The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge
DECISION AND ORDER DENYING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (DOC. 2)
ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF RAFAELA ARREGUIN
Plaintiff is represented by counsel and is proceeding with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application for disability insurance benefits (DIB) under Title II of the Social Security Act (Act). Pursuant to 28 U.S.C. § 636(c)(1), the parties have consented to the jurisdiction of the Magistrate Judge to conduct all proceedings in this matter, including ordering the entry of final judgment.*fn1 The matter is currently before the Court on the parties' briefs, which have been submitted without oral argument to the Honorable Sandra M. Snyder, United States Magistrate Judge.
On May 29, 2001, Plaintiff, born on January 24, 1964, applied for a period of disability and disability insurance benefits (DIB), alleging disability since March 10, 2000, due to a broken hip, pelvis, and left ankle, and resulting pain and inability to stand or sit for very long (A.R. 87, 91.) After Plaintiff's claim was denied initially and on reconsideration, Plaintiff requested, and testified and appeared at, a hearing before the Honorable James P. Berry, Administrative Law Judge (ALJ) of the Social Security Administration (SSA), on December 2, 2002. Plaintiff had the assistance of counsel. (A.R. 60, 67, 13.) On January 29, 2003, the ALJ denied Plaintiff's application for benefits. (Id. at 13-20.) Plaintiff filed in this Court an action for judicial review of the decision, and pursuant to the parties' stipulation, the matter was remanded on February 26, 2004, for a new hearing and decision pursuant to sentence four of 42 U.S.C. § 405(g). (A.R. 367-68.)
A supplemental hearing was conducted on August 29, 2005, and February 23, 2006, before ALJ Berry. (A.R. 341, 575-97.) The ALJ issued a decision on September 26, 2006, denying Plaintiff's application. (A.R. 341-48.) After the Appeals Council denied Plaintiff's request for review on March 28, 2008 (A.R. 325-27), Plaintiff filed the complaint in this action on May 27, 2008. Briefing commenced on January 16, 2009, and was completed on March 17, 2009.
II. Standard and Scope of Review
Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance, Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The Court must consider the record as a whole, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion; it may not simply isolate a portion of evidence that supports the decision. Robbins v. Soc. Sec. Admin., 466 F.3d 880, 882 (9th Cir. 2006); Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985).
It is immaterial that the evidence would support a finding contrary to that reached by the Commissioner; the determination of the Commissioner as to a factual matter will stand if supported by substantial evidence because it is the Commissioner's job, and not the Court's, to resolve conflicts in the evidence. Sorenson v. Weinberger, 514 F.2d 1112, 1119 (9th Cir. 1975).
In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must review the whole record and uphold the Commissioner's determination that the claimant is not disabled if the Commissioner applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See, Sanchez v. Secretary of Health and Human Services, 812 F.2d 509, 510 (9th Cir. 1987); Jones v. Heckler, 760 F.2d at 995. If the Court concludes that the ALJ did not use the proper legal standard, the matter will be remanded to permit application of the appropriate standard. Cooper v. Bowen, 885 F.2d 557, 561 (9th Cir. 1987).
In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. §§ 416(i), 1382c(a)(3)(A). A claimant must demonstrate a physical or mental impairment of such severity that the claimant is not only unable to do the claimant's previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. 42 U.S.C. 1382c(a)(3)(B); Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden of establishing a disability is initially on the claimant, who must prove that the claimant is unable to return to his or her former type of work; the burden then shifts to the Commissioner to identify other jobs that the claimant is capable of performing considering the claimant's residual functional capacity, as well as her age, education and last fifteen years of work experience. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).
The regulations provide that the ALJ must make specific sequential determinations in the process of evaluating a disability: 1) whether the applicant engaged in substantial gainful activity since the alleged date of the onset of the impairment, 20 C.F.R. § 404.1520 (1997);*fn2 2) whether solely on the basis of the medical evidence the claimed impairment is severe, that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities, 20 C.F.R. § 404.1520(c); 3) whether solely on the basis of medical evidence the impairment equals or exceeds in severity certain impairments described in Appendix I of the regulations, 20 C.F.R. § 404.1520(d); 4) whether the applicant has sufficient residual functional capacity, defined as what an individual can still do despite limitations, to perform the applicant's past work, 20 C.F.R. §§ 404.1520(e), 404.1545(a); and 5) whether on the basis of the applicant's age, education, work experience, and residual functional capacity, the applicant can perform any other gainful and substantial work within the economy, 20 C.F.R. § 404.1520(f).
With respect to SSI, the five-step evaluation process is essentially the same. See 20 C.F.R. § 416.920.
B. Findings regarding Disability
The record reflects that Plaintiff suffered a fracture of her pelvis and left ankle in a collision with a motorcycle on March 10, 2000; Plaintiff received hardware for her ankle and underwent open reduction and internal fixation of the pelvic fracture on March 20, 2000. (A.R. 182, 229, 119.) Plaintiff underwent physical therapy, and by May 2000, she reported to Dr. Billys that she walked with a walker; Dr. Billys prescribed a cane, and physical therapy notes reflect that Plaintiff still required a cane for ambulation on September 26, 2000. (A.R. 126, 312.) In June 2000, Dr. Billys noted that Plaintiff's incisions were well-healed; she had full range of motion of the ankle without pain, a slight decrease in internal and external rotation of the lower extremities, with motor power of 5-/5. (A.R. 311.) By late July 2000, Dr. Billys reported that Plaintiff had managed reasonably well since her last visit and demonstrated good healing and acceptable alignment of the fractures; in one area a screw in the ankle was prominent and causing local irritation, and he planned to remove it. (A.R. 310.) In November 2000, Dr. Billys reported continued good management of ambulation with mild tenderness of the trochanteric area, and full range of motion with some mild tenderness over the medial malleolus. (A.R. 308.) In February 2001, the hardware in Plaintiff's ankle and some of the hardware in her hip was removed. (A.R. 306, 140-42.) On May 11, 2001, apparently the last date of Plaintiff's treatment from Dr. Billys, it was noted that there was a three-eighths inch disparity in the length of her legs. Plaintiff was to continue with her walking program. (A.R. 304.) In January 2002, Dr. Billys wrote that Plaintiff had made a slow, progressive recovery and was "functional to a level of light work with no repetitive (sic) and lifting, and a 15 to 20 pound occasional lifting and carrying restriction." (A.R. 303.)
Here, the ALJ concluded that Plaintiff had severe impairments of status post pelvic fracture and left ankle fracture that did not meet or medically equal a listed impairment; Plaintiff had the residual functional capacity (RFC) to lift and carry fifteen to twenty pounds occasionally and ten pounds frequently and to stand, walk, and sit six hours each in an eight-hour workday. (A.R. 344.) The ALJ concluded that through the date last insured, Plaintiff's past relevant work (PRW) as an agricultural sorter did not require the performance of work-related activities precluded by Plaintiff's RFC, and thus Plaintiff was not under a disability at any time from March 10, 2000, the alleged onset date, through March 31, 2001, the date the ALJ found that Plaintiff was last insured. (A.R. 346-47.) Plaintiff does not challenge the ALJ's finding concerning the date last insured.*fn3
IV. Findings concerning Subjective Complaints
The ALJ made the following findings: When the previous decision was issued in this case, the claimant's subjective complaints were evaluated and found only partially credible. The claimant only testified briefly at the hearings held after the case was remanded as the primary issue was the relative weight to be given to the various medical opinions in this case. She did state that she still has pain in her hip, leg, and ankle, that her legs are weak, and that her left foot is always numb. She said that she can only lift 10 pounds, stand 15 minutes at a time and two hours in a workday, sit 5 minutes at a time and one hour in a workday, walk one block, and never bend or squat. She takes Tylenol with codeine and Motrin for pain (Exhibit 7E, page 1). She denied doing much in the way of household chores other than cooking occasionally. She also said she does not attend church.
The current testimony differs in several key respects from her testimony at the first hearing on December 2, 2002. At that time she said she was able to stand for one hour at a time and sit for two hours a day. She also said that her activities included cooking, washing dishes, washing clothes, attending church, and visiting with others both inside and away from her home. Clearly either her condition has worsened since December 2002 or she is inconsistent in her statements regarding her activities and limitations. In either case, her current testimony would not support a finding of additional limitations in her residual functional capacity on and before March 31, 2001.
Plaintiff argues that the ALJ failed to give clear and convincing reasons for concluding that Plaintiff's subjective complaints were only partially credible.
Unless there is affirmative evidence that the applicant is malingering, then where the record includes objective medical evidence establishing that the claimant suffers from an impairment that could reasonably produce the symptoms of which the applicant complains, an adverse credibility finding must be based on clear and convincing reasons. Carmickle v. Commissioner, Social Security Administration,, 533 F.3d 1155, 1160 (9th Cir. 2008). Here, given the absence of evidence of malingering, clear and convincing reasons were required.
The factors to be considered in weighing credibility are set forth in the regulations and pertinent Social Security rulings. They include the claimant's daily activities; the location, duration, frequency, and intensity of the claimant's pain or other symptoms; factors that precipitate and aggravate the symptoms; the type, dosage, effectiveness, and side effects of any medication the claimant takes or has taken to alleviate the symptoms; treatment, other than medication, the person receives or has received for relief of the symptoms; any measures other than treatment the claimant uses or has used to relieve the symptoms; and any other factors concerning the claimant's functional limitations and restrictions due to pain or other symptoms. 20 C.F.R. §§ 404.1529, 416.929; S.S.R. 96-7p.
With respect to the course of analysis directed by the regulations, the ALJ is first obligated to consider all symptoms and the extent to which the symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence. 20 C.F.R. §§ 404.1529(a), 416.929(a). Once it is determined that there is a medically determinable impairment that could reasonably be expected to produce the claimant's symptoms, the ALJ must then evaluate the intensity and persistence of the symptoms to determine how the symptoms limit the capacity for work. §§ 404.1529(b), (c); 416.929(b), (c). The ALJ will consider all available evidence. To the extent that the claimant's symptoms can be reasonably accepted as consistent with the objective medical evidence and other evidence, the symptoms will be determined to diminish the claimant's capacity for basic work activities. §§ 404.1529(c)(4); 416.929(c)(4). A claimant's statements will not be rejected solely because unsubstantiated by the available objective medical evidence. §§ 404.1529(c)(2); 416.929(c)(2).
Further, the pertinent Social Security Ruling provides in pertinent part that an ALJ has an obligation to articulate the reasons supporting the analysis:
...When evaluating the credibility of an individual's statements, the adjudicator must consider the entire case record and give specific reasons for the weight given to the individual's statements.
The finding on the credibility of the individual's statements cannot be based on an intangible or intuitive notion about an individual's credibility. The reasons for the credibility finding must be grounded in the evidence and articulated in the determination or decision. It is not sufficient to make a conclusory statement that "the individual's allegations have been considered" or that "the allegations are (or are not) credible." It is also not enough for the adjudicator simply to recite the factors that are described in the regulations for evaluating symptoms. The determination or decision must contain specific reasons for the finding on credibility, supported by the evidence in the case record, and must be sufficiently specific to make clear to the individual and to any subsequent reviewers the weight the adjudicator gave to the individual's ...