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Rochon v. Astrue

November 24, 2009

CHARLES ROCHON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court

ORDER DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT'S CROSS MOTION FOR SUMMARY JUDGMENT

I. BACKGROUND

On December 14, 2005, Charles Rochon ("Plaintiff") filed an application for disability insurance benefits pursuant to the Social Security Act. (Administrative Record ("AR") 91-95.) After the Commissioner denied his application both initially and on reconsideration, Plaintiff requested a hearing and on August 31, 2007 appeared with counsel and testified before an administrative law judge ("ALJ"). (AR 24-58.) On December 28, 2007, the ALJ rendered a decision finding that Plaintiff was not disabled within the meaning of the Act. (AR 5-20.) Specifically, the ALJ held that Plaintiff's substance use disorder was a contributing factor material to the determination of disability before January 10, 2006. (AR 20.) The ALJ held that after January 10, 2006, the time Plaintiff apparently stopped substance use, there are jobs in the national economy that Plaintiff could perform considering his age, education, work experience, and residual functional capacity ("RFC"). (AR 19-20.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. (AR 1-4.)

On February 25, 2009, Plaintiff filed a complaint pursuant to 42 U.S.C. § 405(g) of the Social Security Act requesting judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner" or "Defendant") that denied Plaintiff a period of disability and Disability Insurance Benefits ("DIB"). (Doc. No. 1.) On August 4, 2009, Plaintiff filed a motion for summary judgment. (Doc. No. 17.) On August 26, 2009, Defendant filed a cross-motion for summary judgment and a response in opposition to Plaintiff's motion for summary judgment. (Doc. No. 19.) On August 31, 2009, Plaintiff filed a reply to Defendant's opposition. (Doc. No. 20.)

For the following reasons, the Court denies Plaintiff's motion for summary judgment and grants Defendant's cross-motion for summary judgment.

II. STANDARD OF REVIEW

Section 405(g) of the Social Security Act allows unsuccessful claimants to seek judicial review of a final agency decision. 42 U.S.C. § 405(g). Upon review, the Commissioner's decision must be affirmed if it was supported by substantial evidence and based on proper legal standards. Ukolov v. Barnhart, 420 F.3d 1002, 1004 (9th Cir. 2005). Substantial evidence is "more than a mere scintilla" but less than a preponderance, and is such "relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971); Sandgathe v. Chater, 108 F.3d 978, 980 (9th Cir. 1997). A finding of substantial evidence is determined from the record as a whole. Desrosiers v. Sec'y of Health and Human Servs., 846 F.2d 573, 575-76 (9th Cir. 1988).

III. DISCUSSION

A. The ALJ Provided Specific, Clear and Convincing Reasons for Discounting Plaintiff's Credibility

The ALJ gave clear and convincing reasons for discounting Plaintiff's credibility and properly assessed Plaintiff's RFC because the ALJ considered medical opinion evidence, Plaintiff's daily activities, the lack of aggressive pain management, and the ALJ's own observations.

In order to find Plaintiff's testimony regarding the severity of his pain and impairments unreliable, the ALJ was required to make "a credibility determination with findings sufficiently specific to permit the court to conclude that the ALJ did not arbitrarily discredit claimant's testimony." Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002). The ALJ conducts a two-step analysis to assess subjective testimony where, under step one, the claimant "must produce objective medical evidence of an underlying impairment" or impairments that could reasonably be expected to produce some degree of symptom. Smolen v. Chater, 80 F.3d 1273, 1281-82 (9th Cir. 1996). If the claimant meets this threshold and there is no affirmative evidence of malingering, "the ALJ can reject the claimant's testimony about the severity of her symptoms only by offering specific, clear and convincing reasons for doing so." Id. at 1281, 1283-84. The ALJ may consider many factors in weighing a claimant's credibility, including "(1) ordinary techniques of credibility evaluation, such as the claimant's reputation for lying, prior inconsistent statements concerning the symptoms, and other testimony by the claimant that appears less than candid; (2) unexplained or inadequately explained failure to seek treatment or to follow a prescribed course of treatment; and (3) the claimant's daily activities." Id. at 1284; see Orn v. Astrue, 495 F.3d 625, 637-39 (9th Cir. 2007). If the ALJ's credibility finding is supported by substantial evidence, the court "may not engage in second-guessing." Thomas, 278 F.3d at 959.

The ALJ applied the correct standard in determining the credibility of the Plaintiff. The ALJ found that "the medical determinable impairments could reasonably be expected to produce the alleged symptoms, but the claimant's statements concerning the intensity, persistence, and limiting effects of these symptoms are not entirely credible." (AR at 19.) The ALJ then explained the basis of this negative credibility assessment.

The ALJ considered Plaintiff's daily activities and found that the activities did not indicate a disabling level of impairment (AR at 18.) Plaintiff argues that a claimant's daily activities must be transferable to the work setting and must be carried out for a substantial part of the day to discredit a claimant's statements. (Doc. No. 17 at 9-10.) However, in Vertigan v. Halter, the court held "if a claimant is able to spend a substantial part of [her] day engaged in pursuits involving the performance of physical functions that are transferable to a work setting, a specific finding as to this fact may be sufficient to discredit a claimant's allegations." Vertigan v. Halter, 260 F.3d 1044, 1049 (9th Cir. 2001). In Vertigan, the ALJ did not improperly consider the daily activities, but rather the record did not provide substantial evidence to support a finding that the claimant lacked credibility. Id.A claimant's daily activitiesmay indicate that a claimant cannot return to work, but still may be relevant if the activities indicate the severity of a claimant's limitations was exaggerated. See Valentine v. Comm'r of Soc. Sec. Admin., 574 F.3d 685, 693 (9th Cir. 2009).

The record indicates that Plaintiff spent his days paying bills, visiting family, interacting with his AA group members, doing laundry, performing some household repairs and other light chores, driving, shopping either in person or on the computer, attending auctions, reading and watching television. (AR 40-41, 150, 152-54.) Plaintiff also reported that he could walk "a couple of miles" before needing to rest, and usually got along well with others. (AR 155-56.) These activities suggested a higher level of functioning than what Plaintiff alleged. See, e.g., Stubbs-Danielson v. Astrue, 539 F.3d 1169, 1175 (9th Cir. 2008) (ALJ properly discredited claimant's testimony when he determined that "claimant has normal activities of daily living, including cooking, house cleaning, doing laundry, and helping her husband in managing the finances."); Thomas v. Barnhart, 278 F.3d 947, 958-59 (9th Cir. 2002) (ability to perform various household chores such as cooking, laundry, washing dishes, and shopping suggested ability to perform a range of light work); Fair v. Bowen, 885 F.2d 597, 604 (9th Cir. 1989) (claimant's pain complaints were not credible because he could perform routine household maintenance and shopping, chores, ride ...


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