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Owens v. Colvin

United States District Court, Central District of California, Western Division

November 4, 2014

JAMES VICTOR OWENS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.

MEMORANDUM OF DECISION

ANDREW J. WISTRICH UNITED STATES MAGISTRATE JUDGE

Plaintiff filed this action seeking reversal of the decision of defendant, the Commissioner of the Social Security Administration (the “Commissioner”), denying plaintiff’s application for supplemental security income (“SSI”) benefits. The parties have filed a Joint Stipulation (“JS”) setting forth their contentions with respect to the disputed issue.

Administrative Proceedings

The procedural facts, which are undisputed, are summarized in the joint stipulation. [See JS 2-3]. In a written hearing decision that constitutes the Commissioner’s final decision in this matter, an administrative law judge (the “ALJ”) found that plaintiff had severe impairments consisting of heart disease, hypertension, diabetes mellitus, and foot drop, but that he retained the residual functional capacity (“RFC”) to perform light work. [AR 26-30]. The ALJ found that plaintiff could perform his past relevant work as a data entry clerk, which is a sedentary position. [AR 30-31]. Therefore, the ALJ found plaintiff not disabled at any time through the date of her decision. [AR 31].

Standard of Review

The Commissioner’s denial of benefits should be disturbed only if it is not supported by substantial evidence or is based on legal error. Stout v. Comm’r, Soc. Sec. Admin., 454 F.3d 1050, 1054 (9th Cir. 2006); Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). “Substantial evidence” means “more than a mere scintilla, but less than a preponderance.” Bayliss v. Barnhart, 427 F.3d 1211, 1214 n.1 (9th Cir. 2005). “It is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005) (internal quotation marks omitted). The court is required to review the record as a whole and to consider evidence detracting from the decision as well as evidence supporting the decision. Robbins v. Soc. Sec. Admin, 466 F.3d 880, 882 (9th Cir. 2006); Verduzco v. Apfel, 188 F.3d 1087, 1089 (9th Cir. 1999). “Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ’s decision, the ALJ’s conclusion must be upheld.” Thomas, 278 F.3d at 954 (citing Morgan v. Comm’r, Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir. 1999)).

Discussion

Credibility finding

Plaintiff’s sole contention is that the ALJ did not provide specific and legitimate reasons for rejecting the alleged severity of plaintiff’s subjective complaints. [JS 4-6, 10-12].

Plaintiff was represented by counsel during the administrative hearing in August 2012 and testified on his own behalf. [AR 43-61]. Plaintiff testified that on a normal day, he showered, used his computer or read, made lunch, and then sometimes used the computer again or rested. [AR 69]. He said that sometimes he fell asleep while at the computer, even if he had a full night’s sleep, and that he napped “most days” because he often felt “very tired” and “couldn’t keep [his] head up.” [AR 69]. Plaintiff said that he attended church “several times a week.” [AR 76-77]. He also socialized with his brother over the phone. [AR 76-77]. He rented a room from a lady who attends his church and sometimes watched old movies with her. [AR 70, 77].

Plaintiff was hospitalized in July 2011 for congestive heart failure. [AR 63, 68]. He said that he was started on medications in the hospital that improved his blood pressure, but that his symptoms of fatigue and shortness of breath had not changed too much since then. [AR 68]. Plaintiff said that he could get short of breath walking to the car with groceries, climbing stairs, or carrying something. [AR 68-69]. Plaintiff took several medications, including furosemide (the generic form of Lasix), glipizide for diabetes, lisinopril and metoprolol for hypertension, and baby aspirin. [AR 70-71].

Plaintiff testified that he has “foot drop” that affects both feet, but primarily the left foot. [AR 72]. His feet feel numb, and his toes feel “all tangled up.” [AR 71]. When he first started having foot drop symptoms, he could not lift his foot off the ground from the ankle and experienced pain running down his leg. [AR 72]. He said the numbness had improved a lot but was still present. [AR 71]. His doctors have not been able to determine the cause of his foot symptoms. [AR 72]. Plaintiff said that he can stand at church for about 10 minutes before having to sit down, and that he can sit for about an hour. [AR 71]. He can walk in a “semi-normal” fashion. [AR 73]. He can also drive. [AR 77].

Plaintiff had past work in a variety of data entry positions. [AR 71, 73]. Asked why he could no longer do that type of work, plaintiff said that he felt he could not “work a full day without having to lay down and that’s basically the main reason, ” along with his foot drop symptoms. [AR 71]. Plaintiff also testified that he had been selling items on eBay since before 2005. He sold mainly vintage postcards, but in early 2011 he also started selling guitars. [AR 71, 73-76]. Plaintiff said that “a lot of the symptoms were happening” at that point. [AR 76]. For example, plaintiff got short of breath carrying guitars to the post office and either have to stop or have a friend carry them for him. [AR 76].

Once a disability claimant produces evidence of an underlying physical or mental impairment that is reasonably likely to be the source of his or her subjective symptoms, the adjudicator is required to consider all subjective testimony as to the severity of the symptoms. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 1991) (en banc); see also 20 C.F.R. §§ 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). Although the ALJ may then disregard the subjective testimony he considers not credible, he must provide specific, convincing reasons for doing so. Tonapetyan v. Halter, 242 F.3d 1144, 1148 (9th Cir. 2001); see also Moisa, 367 F.3d at 885 (stating that in the absence of evidence of malingering, an ALJ may not dismiss the subjective testimony of claimant without providing “clear and convincing reasons”). The ALJ’s credibility findings “must be sufficiently specific to allow a reviewing court to conclude the ALJ rejected the claimant’s testimony on permissible grounds and did not arbitrarily discredit the claimant’s testimony.” Moisa, 367 F.3d at 885; see Light v. Soc. Sec. Admin., 119 F.3d 789, 792 (9th Cir. 1997) (enumerating factors that bear on the credibility ...


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