James L. Batson, Sr. v. Commissioner of the Social Security Administration

James L. Batson, Sr. appeals the district court’s affirmance of the Social Security Commissioner’s (“Commissioner’s”) denial of his application for disability insurance benefits under Sections 216(i) and 223 of the Social Security Act. Batson contends that the decision of the Social Security Administration Administrative Law Judge (“ALJ”) that Batson was not disabled as defined by the Social Security Act, and therefore not eligible for Social Security disability insurance benefits, is not supported by substantial evidence and is based on an improper application of legal precedent. We have jurisdiction under 28 U.S.C. § 1291 to consider Batson’s appeal. Because substantial evidence supports the ALJ’s decision and the ALJ committed no legal error, we affirm.

I

Batson suffers from cervical degenerative disease. On September 3, 1997, Bat-son underwent cervical surgery in an attempt to relieve his symptoms. Batson believed the surgery to be successful, but eventually his pain and symptoms returned. On October 27, 1998, Batson was terminated from his employment, and he applied for disability insurance benefits on November 2, 1998, alleging an inability to work because of upper and…

dissenting.

I respectfully dissent. In my view, the administrative law judge (ALJ) relied on two factors that are not supported by the record. I am not convinced that the ALJ necessarily would have reached the same conclusion under a correct analysis of the record. Accordingly, we should reverse and remand for reconsideration.

1. Watching Television

One of the factors on which the ALJ relied in finding Batson’s complaints of pain incredible was this:

(Emphasis added; exhibit references omitted.)

As the majority points out, the record does not support that reasoning. Batson never said that he was “sitting” while watching television. It is possible to watch television while lying down, reclining, or standing, as well as while sitting; and at home one can change positions at will.

Moreover, it is hard to imagine an activity less indicative of work capability than passively watching television or listening to the radio. The ALJ apparently would condemn every claimant to a world of utter silence if the claimant is expected to prove impairment.

2. Dr. Keenen’s Opinion on Disability

The ALJ rejected the disability opinion of Dr. Keenen, Batson’s treating physician, for the…

359 F.3d 1190 James L. BATSON, Sr., Plaintiff-Appellant, v. COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee. No. 02-35471. United States Court of Appeals, Ninth Circuit. Submitted September 12, 2003. * Portland, Oregon. Filed March 9, 2004. COPYRIGHT MATERIAL OMITTED Floyd H. Shebley, Floyd H. Shebley P.C., Oregon City, Oregon, for the plaintiff-appellant. David J. Burdett, Assistant Regional Counsel, Social Security Administration, Office of the General Counsel, Seattle, Washington, for the defendant-appellee. Appeal from the United States District Court for the District of Oregon; John P. Cooney, Magistrate Judge, Presiding, D.C. No. CV-01-01416-JPC. Before: Ruggero J. Aldisert, ** Susan P. Graber, and Ronald M. Gould, Circuit Judges. Opinion by Judge Gould; Dissent by Judge Graber. OPINION GOULD, Circuit Judge. 1 James L. Batson, Sr. appeals the district court's affirmance of the Social Security Commissioner's ("Commissioner's") denial of his application for disability insurance benefits under Sections 216(i) and 223 of the Social Security Act. Batson contends that the decision of the Social Security Administration Administrative Law Judge ("ALJ") that…