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Ellis v. Colvin

United States District Court, E.D. California

March 11, 2015

ROBERT RAY ELLIS, Plaintiff,
v.
CAROLYN W. COLVIN, [1] Acting Commissioner of Social Security Defendant.

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

GARY S. AUSTIN, Magistrate Judge.

INTRODUCTION

Plaintiff Robert Ray Ellis ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability insurance benefits under Title II of the Social Security Act. The matter is pending before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.[2]

SUMMARY OF THE ADMINISTRATIVE PROCEEDINGS

Plaintiff filed a Title II application for disability insurance benefits on April 22, 2010, alleging disability beginning on June 1, 2007.[3] AR 34. His claim was denied initially and upon reconsideration. AR 66-70, 74-79. Subsequently, on March 28, 2012, an administrative law judge ("ALJ") conducted a hearing on Plaintiff's claim. AR 28-63. Plaintiff was represented by an attorney and testified at the hearing; a vocational expert also appeared and testified. AR 28-63. On April 15, 2012 the ALJ found that Plaintiff was not disabled. AR 10-17. The Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. AR 1-3. Plaintiff then commenced this action in District Court.

STANDARD OF REVIEW

Under 42 U.S.C. ยง 405(g), this Court reviews the Commissioner's decision to determine whether (1) it is supported by substantial evidence and (2) it applies the correct legal standards. See Carmickle v. Commissioner, 533 F.3d 1155, 1159 (9th Cir. 2008); Hoopai v. Astrue, 499 F.3d 1071, 1074 (9th Cir. 2007).

"Substantial evidence means more than a scintilla but less than a preponderance." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir. 2002). It is "relevant evidence which, considering the record as a whole, a reasonable person might accept as adequate to support a conclusion." Id. 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." Id. The ALJ's findings will be upheld "if supported by inferences reasonably drawn from the record." Batson v. Comm'r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004).

ISSUES PRESENTED FOR REVIEW

Plaintiff argues that the Court should reverse the Commissioner's determination and order the payment of benefits, or, alternatively, remand for further proceedings, because (1) the ALJ did not provide legally sufficient reasons for rejecting the opinion of Consultative Examiner Sarah Song, M.D., who performed the orthopedic consultative examination in this case; and (2) the ALJ did not give legally sufficient reasons for discounting Plaintiff's credibility with regard to his testimony at the administrative hearing. Doc. 15. The Commissioner responds that the ALJ properly evaluated the medical evidence and Plaintiff's credibility. Doc. 17.

DISCUSSION

A. The ALJ Properly Discounted Plaintiff's Subjective Symptom Testimony

(i) Summary of Plaintiff's Testimony

On March 28, 2012, Plaintiff testified at a hearing before an ALJ and was represented by counsel. AR 28-36. Plaintiff had a limited education, had been a mechanic in the Army, and then was a foreman in the pipeline-construction industry for many years. AR 39; 41; 42.

When asked by the ALJ why he could not work, Plaintiff answered as follows: "Well, the reason why is my back is killing me, and then a lot of times I run out of breath. I just cant even, you know, go to the mailbox, you know, and Im aching and breathing hard." AR 47. When the ALJ asked what caused his back to hurt, Plaintiff stated as follows: "No. I dont know. It's arthritis, I know they, you know, got the thing, you know. Itll just, all of [a] sudden, maam, I could be sitting right here and jumping like crazy because my shoulder feels like it's getting an ice pick jabbed in it from a pinched nerve." AR 47. Plaintiff testified that his neck and his back were "just tearing [him] up" during the hearing, and, more specifically, that his pain was 8 out of 10 (with a 10 being at the level where one would have to go to the emergency room) at the time. AR 48. Plaintiff further testified that his pain is often an 8 out of 10 even after taking medication, and that at best, when he is feeling better, it goes down to a 5. AR 48. Plaintiff stated that on the day of his hearing he had taken Advil for his pain, but that he also uses Celebrex. AR 49. Plaintiff also testified that he smoked 5-6 cigarettes a day despite suffering from COPD, and drank alcohol several times a week, sometimes "all week long, " with his friends. AR 49-50. Plaintiff testified that in the past he would forget to take his hypertension medication, but that he had procured a weekly pill dispenser to help him remember to take it. AR 51. Plaintiff testified that he could comfortably lift and carry 5 pounds; that ...


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