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Cane v. Commissioner of Social Security

United States District Court, E.D. California

July 27, 2017

LEWIS S. CANE Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Lewis S. Cane seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner”) denying plaintiff's application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II and XVI, respectively, of the Social Security Act (“Act”).[1] In his motion for summary judgment, plaintiff principally contends that the Commissioner erred by finding that plaintiff was not disabled from May 18, 2010, through January 15, 2015, the date of the administrative law judge's (“ALJ”) final decision. (ECF No. 17.) The Commissioner opposed plaintiff's motion and filed a cross-motion for summary judgment, and plaintiff filed a reply brief. (ECF Nos. 23, 27.)

         After carefully considering the record and the parties' briefing, the court DENIES plaintiff's motion for summary judgment, GRANTS the Commissioner's cross-motion for summary judgment, and AFFIRMS the Commissioner's final decision.

         I. BACKGROUND

         Plaintiff was born on February 10, 1963; has completed four or more years of college; can communicate in English; and previously worked as a real estate investor and remodeler. (Administrative Transcript (“AT”) 473, 478-79.)[2] In April 2009, plaintiff was involved in a major motorcycle/car accident, sustaining numerous injuries as described by the consultative examiner, Dr. Fariba Vesali:

He sustained multiple rib fractures, right clavicle fracture, scapula fracture. He had chest tube placement. The claimant sustained open book fracture of pelvis, underwent surgery. He sustained a left femur fracture, underwent open reduction internal fixation of left femur. He sustained thoracic spine fracture, right thumb fracture. He sustained distal left radius and ulna fracture and underwent open reduction internal fixation of left radius and ulna.

(AT 949.)

         On March 5, 2010, plaintiff applied for DIB and SSI, alleging that his disability began on April 11, 2009. (AT 236-37, 407, 414.) After plaintiff's application was denied initially and on reconsideration, an ALJ conducted a hearing on March 20, 2012, at which plaintiff, represented by counsel, testified. (AT 192-235, 236-37, 241-42.) The ALJ subsequently issued a partially favorable decision dated May 18, 2012, determining that plaintiff was disabled from April 11, 2009, through May 17, 2010. (AT 247-67.) Thereafter, on September 19, 2013, the Appeals Council remanded the case to the ALJ for further consideration of the time period beginning May 18, 2010. (AT 275-78.)

         On remand, the ALJ conducted a supplemental hearing on March 12, 2014, at which plaintiff, represented by counsel, and Dr. Phillip McGowan, a medical expert and board-certified orthopedic surgeon, testified. (AT 109-48.) Based on Dr. McGowan's finding of inadequate medical evidence and a recommendation for further evaluation, the ALJ ordered a further consultative orthopedic evaluation. On April 23, 2014, consultative examiner Dr. Fariba Vesali, who is board certified in physical medicine and rehabilitation, performed a comprehensive orthopedic evaluation. (AT 949-53.) Subsequently, on August 27, 2014, the ALJ conducted a further supplemental hearing at which plaintiff, represented by counsel, and Dr. Eric Schmitter, an orthopedic medical expert, testified. (AT 151-91.)

         On January 15, 2015, in a 29-page decision, the ALJ found that plaintiff had not been under a disability, as defined in the Act, from May 18, 2010, through the date of the ALJ's decision. (AT 61-89.) That decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for further review on March 16, 2016. (AT 6-12.) After obtaining an extension from the Appeals Council, plaintiff subsequently filed this action on July 21, 2016, to obtain judicial review of the Commissioner's final decision. (ECF No. 1.)

         II. ISSUES PRESENTED

         On appeal, plaintiff raises the following issues: (1) whether the ALJ improperly rejected the opinion of plaintiff's treating physician, Dr. Rey; (2) whether the ALJ failed to consider the opinion of Dr. Chobanov; (3) whether the ALJ improperly evaluated the mental opinion evidence; and (4) whether the ALJ erroneously discounted plaintiff's testimony.[3]

         III. LEGAL STANDARD

         The court reviews the Commissioner's decision to determine whether (1) it is based on proper legal standards pursuant to 42 U.S.C. § 405(g), and (2) substantial evidence in the record as a whole supports it. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1999). Substantial evidence is more than a mere scintilla, but less than a preponderance. Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003) (citation omitted). It means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007), quoting Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). “The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities.” Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir. 2001) (citation omitted). “The court will uphold the ALJ's conclusion when the evidence is susceptible to more than one rational interpretation.” Tommasetti v. Astrue, 533 F.3d 1035, 1038 (9th Cir. 2008).

         IV. DISCUSSION

         Summary of the ALJ's Findings

         The ALJ evaluated plaintiff's entitlement to DIB and SSI pursuant to the Commissioner's standard five-step analytical framework.[4] As an initial matter, the ALJ found that plaintiff met the insured status requirements of the Act for purposes of DIB through September 30, 2013. (AT 64.) At the first step, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since April 11, 2009, plaintiff's alleged onset date. (Id.) At step two, the ALJ found that plaintiff had the following severe impairments: open book fracture of the pelvis - status post repair with external fixator with residual pelvic pain and right foot drop, obesity, lumbar degenerative disk disease, right knee strain, status post open reduction internal fixation of the distal left radius and ulna, anxiety, depression, and posttraumatic stress disorder. (Id.) However, at step three, the ALJ determined that plaintiff did not have an impairment 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. (AT 65.)

         Before proceeding to step four, the ALJ assessed plaintiff's residual functional capacity (“RFC”) as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 C.F.R. 404.1567(c) and 416.967(c). The claimant can lift and/or carry fifty pounds occasionally and twenty-five pounds frequently. He can stand and/or walk for six hours in an eight-hour workday with breaks every two hours. He can sit for two hours in an eight-hour workday with breaks every two hours. He requires no assistive device for ambulation…[H]e ha[s] no postural limitations. He has no limitation with fingering, feeling or using the right hand. He can frequently reach and handle with the left hand. He can perform unskilled tasks with a specific vocational profile of 1 and 2. He can perform lower level semiskilled tasks with no more than a specific vocational profile of 3.

(AT 67.) At step four, the ALJ determined that plaintiff was unable to perform any past relevant work. (AT 87.) However, at step five, the ALJ found that, considering plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that plaintiff could perform. (Id.) Consequently, the ALJ concluded that plaintiff had not been under a disability, as defined in the Act, from May 18, 2010, through January 15, 2015, the date of the ALJ's decision. (AT 88.)

         Plaintiff's Substantive Challenges to the Commissioner's Determinations

         Whether the ALJ improperly rejected the opinion of plaintiff's ...


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