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Espejo v. Astrue

May 11, 2009

JOSE ESPEJO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying his application for Disability Insurance Benefits ("DIB"). Plaintiff claims that the ALJ erred in 1) failing to give legally sufficient reasons for rejecting his testimony; 2) concluding that his back condition did not meet the requirements of Listing 1.04A; and 3) relying on the testimony of the vocational expert to conclude that Plaintiff could work (issues three and four). (Joint Stip. at 3-6, 11-14, 17-19, 23-24.) Because the Agency's decision that Plaintiff was not disabled is not supported by substantial evidence, the decision is reversed and the case is remanded.

II. BACKGROUND

On January 24, 2003, Plaintiff applied for DIB. (Administrative Record ("AR") 75-78.) He claimed that he was disabled due to back and leg pain, vision problems, fatigue, insomnia, and depression. (AR 87.) The Agency denied the application initially and on reconsideration. (AR 51-54, 59-62.) Plaintiff then requested and was granted a hearing before an Administrative Law Judge ("ALJ"). (AR 32-35, 69.) On December 2, 2004, Plaintiff appeared with counsel at the hearing and testified. (AR 334-51.) On January 28, 2005, the ALJ issued a decision denying the application. (AR 17-29.) The ALJ determined that Plaintiff was capable of performing the job of "sticker," i.e., someone who sticks pre-glued paper to artificial flowers. The Appeals Council denied Plaintiff's request for review. Thereafter, he commenced this action.

III. ANALYSIS

A. The Credibility Determination

In his first claim of error, Plaintiff contends that the ALJ did not provide clear and convincing reasons for rejecting his testimony. (Joint Stip. at 3-6.) Plaintiff testified that he could sit for no more than ten minutes, stand for no more than 20 minutes, lift nothing heavier than a gallon of milk, and, further, that he spent two to three hours a day lying down in his bed. (AR 341-42, 344.) The ALJ noted this testimony and found that Plaintiff was partially credible, but concluded that the evidence did not fully support these allegations. (AR 25.) For the following reasons, the Court finds that there was no error here.

ALJ's are tasked with judging the credibility of witnesses. In making a credibility determination, an ALJ may take into account ordinary credibility evaluation techniques. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Where, as here, a claimant has produced objective medical evidence of an impairment which could reasonably be expected to produce the symptoms alleged and there is no evidence of malingering, the ALJ can only reject the claimant's testimony for specific, clear, and convincing reasons. Id. at 1283-84. If the ALJ's credibility finding is supported by substantial evidence in the record, the Court may not engage in second-guessing. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

The ALJ relied, in part, on Plaintiff's testimony that he could work--eight hours a day five days a week (AR 346)--in concluding that Plaintiff's other testimony---that he could not work---was not credible. (AR 25-26.) This is a specific, clear, and convincing reason for rejecting Plaintiff's testimony. See, e.g., Tommasetti v. Astrue, 533 F.3d 1035, 1040 (9th Cir. 2008) (claimant's testimony that his diabetes was not a "disabling problem" undermined his prior claim that it was and served as substantial evidence to support ALJ's credibility determination). Further, it is supported by substantial evidence in the record. This alone is enough to support the ALJ's credibility finding.

Plaintiff argues that his testimony that he could work was misinterpreted. (Joint Stip. at 6.) He seems to imply that he was merely acquiescing to the ALJ's question and not really endorsing the proposition that he could work. He argues that his testimony should not be controlling because he does not speak and understand English well. As explained below, though the Court recognizes that Plaintiff had difficulty testifying because of his limited command of the English language, the Court finds that Plaintiff's difficulty with English is not enough to discount his testimony.

At the administrative hearing, Plaintiff attempted to testify through an interpreter but was told by the ALJ that, because he had taken and passed the U.S. citizenship examination in English, he could not use an interpreter unless it was necessary. (AR 337.) It appears that the examination was conducted entirely in English after that point. Throughout his testimony, Plaintiff expressed difficulty understanding the questions and explaining his answers. (AR 338, 340-42, 343-44.) Plaintiff's testimony runs only eight pages in the transcript, yet he testified five times that he did not understand the question and three times that he was unable to explain his answer, presumably because of his difficulty with English. (AR 338, 340-42, 343-44.) Thus, the Court has some general concerns about the way the hearing was conducted and specific concerns about the weight that should be given to Plaintiff's testimony in light of his difficulty understanding English. Nevertheless, after carefully reviewing the transcript, the Court is persuaded that Plaintiff understood the ALJ's question when asked if he would be able to work and, again, when the ALJ asked him to confirm his answer. (AR 346.) As such, Plaintiff's argument that his testimony should be minimized or ignored because of his difficulty with English is rejected.*fn1

The ALJ also rejected Plaintiff's testimony because the medical evidence did not fully support his allegations. (AR 25.) Plaintiff claims that this was improper, too, citing Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Lester is not on point. Though Lester does stand for the proposition that an ALJ cannot discredit a claimant's testimony based on a generalized finding that the evidence does not support the testimony, the ALJ can dismiss a claimant's testimony where he explains how the testimony was undermined by the medical evidence. See Thomas, 278 F.3d at 958-59. This is what the ALJ did here. For example, he contrasted Plaintiff's testimony that he was disabled due to lumbar disc disease and radiculopathy to the left leg with the treating doctor's (Dr. Shamlou's) records that showed that, following surgery, Plaintiff reported that his condition was much improved and his leg pain was essentially gone. (AR 25.) Thus, the ALJ's second reason for rejecting Plaintiff's testimony---that it was not supported by the medical record--was also a valid reason for rejecting the testimony and is supported by substantial evidence in the record. See, e.g., Carmickle v. Comm'r, Soc. Sec. Admin., 533 F.3d 1155, 1161 (9th Cir. 2008) ("Contradiction with the medical record is a sufficient basis for rejecting the claimant's subjective testimony.")

Plaintiff contends that the ALJ overlooked his testimony that he "needed" to lie down in bed two to three hours a day. (Joint Stip. at 3.) This is partially true. The ALJ did not set forth the amount of time Plaintiff said he lies down each day. (AR 25.) But he did note that Plaintiff rested in bed daily. (AR 25.) Plaintiff argues that his "need" to lie down each day prevents him from holding down a job. Again, the Court disagrees. When asked by the ALJ how much time he spent in bed each day, Plaintiff testified that he spent two to three hours a day in bed. (AR 344.) He never testified that he needed to spend that much time in bed, only that he did. (AR 344.) Nor is there any evidence in the medical record that would ...


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