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Bruce Edward Ellis Ii v. Michael J. Astrue

September 17, 2012


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff, who is represented by counsel, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act").*fn1 In his motion for summary judgment, plaintiff contends that the administrative law judge ("ALJ") erred by: (1) crediting the opinion of the non-examining physician over the opinions of the Commissioner's examining physician and plaintiff's treating physician; (2) improperly evaluating plaintiff's obesity under the standards set out in Social Security Ruling 02-1p; and (3) failing to obtain testimony from the vocational expert regarding whether plaintiff could perform jobs that exist in the national economy given plaintiff's impairments. (See Dkt. No. 17 at 4-5.) The Commissioner filed an opposition to plaintiff's motion, along with a motion for summary judgment. (Dkt. No. 18.) For the reasons stated below, the court denies plaintiff's motion for summary judgment and grants the Commissioner's cross-motion for summary judgment.


Plaintiff was 55 years old at the time of the ALJ's decision denying plaintiff's application for benefits and has a high school diploma with two years of college education, but no college degree. (Administrative Transcript ("AT") 33.) His previous employment consists of work as a bartender from 1996 until about 2007, and as an office worker*fn3 at a tax firm. (AT 39-40.) During his time as an office worker, plaintiff worked full-time for about six years, and part-time for about 13 years; the last time he worked was part-time as an office worker, every other day for about 2-3 hours per day. (AT 40, 50.) Although plaintiff last worked part-time during the 2009 tax season as an office worker, he claims that he cannot work full time because of his ailments. (AT 35-36.) Generally, plaintiff's alleged ailments are pain in his knees, neck, and lower back; frequent headaches; heartburn; and hypertension. (See AT 47-48.)

A. Procedural Background

On February 14, 2008, plaintiff filed an application for DIB, alleging a disability onset date of April 14, 2007. (AT 65.) The Commissioner denied plaintiff's application initially on May 29, 2008, and upon reconsideration on July 8, 2008. (AT 73-76, 78-82.) Plaintiff filed a request for hearing on August 8, 2008, and the ALJ conducted a hearing regarding plaintiff's claims on September 15, 2009. (AT 27-56, 83-84.) Plaintiff, who was represented by counsel, testified at the hearing. (AT 32-54.) A vocational expert ("VE") also testified at the hearing. (AT 54-55.)

In a decision dated October 28, 2009, the ALJ denied plaintiff's application. (AT 65-72.) In reliance on the VE's testimony, the ALJ determined that plaintiff could still perform his past relevant work as an office manager, data entry clerk, and billing clerk.*fn4 (AT 72.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 1-5.) Plaintiff subsequently filed this action to seek judicial review.

B. Summary of the ALJ's Findings

The ALJ conducted the required five-step evaluation and concluded that plaintiff was not disabled within the meaning of the Act. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since April 14, 2007, the alleged onset date. (AT 67.) At step two, the ALJ concluded that plaintiff had the following "severe" impairments: "lumbar and cervical degenerative disk disease and obesity." (Id.) At step three, the ALJ determined that plaintiff's impairments, whether alone or in combination, did not meet or medically equal any impairment listed in the applicable regulations. (Id.)

The ALJ further determined that plaintiff had the residual functional capacity ("RFC") to perform "medium work." (AT 68.) In making this RFC determination, the ALJ found that, although plaintiff's "medically determinable impairments could reasonably be expected to cause the alleged symptoms," plaintiff's statements regarding the limiting effects of the alleged symptoms were "not credible to the extent that they are inconsistent with the . . . [RFC] assessment." (Id.) The ALJ gave "great weight" to the state agency physician's determination that plaintiff could do medium work and could "occasionally balance and kneel." (AT 69, 71.) The ALJ also considered, but accorded "minimal weight" to, the medical opinion of the examining consultative physician, Dr. Corkill. (AT 71.)

At step four, the ALJ found that, considering the VE's testimony, plaintiff was capable of performing his past relevant work as an office manager, data entry clerk, and billing clerk, all of which were categorized as "sedentary work" under the applicable regulations. (AT 72.) The ALJ concluded the analysis at step four by determining that plaintiff could perform past relevant work and did not determine whether there were other jobs in the national economy that plaintiff could perform.


The court reviews the Commissioner's decision to determine whether it is (1) free of legal error, and (2) supported by substantial evidence in the record as a whole. Bruce v. Astrue, 557 F.3d 1113, 1115 (9th Cir. 2009). This standard of review has been described as "highly deferential." Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 690 (9th Cir. 2009). "Substantial evidence means more than a mere scintilla but less than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Bray v. Comm'r of Soc. Sec. Admin., 554 F.3d 1219, 1222 (9th Cir. 2009) (quoting Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995)); accord Valentine, 574 F.3d at 690. "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews, 53 F.3d at 1039; see also Tommasetti v. Astrue, 533 F.3d 1035, 1041 (9th Cir. 2008) ("[T]he ALJ is the final arbiter with respect to resolving ambiguities in the medical evidence."). Findings of fact that are supported by substantial evidence are conclusive. 42 U.S.C. ยง 405(g); see also McCarthy v. Apfel, 221 F.3d 1119, 1125 (9th Cir. 2000). "Where the evidence as a whole can support either a grant or a denial, [the court] may not substitute [its] judgment for the ALJ's." Bray, 554 F.3d at 1222; see also Ryan v. Comm'r of Soc. Sec., 528 F.3d 1194, 1198 (9th Cir. 2008) ("'Where evidence is susceptible to more than one rational interpretation,' the ALJ's decision should be upheld.") (quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005)). However, the court "must consider the entire record as a whole and may not affirm simply by isolating a 'specific quantum ...

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