, and limiting effects of his
symptoms, the ALJ's description of Ms. Tenny's statement as substantially similar to Plaintiff's
testimony was a germane reason for discounting her statement.

III.

The ALJ's Step Two Analysis
Plaintiff alleges that the ALJ e1Ted in finding that the criteria for satisfying listing 12.04

in 20 C.F.R. Part 404, Subpart P, Appendix 1, "Depressive, bipolar and related disorders," were
not met in this case. In the alternative, Plaintiff argues that the ALJ should have found that his
impairments were medically equivalent to the criteria for listing 12.04. See Sullivan v. Zebley,
493 U.S. 521, 531 (1990). The ALJ did not analyze Plaintiffs depression in the step three
analysis because she determined in her step two analysis that Plaintiff's depression was not a
severe impairment. Instead, the ALJ found that Plaintiff's migraines and avascular necrosis were
severe impairments.
At step two, the ALJ must determine whether the claimant has a medically severe
impairment or combination of impairments, including any mental impairments. Keyser v.

8 - OPINION AND ORDER

Comm 'r ofSoc. Sec. Admin., 648 F.3d 721, 725 (9th Cir. 2011). Because Plaintiff made a claim
for a mental impairment, the ALJ was required to make use of a "special technique" for
evaluating the severity of mental impairments. 20 C.F.R. §§ 404.1520a. Pursuant to the special
technique, an ALJ must determine whether a claimant had a medically determinable mental
impaitment by rating the degree of functional limitation in four functional areas: 1) activities of
daily living; 2) social functioning; 3) concentration, persistence, or pace; and 4) episodes of
decompensation. If an ALJ determines that a mental impairment is "severe," she proceeds to
step three of the disability analysis to determine if the impairment meets or equals a specific
listed mental disorder. Id "Cycles of improvement and debilitating symptoms are a common
occurrence, and in such circumstances it is e1ror for an ALJ to pick out a few isolated instances
of improvement over a period of months and years and to treat them as a basis for concluding a
claimant is capable of working." Garrison v. Colvin, 759 F.3d 995, 1017 (9th Cir. 2014) (citing

Holohan v. Massanari, 246 F.3d 1195, 1205 (9th Cir. 2001)). A claimant, however, bears the
burden of showing that his impairments equal or meet one of the listings in 20 C.F .R. Part 404,
Subpart P, Appendix 1. See Tackett, 180 F.3d at 1098.
The ALJ considered the effect of Plaintiff's depression on the four functional areas
during the period from the alleged onset of symptoms until the date last insured. Tr. 28. The
ALJ found that Plaintiff had mild limitation in social functioning because he repmied selfisolating but also reported having some friends and participated in some social activities. The
ALJ also found that Plaintiff had mild limitation in in concentration, persistence and pace. This
finding was based on balancing Plaintiff's self-reports regarding cognitive issues with treatment
providers' notes that he presented as cognitively intact with normal remote and recent memory
and that he was able to articulate his medical problems clearly. Because Plaintiff was able to live

9 - OPINION AND ORDER

independently, the ALJ found no limitation in activities of daily living. The ALJ also found no
episodes of decompensation. Based on these findings, the ALJ determined that Plaintiffs
depression did not cause more than minimal limitation on his ability to perform basic mental
work activities.
Plaintiff argues that the ALJ incon-ectly evaluated the record. To support this argument,
Plaintiff cites medical reports in the record that demonstrate limitations that are greater than
"mild." Many of these citations are to reports or evaluations that were conducted after the date
last insured. See, e.g., Tr. 577, 641, 542, 526, 645, 640. In particular, a neuropsychological
report that Plaintiff uses to establish that "his depression was so high that it was unusual even for
clinical groups," and "his persistence was so poor, he was unable to receive an accurate reading
because his depression was so high," was completed in February 2014. Pl. 's Br. [13] at 26.
These reports establish only that Plaintiff suffered limitations greater than "mild" after his date
last insured.
Although there is some evidence that suggests Plaintiff suffered significant limitations in
some of the four functional areas prior to the date he was last insured, the role of a district court
assessing the ALJ' s decision is not to choose between rational interpretations of the record.
Here, the ALJ's decision was supported by substantial evidence and must be upheld. The ALJ
did not impermissibly select a few isolated instances to determine that Plaintiffs depression was
not a severe impairment prior to his date last insured. Instead, the ALJ evaluated the entirety of
the record for the time between the alleged date of onset and the date last insured. Plaintiffs
arguments to the contrary are unavailing to the extent they rely on evaluations and reports that
occun-ed after his date last insured.

10 - OPINION AND ORDER

IV.

The ALJ's Formulation of Plaintiff's Residual Functional Capacity
Plaintiff argues that the ALJ erred in formulating his RFC because she failed to consider

the restrictions that resulted from his blackouts, depression, anxiety, migraines, and reduced
concentration, persistence, and pace. Plaintiff assetis that the RFC therefore did not take into
account all of his limitations. Because the RFC was used to find that Plaintiff was capable of
performing light work, and his past relevant work in patiicular, Plaintiff claims that the ALJ's
formulation of the RFC was harmful legal error.
At Step Two of the sequential evaluation process, "the ALJ assesses whether the claimant
has a medically severe impairment or combination of impairments that significantly limits his
ability to do basic work activities." Webb v. Barnhart, 433 F.3d 683, 686 (9th Cir. 2005). "An
impairment is not severe if it does not significantly limit the physical or mental ability to do
basic work activities." 20 C.F.R. § 404.1522(a). In addition, "[i]mpairments that can be
controlled effectively with medication are not disabling for the purpose of determining
eligibility" for social security benefits. Warre v. Comm 'r ofSoc. Sec. Admin., 439 F.3d 1001,
1007 (9th Cir. 2006). Finally, the Act defines disability as an impairment that has can be
expected to result in death or has "lasted or can be expected to last for a continuous period of not
less than twelve months." 42 U.S.C. § 423(d)(l)(A).
An individual's residual functional capacity is the most "an individual can do despite his
or his limitations or restrictions." SSR 96-8p, 1996 WL 374184, at *4 (July 2, 1996).
Limitations from nonsevere impairments are still considered in formulating an individual's
residual functional capacity. Id. ("[L]imitations due to such a 'not severe' impairment may
prevent an individual from performing past relevant work or may narrow the range of other work
that the individual may still be able to do."). Only limitations suppmied by substantial evidence

11 - OPINION AND ORDER

must be incorporated into the residual functional capacity and, by extension, the dispositive
hypothetical question posed to the vocational expert at Steps Four and Five. Osenbrock v. Apfel,
240 F.3d 1157, 1164-65 (9th Cir. 2001).

A. Blackouts
Plaintiff argues that the ALJ e1Ted in failing to co1Tectly assess the limitations that
resulted from his blackouts, or syncope, which occun-ed frequently at some time prior to the date
last insured. Plaintiff argues that the ALJ' s formulation of the RFC was deficient because it did
not account for the effect of Plaintiff's syncope on his ability to work on a regular and continuing
basis.
The ALJ evaluated the medical history of Plaintiff's syncope and determined that the
condition did not last more than twelve months and that it resolved with a change in blood
pressure medication after his date last insured. Tr. 32-33. In February 2011, Plaintiff
complained of syncope that was due to orthostatic hypotension resulting from his blood pressure
medications. In May 2011, however, Plaintiff stopped taking his blood pressure medication and
reported no dizziness, syncope, or hypotension. Plaintiff made similar rep01is in June and
December of2011 and again in January and March of 2012. These rep01is establish both that the
condition was managed effectively with medication and that it did not last more than twelve
months. Accordingly, there was substantial evidence in the record to support the ALJ's
determination that Plaintiff's syncope did not impose limitations that should have been
accounted for in the RFC.

12 - OPINION AND ORDER

B. Depression
Plaintiff argues that ALJ eiTed in failing to find that his depression was a severe
impairment at Step Two and, in discrediting evidence that his depression was a severe
impairment, failing to incorporate that evidence in the RFC.
As noted in Section III of this opinion, the ALJ' s determination that Plaintiffs depression
was not a severe impaitment was based on substantial evidence. In finding that Plaintiffs
depression was not a severe impairment, the ALJ evaluated the entirety of the record for the time
between the alleged date of onset and the date last insured. Because the RFC must account only
for limitations that are supported by the record, it was not legal error for the ALJ to exclude
discredited evidence when subsequently fmmulating the RFC. Accordingly, the ALJ did not err
in failing to include additional limitations due to Plaintiffs depression.

C. Anxiety
Plaintiff argues that the ALJ e1Ted in dismissing limitations arising from his anxiety.
Although Plaintiffs brief included an exhaustive account of the medical record, his anxiety was
only mentioned once. Pl.' s Brief [ 13] at 9. In May 2011, Plaintiff reported experiencing
anxiety, in addition to thirteen other symptoms of depression. Tr. 298. Because Plaintiff has not
shown that there was substantial evidence in the record regarding his anxiety, the ALJ's decision
to formulate an RFC that did not include limitations due to anxiety was not harmful legal error.

D. Migraines
Plaintiff argues the ALJ erred in failing to properly assess the limitations he experienced
as a result of migraines. Although the ALJ found that Plaintiffs migraines were a severe
impairment, she also found that the limitations imposed by the migraines did not preclude light
work. Plaintiff argues that the ALJ' s formulation of the RFC was deficient because it discounted

13 - OPINION AND ORDER

the effect of Plaintiffs migraines on his ability to work on a regular and continuing basis.
Plaintiff argues that his migraines limited him to performing less than light work.
The record contains reports of Plaintiffs migraines prior to his date last insured. The
severity of the symptoms associated with those migraines varied between January 1, 2010 and
March 31, 2012. Plaintiff appears to have first reported his migraines in September 2010, at
which time he claimed the migraines had started four months prior. Tr. 30-31. The effects of
his migraines during this time appear to have been severe: he reported five to seven migraines
per month, with significant side effects. Plaintiff was eventually diagnosed with recunent
posttraumatic headaches. Starting in March 2011, however, Plaintiff began to report that he
experienced fewer headaches as a result of taking a new medication. He again reported that
medication decreased the frequency and severity of his headaches in May 2011. Tr. 764. Then
in June 2011, after being prescribed a second medication, Plaintiff reported that the frequency
and severity of his headaches had decreased significantly. Tr. 311. By August 2011, Plaintiff
reported that his headaches were "under control." Tr. 307.
In formulating the RFC, the ALJ assessed the duration of Plaintiffs impaitment due to
migraines. The ALJ also evaluated the degree to which this impaitment was controlled
effectively with medication. Accordingly, the ALJ did not err by failing to include any
additional exertional or nonexertional limitations due to Plaintiffs migraines in the RFC.

E. Reduced concentration, persistence, and pace
Finally, Plaintiff argues the ALJ erred in failing to properly assess the limitations he
experienced as a result of his reduced concentration, persistence, and pace. Plaintiff argues that
the ALJ e1Ted in formulating the RFC because it did not account for the effect of Plaintiffs
reduced concentration, persistence, and pace on his ability to work on a regular and continuing

14 - OPINION AND ORDER

basis. Plaintiff argues that his reduced concentration, persistence, and pace limited him to
performing less than light work, which was the residual functional capacity dete1mined by the
ALJ.
The ALJ considered Plaintiffs "cognitive issues" in fmmulating the RFC but, for two
reasons, declined to include any limitations related to concentration, persistence, and pace. First,
Plaintiffs statements to treatment providers during the relevant time period were contradicted by
the providers' own assessments of Plaintiffs cognitive abilities. Tr. 33. The ALJ noted one
such instance when Plaintiff complained of "mental fogginess, poor memory and poor
concentration," but the treatment provider noted that Plaintiff "appeared cognitively intact and
was able to articulate his problems very clearly without difficulty." Id. Second, the ALJ noted
that Plaintiff had never been diagnosed with a condition associated with reduced cognitive
ability. Id.
Plaintiff argues that his ability to articulate his symptoms was sporadic and does not
demonstrate that there was no limitation due to reduced concentration, persistence, or pace. Pl.' s
Br. [13] at 22. Plaintiff correctly argues that symptoms related to mental health conditions may
wax and wane. Id. These temporary improvements should not form the basis for a finding that
there is no impahment or limitation if the entirety of the record demonstrates otherwise. But
Plaintiff has failed to show that the record demonstrates limitations due to reduced concentration,
persistence, or pace that should affect the formulation of an RFC. Although Plaintiff cites
assessments documenting his cognitive issues in support of his argument that any improvement
was only temporary, many of these assessments occmTed after the date last insured. See, e.g., Tr.
96, 349, 566, 640. Because Plaintiffs application for DIB must demonstrate that his symptoms

15 - OPINION AND ORDER

occun-ed prior to the date last insured, assessments after the date last insured do not demonstrate
that the ALJ improperly evaluated the record.
Accordingly, the ALJ did not en- by failing to account for any additional nonexertional
limitations due to Plaintiff's alleged reduced concentration, persistence, or pace in the RFC.
CONCLUSION

For the reasons stated, I find the ALJ's decision was supported by substantial evidence.
Accordingly, I AFFIRM the decision. This case is DISMISSED with prejudice.

IT IS SO ORDERED.
DATED this~ day ofNovember, 2018.

MICHAEL W. MOSMAN
Chief United States Di~r~ Judge

16 - OPINION AND ORDER