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Barrios v. Astrue

February 17, 2009

ARACELI R. BARRIOS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on August 9, 2007, seeking review of the denial by the Social Security Commissioner ("Commissioner") of Plaintiff's application for a period of disability ("POD"), disability insurance benefits ("DIB"), and supplemental security income ("SSI"). The parties filed a Joint Stipulation on April 1, 2008, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, in the alternative, remanding the matter for the correction of legal errors and factual deficiencies; and defendant seeks an order affirming the Commissioner's decision. On June 18, 2008, the parties consented to proceed before the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(c). The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS AND DECISION

On April 12, 2005, plaintiff filed applications for a POD, DIB, and SSI. (Administrative Record ("A.R.") 47, 142.) Plaintiff alleges an inability to work since August 11, 2004, due to lumbar disc disease at L5-S1 and pain in her feet, knees, back, and hands. (A.R. 57.) She has past relevant work experience as a sewing machine operator.*fn1 (A.R. 58.)

The Commissioner denied plaintiff's application initially, and on July 20, 2005, plaintiff requested a hearing on her claim. (A.R. 38, 145.) On May 11, 2006, plaintiff, who was represented by counsel, testified at a hearing before Administrative Law Judge William C. Thompson, Jr. ("ALJ"). (A.R. 157-174.) On August 25, 2006, the ALJ denied plaintiff's claim, and the Appeals Counsel subsequently denied plaintiff's request for review of the ALJ's decision. (A.R. 20-27, 5-7.)

In his written decision, the ALJ found that plaintiff, who has a second grade education obtained in Mexico and was 58 years old at the time of the hearing, has not engaged in substantial gainful activity since August 11, 2004. (A.R. 26.) The ALJ determined that plaintiff suffers from severe osteopenia of the spine, but she does not have any impairment or combination of impairments that meet or medically equal 4. (A.R. 26-27.) The ALJ further found that plaintiff has the residual functional capacity to perform a full range of light work, and her subjective statements regarding her pain and other symptoms were not fully credible. (A.R. 27.) Accordingly, the ALJ found that plaintiff was not disabled at any time on or before the date of his decision.

STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the Commissioner's decision to determine whether it is free from legal error and supported by substantial evidence in the record as a whole. Orn v. Astrue, 495 F.3d 625, 630 (9th Cir. 2007). Substantial evidence is "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citation omitted). The "evidence must be more than a mere scintilla but not necessarily a preponderance." Connett v. Barnhart, 340 F.3d 871, 873 (9th Cir. 2003). While inferences from the record can constitute substantial evidence, only those "'reasonably drawn from the record'" will suffice. Widmark v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006)(citation omitted).

Although this Court cannot substitute its discretion for that of the Commissioner, the Court nonetheless must review the record as a whole, "weighing both the evidence that supports and the evidence that detracts from the [Commissioner's] conclusion." Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988); see also Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). "The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and for resolving ambiguities." Andrews v. Shalala, 53 F.3d 1035, 1039-40 (9th Cir. 1995).

The Court will uphold the Commissioner's decision when the evidence is susceptible to more than one rational interpretation. Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005). However, the Court may review only the reasons stated by the ALJ in his decision "and may not affirm the ALJ on a ground upon which he did not rely." Orn, 495 F.3d at 630; see also Connett, 340 F.3d at 874. The Court will not reverse the Commissioner's decision if it is based on harmless error, which exists only when it is "clear from the record that an ALJ's error was 'inconsequential to the ultimate non-disability determination.'" Robbins v. Soc. Sec. Admin., 466 F.3d 880, 885 (9th Cir. 2006)(quoting Stout v. Comm'r, 454 F.3d 1050, 1055-56 (9th Cir. 2006)); see also Burch, 400 F.3d at 679.

DISCUSSION

I. The ALJ's Finding Regarding The Credibility Of Plaintiff's Claimed Pain Symptoms And Limitations Is Reversed

Plaintiff alleges that the ALJ erred in his consideration of plaintiff's subjective symptom testimony. (Joint Stipulation ("Joint Stip.") at 5.) For the reasons set forth below, the Court agrees.

Once a disability claimant produces objective evidence of an underlying physical impairment that is reasonably likely to be the source of her subjective symptom(s), all subjective testimony as to the severity of the symptoms must be considered. Moisa v. Barnhart, 367 F.3d 882, 885 (9th Cir. 2004); Bunnell v. Sullivan, 947 F.2d 341, 345 (9th Cir. 2001)(en banc); see also 20 C.F.R. ยงยง 404.1529(a), 416.929(a) (explaining how pain and other symptoms are evaluated). "[U]nless an ALJ makes a finding of malingering based on affirmative evidence thereof, he or she may only find an applicant not credible by making specific findings as to credibility and stating clear and convincing reasons for each." Robbins, 466 F.3d at 883. Further, an ALJ may not rely solely on the absence of objective medical evidence supporting the degree of pain ...


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