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Riley v. Astrue

April 9, 2010

JIMETTA YVONEE RILEY, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER, SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Stephen J. Hillman United States Magistrate Judge

MEMORANDUM DECISION

I. PROCEEDINGS

Plaintiff Jimetta Yvonne Riley filed a Complaint on December 8, 2008 seeking review of the Decision of the Commissioner of the Social Security Administration denying Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). The partiesconsented to proceed before the United States Magistrate Judge. Plaintiff submitted a supplemental certified administrative record on May 19, 2009, which included several pages of medical records that were allegedly omitted from the administrative record supplied to the Appeals Council. Plaintiff submitted a request to augment the record on July 13, 2009, however the supplementary pages provided by the plaintiff were already contained in the supplemental certified administrative record (see Administrative Record [AR] 242-44). Plaintiff filed a brief in support of the Complaint on July 13, 2009 and moved for summary judgment. Defendant filed an opposition brief on August 12, 2009, including a cross-motion for summary judgment. Plaintiff filed a reply on August 20, 2009.

II. BACKGROUND

On August 28, 2006, plaintiff filed an application for DIB and SSI alleging an inability to work commencing March 1, 2003.*fn1 The Social Security Administration denied plaintiff's original application initially and upon reconsideration. Plaintiff requested a hearing before an Administrative Law Judge (ALJ), which occurred on October 15, 2007.

In a written opinion issued on November 30, 2007, the ALJ found that plaintiff suffered several severe impairments, including obesity, status post multiple surgeries to the cervical spine, arthritis, and asthma, AR 21, but that these impairments taken together did not equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ found that plaintiff retained a residual functional capacity (RFC) permitting light work with an additional non-exertional limitation due to asthma. (AR 22).

In articulating plaintiff's RFC, the ALJ addressed plaintiff's subjective claims of severe pain in her lower back, knees, left shoulder, and hands, which she alleged caused her constant pain, required her to constantly alternate between sitting and standing positions, and prevented her from typing for more than 20 minutes at a time, AR 29-35. The ALJ found that plaintiff's medically determinable impairments could reasonably be expected to produce her alleged pain symptoms, but that her testimony concerning the intensity, persistence, and limiting effects of her pain symptoms was not entirely credible. (AR 22). The ALJ concluded that plaintiff retained the ability to perform past relevant work as a medical biller, administrative assistant, assembler, or contractor. Plaintiff filed a request for Appeals Council review on January 18, 2008, submitting additional medical records for Appeals Council consideration, which were added to the Administrative Record. The Appeals Council declined review on October 6, 2008.

Plaintiff asserts that the ALJ failed to provide clear and convincing reasons for discounting her excess pain testimony, and that the ALJ did not properly articulate plaintiff's RFC. For the reasons discussed below, this Court finds that plaintiff's claims have merit and remands for further proceedings.

III. STANDARD OF REVIEW

Under 42 U.S.C. § 405(g), this Court reviews the ALJ's decision to determine if: (1) the ALJ's findings are supported by substantial evidence; and (2) the ALJ used proper legal standards. Delorme v. Sullivan, 924 F.2d 841, 846 (9th Cir. 1991). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 401 (1971), but "less than a preponderance," Desroisiers v. Secretary of Health and Human Servs., 846 F.2d 573, 576 (9th Cir. 1988). This court cannot disturb the Commissioner's findings if they are supported by substantial evidence, even though other evidence may exist which supports plaintiff's claim. See Torske v. Richardson, 484 F.2d 59, 60 (9th Cir. 1973), cert. denied, Torske v. Weinberger, 417 U.S. 933 (1974); Harvey v. Richardson, 451 F.2d 589, 590 (9th Cir. 1971).

It is the duty of this court to review the record as a whole and to consider adverse as well as supporting evidence. Green v. Heckler, 803 F.2d 528, 529-30 (9th Cir. 1986). The court is required to uphold the decision of the ALJ where evidence is susceptible to more than one rational interpretation. Gallant v. Heckler, 753 F.2d 1450, 1453 (9th Cir. 1984). The court has the authority to affirm, modify, or reverse the ALJ's decision "with or without remanding the cause for rehearing." 42 U.S.C. § 405(g). Remand is appropriate where additional proceedings would remedy defects in the ALJ's decision. McAllister v. Sullivan, 888 F.2d 599, 603 (9th Cir. 1989).

IV. DISCUSSION

An ALJ is not required to accept every allegation of disabling pain, or else disability benefits would be available for the asking. Fair v. Bowen, 885 F.2d 597, 603 (9th Cir. 1989). However, in the absence of evidence that a plaintiff is malingering, the ALJ must provide clear and convincing reasons to support an adverse credibility determination. Valentine v. Comm'r, 574 F.3d 685, 693 (9th Cir. 2009); Johnson v. Shalala, 60 F.3d 1428, 1433 (9th Cir. 1995).

To determine whether plaintiff's testimony regarding severity of symptoms is credible, the ALJ may consider, among other things, the following evidence: (1) ordinary techniques of credibility evaluation, such as claimant's reputation for lying, prior inconsistent statements concerning 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 ...


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