James T. Chilcoat v. Michael Astrue, No. 2:2009cv06301 - Document 23 (C.D. Cal. 2010)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Victor B. Kenton, The decision of the Commissioner will be affirmed, and the Complaint will be dismissed with prejudice. IT IS SO ORDERED. (SEE ORDER FOR FURTHER DETAILS) (lmh)
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James T. Chilcoat v. Michael Astrue Doc. 23 1 2 3 4 5 6 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION 7 8 9 10 11 JAMES T. CHILCOAT, 12 13 14 15 Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of Social Security, 16 Defendant. ) ) ) ) ) ) ) ) ) ) ) ) No. CV 09-06301-VBK MEMORANDUM OPINION AND ORDER (Social Security Case) 17 18 This matter is before the Court for review of the decision by the 19 Commissioner of Social Security denying Plaintiff’s application for 20 disability benefits. 21 consented that the case may be handled by the Magistrate Judge. 22 action arises under 42 U.S.C. §405(g), which authorizes the Court to 23 enter judgment upon the pleadings and transcript of the record before 24 the Commissioner. 25 (“JS”), and the Commissioner has filed the certified Administrative 26 Record (“AR”). Pursuant to 28 U.S.C. §636(c), the parties have The The parties have filed the Joint Stipulation 27 Plaintiff raises the following issue: 28 1. The Commissioner’s decision is not based on substantial Dockets.Justia.com evidence.1 1 2 3 This Memorandum Opinion will constitute the Court’s findings of 4 fact and conclusions of law. After reviewing the matter, the Court 5 concludes that the decision of the Commissioner must be affirmed. 6 7 I 8 SUBSTANTIAL EVIDENCE SUPPORTS THE COMMISSIONER’S DECISION 9 The Court must affirm if the 10 substantial evidence in the record. 11 ALJ’s decision is based on 1035, 1038 (9th Cir. 2008). 12 Tommasetti v. Astrue, 533 F.3d In his portion of the JS, Plaintiff asserts he is disabled due to 13 continuing 14 several occasions, severe reflux, anxiety, and depression. 15 The abdominal pain, Administrative Law nausea, Judge’s heartburn, (“ALJ”) vomiting decision blood (AR on 11-20) 16 follows the familiar five-step sequential evaluation process set forth 17 in 20 C.F.R. §404.1520(a). (See JS at 12-13.) 18 after determining Plaintiff’s residual functional capacity (“RFC”), 19 the ALJ made a Step Five determination that there are jobs that exist 20 in significant numbers in the national economy that Plaintiff can 21 perform, and he was therefore found not disabled under the Social 22 Security Act. (AR 19-20.) In Plaintiff’s case, 23 Critical to the Court’s analysis in this case is the date his 24 disability insurance expired, which is September 30, 2006. (AR 96.) 25 Consequently, it is Plaintiff’s burden to demonstrate that he became 26 27 28 1 Plaintiff, representing himself in pro per, has specifically identified different issues. Thus, the Court identified Plaintiff’s issue in the broadest fashion. 2 not has 1 disabled on or before this date. 2 See Tidwell v. Apfel, 161 F.3d 599, 601 (9th Cir. 1998). 3 The ALJ based his determination on evidence in the record, and 4 also received on June 5, 2008 at a hearing, at which time Plaintiff 5 was represented by counsel, and testimony was taken from Plaintiff, a 6 medical expert (“ME”) and a vocational expert (“VE”). (AR 21-54.) 7 At the hearing before the ALJ, the ME testified that he reviewed 8 relevant evidence of Plaintiff’s treating physicians. The ALJ noted 9 that Plaintiff underwent a ventral hernia repair operation on May 2, 10 2006 (AR 247), but as of August 2006, Plaintiff’s wound was healing 11 well, his staples were removed, and he was advised that he could 12 resume normal activities. (AR 218.) 13 upon his review of the records, Plaintiff’s RFC would include the 14 ability to lift and/or carry 50 pounds occasionally, and 25 pounds 15 frequently; to sit for six hours; stand and/or walk for six hours; 16 posturing limited to occasional; avoidance of unprotected heights and 17 hazardous machinery; and no climbing of ladders, ropes or scaffolds. 18 (AR 41-42.) 19 testified that at the Step Four level of the sequential evaluation, 20 Plaintiff would not be capable of performing his past relevant work; 21 however, the VE identified various jobs within Plaintiff’s RFC that he 22 could perform. (AR 31-32.) In the opinion of the ME, based Utilizing this RFC in a hypothetical question, the VE 23 Plaintiff understandably objects to the ALJ’s evaluation of his 24 non-disability status; however, much of his argument focuses on his 25 descriptions of subjective symptoms following the September 30, 2006 26 date when his disability insurance expired. 27 persuasive or credible argument that the ALJ’s decision that he was 28 not disabled before that date was not based on substantial evidence in 3 Nor has Plaintiff made a 1 the record. 2 abdominal pain has only increased and become worse, the evidence in 3 the record, such as an October 2005 discharge diagnosis, indicates 4 that his abdominal pain had at that time been resolved. (AR 256.) 5 For example, while Plaintiff now asserts that his Although Plaintiff has not specifically complained of an 6 erroneous credibility assessment, the Court notes that the ALJ did 7 find Plaintiff’s credibility as to his subjective symptoms to be 8 depreciated. (AR 17.) 9 objective medical evidence to substantiate those claims; inconsistent 10 statements made by Plaintiff regarding his sobriety; and, finally, a 11 level of activities of daily living (“ADL”) which were not only 12 inconsistent with the alleged degree of pain and impairment, but were 13 transferrable to the exertional requirements of work which he can do 14 under his RFC. As the Commissioner points out, even in February 2007, 15 Plaintiff injured his finger while he attempted to throw a sharp A 16 frame from his house. (AR 433, 437.) 17 testimony that although sometimes his medications were not effective, 18 at other times they did help. (AR 31, et seq.) 19 This finding was based on a lack of sufficient Further, Plaintiff did provide Thus, all in all, while Plaintiff makes heartfelt statements 20 about his deteriorating 21 symptoms, 22 substantiate the ALJ’s decision. 23 test, as noted, the Court cannot find error in the ALJ’s decision. 24 // 25 // 26 // 27 // 28 // the Court must condition, review the increasing adequacy pain, of the and other record to Utilizing the substantial evidence 4 1 For that reason, the decision of the Commissioner will be affirmed, 2 and the Complaint will be dismissed with prejudice. 3 IT IS SO ORDERED. 4 5 DATED: November 16, 2010 /s/ VICTOR B. KENTON UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5
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