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Soohoo v. Astrue

March 15, 2010

RITA G. SOOHOO, 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 her applications for Disability Insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred when he: 1) found that she was not credible; 2) rejected testimony from her son and daughter-in-law; 3) failed to accept a treating doctor's opinion that she was disabled; and 4) relied on the vocational expert's testimony, which was flawed. (Joint Stip. at 3-9, 14-16, 18-19, 22-24.) Because the Agency's decision is not supported by substantial evidence, it is reversed and the case is remanded.

II. SUMMARY OF PROCEEDINGS

Plaintiff applied for DIB and SSI on June 16, 2005, alleging that she had been unable to work since February 13, 2004, because of fibromyalgia, arthritis, and depression. (Administrative Record ("AR") 88-89, 127, 137.) The Agency denied the application initially and on reconsideration. (AR 119-31.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 111-15.) Plaintiff appeared with counsel and testified at a hearing on August 22, 2007. (AR 41-87.) On October 10, 2007, the ALJ issued a decision denying benefits. (AR 22-33.) Plaintiff appealed to the Appeals Council, which denied review. (AR 16-20.) Plaintiff then commenced the instant action.

III. DISCUSSION

1. The Credibility Determination

In her first claim of error, Plaintiff contends that the ALJ erred in discounting her testimony that she suffered from pain throughout her body, had poor concentration, was unable to sit or stand for lengthy periods, was forced to spend three to four days per week in bed, and experienced side effects from her medication. (Joint Stip. at 3.) Plaintiff argues that, though the ALJ provided numerous reasons to support his credibility finding, none of them is legally sufficient. (Joint Stip. at 3-9.) For the following reasons, the Court agrees that the ALJ's credibility analysis was flawed and remands for further proceedings.

ALJs are tasked with judging the credibility of witnesses. In making these credibility determinations, ALJs employee ordinary credibility evaluation techniques. Smolen v. Chater, 80 F.3d 1273, 1284 (9th Cir. 1996). Where 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. These reasons must be supported by substantial evidence in the record. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

The ALJ found that Plaintiff had severe impairments consisting of hypothyroidism, chronic fatigue syndrome, degenerative disc disease, degenerative joint disease of the lumbar spine, fibromyalgia, depression, hypertension, and arthritis of the third and fourth fingers of the left hand. (AR 27.) The ALJ concluded that Plaintiff's impairments could reasonably be expected to produce her alleged symptoms (and did not find that she was malingering), but determined that her statements concerning those symptoms were "not entirely credible." (AR 30.) He gave six reasons to support this finding, which are addressed in order below. Though it might appear that the ALJ provided more than enough reasons to discount Plaintiff's allegations of disabling pain, closer examination reveals that some of the reasons are not legally valid and others are not supported by the facts. As such, remand is required.

The ALJ's first justification for finding that Plaintiff was not credible was that she sat "comfortably" throughout the hearing. (AR 30.) In general, this is not a proper basis for discounting a claimant's credibility. See Perminter v. Heckler, 765 F.2d 870, 872 (9th Cir. 1985) (disapproving of so-called "sit and squirm" jurisprudence). This is particularly true here, where Plaintiff complained of discomfort during the hearing, testifying that she could feel her neck stiffening because she had been waiting and had not been able to rest her neck or lay down, and then testifying that she had to stand up during the hearing because her back was hurting. (AR 50, 56.) Thus, this reason for discounting her testimony is rejected.

A second reason offered by the ALJ was that the record "indicates that [Plaintiff] has failed to follow prescribed treatment and has not done her exercises." (AR 30.) Though a claimant's failure to follow prescribed treatment is a proper basis for an ALJ to conclude that a claimant's symptoms are not as painful as alleged, see Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th Cir. 2008) (quotation omitted), here the ALJ did not specify which prescribed treatment Plaintiff failed to follow. The Court has been unable to determine on its own what treatment the ALJ was referring to and, apparently, the Agency lawyer has had no better luck, as counsel failed to set forth what he believes the ALJ was referring to. (Joint Stip. at 9-12.) Thus, this reason is rejected.

Similarly, the ALJ did not offer any basis for his finding that Plaintiff had not done her exercises. The record shows that her rheumatologist, Dr. Zamiri, noted in an initial evaluation that Plaintiff should participate in regular exercise and lose weight in order to manage her fibromyalgia. (AR 279.) Dr. Zamiri did not state how often she needed to exercise, however. Dr. Zamiri also stated in a treatment plan that Plaintiff should "exercise regularly." (AR 270-71.) At the hearing, Plaintiff testified that she does stretching exercises--even though it hurts when she does them--"two, three times a week." (AR 55-56.) In the absence of evidence establishing that Plaintiff was told by her doctor to exercise more frequently and she refused, there was no basis for the ALJ's conclusion that Plaintiff had not done her exercises.

A third reason offered by the ALJ for rejecting Plaintiff's testimony was that Plaintiff left her last job because she was fired, not because she was disabled, and, thereafter, failed to look for work. (AR 30.) Though this may constitute a proper reason for discounting a claimant's testimony, see Thomas, 278 F.3d at 959 (holding ALJ's finding claimant had "extremely poor work history . . . negatively affected her credibility"), Plaintiff correctly points out, and the Agency concedes, that the record establishes that Plaintiff looked for work after she was fired from her job. (AR 47, 208; Joint Stip. at 11.) Thus, though it may have been reasonable for the ALJ to infer that, because Plaintiff stopped working because she was terminated, not because she was in too much pain to work, she was capable of working, the ALJ's error ...


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