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Hubbard v. Astrue

August 13, 2009

RICHARD HUBBARD, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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. 1) ORDER DIRECTING THE ENTRY OF JUDGMENT FOR DEFENDANT MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, AND AGAINST PLAINTIFF RICHARD HUBBARD

Plaintiff is proceeding pro se and in forma pauperis with an action seeking judicial review of a final decision of the Commissioner of Social Security (Commissioner) denying Plaintiff's application of June 24, 2003, for Supplemental Security Income benefits in which he had claimed to have been disabled since April 15, 2000, due to a bad neck and bad back, which caused neck pain, numbness, and tingling in his fingers, back pain, and numbness, and tingling in the leg. (A.R. 104-06, 169.) The parties have consented to the jurisdiction of the United States Magistrate Judge pursuant to 28 U.S.C. § 636(c)(1), and pursuant to the order of Judge Lawrence J. O'Neill filed March 26, 2008, the matter has been assigned to the undersigned Magistrate Judge to conduct all further proceedings in this case, including entry of final judgment.

The decision under review is that of Social Security Administration (SSA) Administrative Law Judge (ALJ) Christopher Larsen, dated September 27, 2006 (A.R. 40-46), rendered after a hearing held August 17, 2006, at which Plaintiff appeared telephonically and testified telephonically after having chosen to appear and testify without the assistance of an attorney or other representative. (A.R. 341-75). The Appeals Council denied Plaintiff's request for review on June 22, 2007 (A.R. 9-11), and thereafter Plaintiff filed his complaint in this Court on August 22, 2007. Briefing commenced on December 17, 2008 and was completed with the filing of the Commissioner's opposition on March 10, 2009. Plaintiff did not file a reply. The matter has been submitted without oral argument to the undersigned Magistrate Judge.

I. 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).

II. Disability

A. Legal Standards

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. § 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, 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; 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; 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; 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. See 20 C.F.R. § 416.920.

B. The ALJ's Findings

The ALJ found that Plaintiff had severe impairments of status post-cervical fusion, degenerative disc disease, bilateral carpal tunnel syndrome, and left ulnar nerve entrapment, but they did not meet or medically equal a listed impairment. Plaintiff had the residual functional capacity to lift and carry twenty pounds occasionally and ten pounds frequently; stand, walk, and sit for six hours each in an eight-hour work day; and grasp forcefully occasionally, but not reach overhead. (A.R. 42.) Plaintiff could perform his past relevant work as a waiter. (Id. at 45-46.) Accordingly, Plaintiff was not disabled at any time since June 24, 2003, the date Plaintiff's application was filed.

III. Credibility Findings

Plaintiff challenges on various grounds the ALJ's findings concerning his credibility.

A. Legal Standards

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 statements and the reasons for that weight. This documentation is necessary in order to give the individual a full and fair review of his or her claim, and in order to ensure a well-reasoned determination or decision.

S.S.R. 96-7p at 4.

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).

B. Analysis

The ALJ noted Plaintiff's subjective complaints of nerve pain in his neck and shoulder, shooting pains in both arms that he could handle with medications but that were worse without medications, inability to work because he could not clip his own toenails or sit through a television show, lack of desire to go through the pain of multiple neck surgeries as his father did, assignment of light duty and thus lack of a job in prison, his experience of failing grip despite there being nothing in prison to lift, his ability to lift only a gallon of milk but not for long, ability to lift and carry only five to ten pounds for 100 yards, sit for only half an hour without having to stand up or lie down, and cramping in his hands when they were used for long; the ALJ also mentioned that Plaintiff reported going to the yard for about an hour, doing a lap or two, and then sitting down, although he once did fifty sit-ups and thirty pull-ups and as a result was down for three days. The ALJ also noted that Plaintiff testified that he would see a doctor in the upcoming month for pain and medication. (A.R. 43, 345.)

The ALJ concluded that Plaintiff's medically determinable impairments could reasonably be expected to produce his alleged symptoms, but Plaintiff's statement about the intensity, persistence, and limiting effects of his symptoms were not entirely credible. (A.R. 43.) The ALJ expressly found that Plaintiff's credibility was poor. (A.R. 45.)

The ALJ then stated multiple clear and convincing reasons that were supported by substantial evidence in the record for the credibility findings.

In this circuit, valid criteria for evaluating subjective complaints include weak objective support for claims, inconsistent reporting, infrequent treatment, helpful medications, conservative care, and daily activities inconsistent with disability. Tidwell v. Apfel, 161 F.3d 599, 601-02 (9th Cir. 1998). Inconsistent statements are matters generally considered in evaluating credibility and are properly factored in evaluating the credibility of a claimant with respect to subjective complaints. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). Included in the factors that an ALJ may consider in weighing a claimant's credibility are the claimant's reputation for truthfulness; inconsistencies either in the claimant's testimony or between the claimant's testimony and the claimant's conduct, daily activities, or work record; and testimony from physicians and third parties concerning the nature, severity, and effect of the symptoms of which the claimant complains. Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002). The ALJ may consider whether the Plaintiff's testimony is believable or not. Verduzco v. Apfel, 188 F.3d 1087, 1090 (9th Cir. 1999). A claimant's extremely poor work history shows that she has little propensity to work and negatively affects her credibility regarding her inability to work. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

The ALJ appropriately relied on Plaintiff's own testimony that he could handle his pain with medications. Although Plaintiff testified that Neurontin helped to a point as long as he did not do anything (A.R. 345), he also testified that his pain was moderate if he did nothing, and that he could handle it with medications, (A.R. 356). Plaintiff testified that the shooting pain in both his arms "had a mind of its own," and it "attacked [him] whenever it wants to"; he expressly testified that he did not see any pattern between what he was doing and whether he was in pain. (A.R. 356.) Considering all Plaintiff's testimony, the record fairly supports the ALJ's reasoning that Plaintiff himself testified that although he suffered pain, the pain could be endured with medications. It is the ALJ's perogative to weigh and evaluate evidence in the first instance, and this Court will not reweigh the evidence de novo.

The ALJ relied on Plaintiff's poor motivation, stating in pertinent part:

Just as significant is Mr. Hubbard's comment to Dr. Budhram that he needed to "remain disabled to avoid paying FMES." The fact that Mr. Hubbard had no interest in returning to work, and intended to be disabled, does not ...


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